United States v. David Elst ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1175
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID A. E LST,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:08-cr-00117-WCG-1—William C. Griesbach, Judge.
A RGUED JUNE 5, 2009—D ECIDED A UGUST 25, 2009
Before M ANION, R OVNER, and T INDER, Circuit Judges.
T INDER, Circuit Judge. On January 16, 2008, Steven
Scully, an investigator with the City of Green Bay
Police Department in Wisconsin, obtained an antici-
patory search warrant for the home of David A. Elst.
The warrant was executed on January 18, 2008, after a
confidential informant purchased cocaine (under con-
trolled conditions) at the Elst residence. The officers
executing the warrant found cash, including prerecorded
currency used in the controlled buy, and 700 grams of
2 No. 09-1175
cocaine. An indictment was returned in the district
court charging Elst with conspiracy to distribute
cocaine and possession of cocaine with the intent to
distribute it.
Elst moved to suppress the fruits of the search. The
magistrate judge held an evidentiary hearing and recom-
mended that the motion be denied. Elst objected, and
the district court adopted the recommendation. The
court concluded that the warrant failed to establish proba-
ble cause that a triggering event—the delivery of a con-
trolled substance at the Elst residence—would occur or
when it would occur, but nonetheless determined that
the officers relied in good faith on the warrant. It there-
fore determined that the good faith exception to the
exclusionary rule set forth in United States v. Leon, 468
U.S. 897 (1984), applied.
Following the denial of his suppression motion, Elst
pled guilty to the conspiracy count and was sentenced to
92 months’ imprisonment. The other count was dis-
missed on the government’s motion. Having reserved the
right to do so, Elst appeals the denial of his motion to
suppress.
I. The Search
On January 16, 2008, Investigator Steven Scully, a
member of the Brown County, Wisconsin drug task force,
obtained (from a Wisconsin state court judge) an antici-
patory search warrant for the premises occupied or
owned by David A. Elst at 1566 North Road in the Village
No. 09-1175 3
of Ashwaubenon in Brown County, Wisconsin. Investigator
Scully provided an affidavit in support of the warrant,
indicating that a confidential informant (CI) had made
three controlled buys under the supervision of Scully
and other members of the Brown County Drug Task Force.
In the first, on December 3, 2007, the CI purchased one
ounce of cocaine from Gregory Madsen at Madsen’s
residence at an apartment complex on River Bend Terrace
in the Village of Bellevue, Wisconsin. On December 18,
in the second buy, the CI purchased a half ounce of
cocaine from Madsen, again at Madsen’s apartment.
The third controlled buy, on January 10, 2008, occurred
at Elst’s residence at 1566 North Road. Scully’s affidavit
stated that the CI arranged with Madsen to purchase
two ounces of cocaine from Madsen and his supplier.
Madsen had told the CI that they would be going to
the North Road address to complete the transaction.
Investigator Scully and other task force members con-
ducted surveillance as the CI picked up Madsen at his
residence and drove to Elst’s residence. There they ob-
served Madsen enter the residence and return to the CI’s
vehicle. Shortly thereafter, another vehicle arrived, and a
male and female exited it and entered Elst’s apartment.
Approximately ten minutes later, Madsen exited the
residence and returned to the CI’s vehicle. The CI
reported to Scully later that he gave Madsen $1,600 for
the cocaine as they pulled into the driveway of the
Elst residence, and that after the two individuals had
met with Madsen in the residence, Madsen exited the
residence and provided the CI with what was later
4 No. 09-1175
found to be 55.2 grams of cocaine, and $49. The CI re-
mained under surveillance at all times.
Paragraph 7 of Scully’s January 16, 2008 affidavit—which
was titled “Affidavit in Support [of] Anticipatory
Search Warrant”—stated:
Your affiant anticipates that CI will go to 1667
Riverbe[n]d Terrace and pick up Gregory
Madsen and travel to 1566 North Rd. to purchase
cocaine. If Madsen or another person delivers
a controlled substance or a substance represented
to be a controlled substance to the CI, and the
delivery occurs at 1566 North Rd. or the person
making the delivery comes from or returns to
1566 North Rd., then your affiant requests this
warrant be active for a search of the premises.
