United States v. Vance ( 1999 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUL 27 1999
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                        No. 98-7155
    (D.C. No. 98-CR-13-S)
    GEORGE ALEX VANCE, a/k/a                         (Eastern District of Oklahoma)
    George Vance,
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before BRORBY, EBEL and LUCERO, Circuit Judges.
    George Alex Vance appeals the district court’s denial of his motion to
    suppress evidence obtained by execution of an anticipatory search warrant.
    Vance’s attorney has determined that Vance’s appeal is wholly frivolous. The
    attorney has therefore filed a motion to withdraw as attorney of record and a
    corresponding Anders brief outlining Vance’s apparent grounds for appeal. See
    *
    The case is unanimously ordered submitted without oral argument pursuant to
    Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
    binding precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. The court generally disfavors the citation of orders and judgments;
    nevertheless, an order and judgment may be cited under the terms and conditions of 10th
    Cir. R. 36.3.
    Anders v. California, 
    386 U.S. 738
    , 744 (1967). Anders requires that such a brief
    must refer to “anything in the record that might arguably support the appeal.” 
    Id.
    Consistent with this requirement, counsel informs us that appellant wishes to
    allege that the evidence obtained under the authority of the anticipatory search
    warrant was inadmissible because the warrant was issued by a judge of the State
    of Oklahoma, and such search warrants are impermissible under Oklahoma law.
    A copy of counsel’s brief was furnished to Vance, and he was given the
    opportunity to respond or to raise any additional points. He has not done so.
    Based on our own independent examination of the proceedings, we conclude that
    Vance’s claim is wholly without merit. Exercising jurisdiction under 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    , we grant counsel’s motion to withdraw and affirm
    Vance’s conviction.
    On January 27, 1998, the California Bureau of Narcotics alerted members
    of the Oklahoma Bureau of Narcotics and Dangerous Drugs that a package being
    shipped via the United Parcel Service (“UPS”) from California to an address in
    Broken Bow, Oklahoma, contained approximately four pounds of
    methamphetamine. Oklahoma law enforcement officials transported the package
    from the UPS facility in Hugo, Oklahoma, to the Oklahoma District Attorney’s
    Office in Idabel, where they prepared an affidavit to secure a search warrant for
    the Broken Bow residence to which the package was addressed. Agent Donna
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    Hill, a District Attorney Task Force Agent for McCurtain County, Oklahoma,
    learned that UPS had previously delivered packages to appellant at the Broken
    Bow address.
    In the affidavit, Hill stated that upon the delivery of the package to Vance,
    a search warrant should issue for the immediate search of the residence. The
    affidavit requested that a warrant be issued in anticipation of the delivery. The
    affidavit described the residence’s location in detail, but misidentified the precise
    structure that constituted Vance’s residence. When Officer Hill, dressed as a UPS
    employee, delivered the package to Vance, she learned of this mistake and, while
    other officers secured Vance’s residence, immediately returned to the District
    Attorney’s office in Idabel to obtain a new search warrant with the correct
    description of the structure. Upon Hill’s return with a corrected warrant, police
    conducted a search of Vance’s residence and found the drugs for which appellant
    was charged.   1
    After the district court’s denial of appellant’s motion to suppress,
    appellant pled guilty to possession with intent to distribute methamphetamine, in
    1
    This second warrant was also flawed, incorrectly describing Vance’s residence as
    being west, as opposed to east, of the structure that the original anticipatory warrant
    described. Although appellant did not challenge this series of errors in his motion to
    suppress, the district court nonetheless found that the warrant Hill ultimately obtained
    “provides sufficient detail to enable her to ascertain the place to be searched,” and that the
    errors were merely technical and did not affect the warrant’s “practical accuracy.” United
    States v. Vance, No. CR-98-13-S, at 10 (E.D.Okla. Mar. 2, 1998).
    -3-
    violation of 
    21 U.S.C. § 841
    (a)(1) and 
    18 U.S.C. § 2
    , and was sentenced to 87
    months imprisonment and three years of supervised release.
    Our review of the district court’s factual findings in its denial of
    appellant’s motion to suppress evidence based upon a search warrant is only for
    clear error.   See United States v. Hugoboom , 
    112 F.3d 1081
    , 1085 (10th Cir.
    1997). “[Q]uestions concerning the reasonableness of a search under the Fourth
    Amendment, and the existence, or non-existence, of probable cause, are subject to
    de novo review.”      
    Id.
     (citations omitted).
    Appellant’s motion to suppress argued only that because anticipatory search
    warrants are illegal under Oklahoma law, the search and seizure of appellant’s
    residence violated the Fourth Amendment. If the search warrant is constitutional
    under federal law, the contested evidence is admissible in a federal prosecution,
    regardless of whether it would be admissible in state court.      See On Lee v. United
    States , 
    343 U.S. 747
    , 754-55 (1952). “It is . . . well established in this circuit that
    ‘in federal prosecutions the test of reasonableness in relation to the Fourth
    Amendment protected rights must be determined by Federal law even though the
    police actions are those of state police officers.’”    United States v. Le , 
    173 F.3d 1258
    , 1264-65 (10th Cir. 1999) (quoting        United States v. Miller , 
    452 F.2d 731
    ,
    733 (10th Cir. 1971)). Under federal law, a search warrant issued in anticipation
    of a near-future event is not unconstitutional so long as two general requirements
    -4-
    are met: “(1) that it be supported by probable cause and (2) that the warrant or
    supporting affidavit clearly set out conditions precedent to the warrant’s
    execution.” United States v. Rawlings , 
    145 F.3d 1194
    , 1201 (10th Cir. 1998);      see
    also Hugoboom , 
    112 F.3d at 1085
     (affirming district court’s denial of motion to
    suppress evidence obtained pursuant to anticipatory search warrant issued for
    controlled delivery of box containing drugs to package’s addressee).
    Here, the district court found that the police had probable cause in seeking
    the warrant because the package was addressed to Vance’s residence and
    contained drugs. Furthermore, Officer Hill’s affidavit clearly indicates that the
    anticipatory warrant would be executed upon the delivery of the package
    containing the drugs to appellant. The warrant therefore did not violate the
    Fourth Amendment, and the district court correctly denied appellant’s motion to
    suppress the evidence obtained from the warrant’s execution.
    AFFIRMED. Counsel’s request to withdraw is          GRANTED .
    The mandate shall issue forthwith.
    ENTERED FOR THE COURT
    Carlos F. Lucero
    Circuit Judge
    -5-
    

Document Info

Docket Number: 98-7155

Filed Date: 7/27/1999

Precedential Status: Non-Precedential

Modified Date: 4/17/2021