The state judge issued the warrant on the same day as
Scully’s affidavit.
The warrant was executed on January 18, 2008. That day
the CI, at Scully’s direction, arranged to purchase
cocaine from Madsen. Madsen told the CI to meet him
at the North Road address. Before the controlled buy,
the CI and his vehicle were searched for currency and
contraband and the CI was provided with $1,580 in
prerecorded “buy money.” The CI then placed a phone
call to Madsen who told the CI that he was already at
the North Road address. When the CI pulled up to the
Elst residence, Madsen was waiting outside for him.
Madsen entered the CI’s vehicle and handed the CI a
baggie apparently containing cocaine, and the CI gave
No. 09-1175 5
Madsen the buy money provided by Scully. Madsen
then entered the residence at 1566 North Road.1
After the controlled buy, the CI left the residence to
meet with Investigator Scully in a nearby parking lot. The
CI related what had occurred and turned over the
cocaine just purchased. Investigator Scully and other
task force members proceeded to the Elst residence. There,
the other officers executed the warrant and searched
the residence. They found more than $4,500 in cash,
including prerecorded currency used in the transaction
that evening, and 700 grams of cocaine.
II. Does the Good Faith Exception Apply?
The only issue on appeal is whether the district court
erred in relying on the good faith exception to the
exclusionary rule to deny the motion to suppress. We
review the district court’s findings of fact for clear error
1
The point about when Madsen was observed entering the
residence is the only trial court finding that Elst disputes. The
magistrate judge’s report and recommendation (later adopted
by the district judge) indicates that Madsen briefly entered the
CI’s vehicle and then entered the residence before returning
a short time later with the cocaine. The transcript of the sup-
pression hearing discloses that this finding is erroneous.
Investigator Scully testified that the CI told him that Madsen
was waiting outside when the CI arrived at the Elst residence.
Scully did not testify that the CI said anything about Madsen
going into the residence before giving the CI the cocaine. This
error, however, is not consequential to the good faith deter-
mination.
6 No. 09-1175
and its legal conclusions de novo. United States v.
Millbrook, 553 F.3d 1057, 1061 (7th Cir. 2009).
But as we consider whether the good faith exception
applies to this search, we must keep in mind how an
anticipatory warrant differs from other search warrants.
“An anticipatory warrant is ‘a warrant based upon an
affidavit showing probable cause that at some future
time (but not presently) certain evidence of crime will be
located at a specified place.’ ” United States v. Grubbs, 547
U.S. 90, 94 (2006) (quoting 2 W. LaFave, Search and Seizure
§ 3.7(c), at 398 (4th ed. 2004)). Such warrants generally
“subject their execution to some condition precedent
other than the mere passage of time—a so-called ‘trigger-
ing condition.’ ” Id. An anticipatory warrant requires
the issuing judge to determine “(1) that it is now probable
that (2) contraband[ or] evidence of a crime . . . will be
on the described premises (3) when the warrant is exe-
cuted.” Id. at 96 (emphasis in original). Thus, such a
warrant must satisfy two requirements: there is a fair
probability that contraband or evidence of a crime will
be found in the place to be searched if the triggering
condition occurs and there is probable cause to believe
that the triggering condition will occur. Id. at 96-97.
We are not asked to decide whether the search
warrant issued in this case was supported by probable
cause—the district court concluded that it wasn’t, and
the government doesn’t dispute that on appeal. However,
as our discussion may suggest, a fair argument could
have been made that the warrant here was not defective
at all. After all, the affidavit supporting the issuance of
the warrant was narrowly conditioned on the occurrence
No. 09-1175 7
of a future event, a drug delivery at the Elst residence,
which did subsequently occur. Nonetheless, we will
accept the government’s concession—our focus will be
on whether the officers acted in good faith reliance on
the presumptively defective warrant.
Under United States v. Leon, 468 U.S. 897 (1984), it is
inappropriate to suppress evidence obtained pursuant to
a later-declared invalid warrant if the executing officers
reasonably relied on the warrant. Id. at 922-23; see also
Millbrook, 553 F.3d at 1061-62. That the officers obtained
a warrant is prima facie evidence of good faith.
Millbrook, 553 F.3d at 1062. A defendant may rebut this
by presenting evidence to establish that: (1) the issuing
judge “ ‘wholly abandoned his judicial role’ and failed to
‘perform his neutral and detached function,’ serving
‘merely as a rubber stamp for the police,’ ” United States
v. Olson, 408 F.3d 366, 372 (7th Cir. 2005) (quoting Leon,
468 U.S. at 914); (2) the affidavit supporting the
warrant “was ‘so lacking in indicia of probable cause as
to render official belief in its existence entirely unrea-
sonable,’ ” id. (quoting Leon, 468 U.S. at 923); or
(3) the issuing judge “was misled by information in
an affidavit that the affiant knew was false or would
have known was false except for his reckless disregard
of the truth,” Leon, 468 U.S. at 923. Elst attempts to
rebut the presumption of good faith but fails.
Elst first contends that the good faith exception is
inapplicable because Investigator Scully did not allege
any facts to establish probable cause that contraband
was on a “sure course” to the Elst residence. Along
those lines, Elst argues that Scully’s affidavit contained
8 No. 09-1175
no facts to demonstrate that a triggering condition would
occur, and consequently, the executing officers’ belief in
the existence of probable cause was entirely unreasonable.2
Regarding the “sure course” requirement, some
circuits—even ours—have required a showing that the
contraband was on a “sure course” to the place to be
searched to support a finding of probable cause for an
anticipatory warrant. See United States v. Dennis, 115
F.3d 524, 530 (7th Cir. 1997) (collecting cases). The pur-
pose of the “sure course” requirement is to prevent law
enforcement authorities or third parties from delivering
or causing to be delivered contraband to a residence
to “create probable cause to search the premises where
it otherwise would not exist.” United States v. Brack, 188
F.3d 748, 757 (7th Cir. 1999) (quoting Dennis, 115 F.3d at
529). “The requirement ensures that a sufficient nexus
between the parcel and the place to be searched exists.”
Id. Thus, we have implied that the “sure course” require-
2
Elst suggests that the state court judge abdicated his judicial
role by failing to determine when and if the triggering event
would occur. However, Elst really isn’t claiming that the judge
“wholly abandoned his judicial role” in issuing the warrant
and merely acted as a rubber stamp for police. He offers no
evidence to establish that the judge failed to consider whether
Scully’s affidavit established probable cause to issue a war-
rant. Nor does Elst present any information to suggest that the
judge failed to act as a neutral and detached judicial officer.
At bottom, Elst’s suggestion that the judge abandoned his
judicial role is simply a variation on his contention that the
affidavit was entirely lacking in indicia of probable cause.
No. 09-1175 9
ment is just one way of satisfying the requirement of a
sufficient nexus between the contraband and the place
to be searched. See id. (stating that even if the “sure
course” requirement applied where the defendant
himself delivered the drugs to his hotel room, the
warrant affidavit clearly showed a nexus between the
drugs and the hotel room); see also Dennis, 115 F.3d at
530 (indicating that proof that “the contraband was on a
‘sure course’ to the destination to be searched would
demonstrate a sufficient nexus” between the contraband
and the place to be searched). Other courts have
explicitly said so. See, e.g., United States v. Penney, No. 05-
6821, 2009 WL 2408721, at *12 (6th Cir. Aug. 7, 2009)
(indicating that the “sure and irreversible course” standard
was adopted to govern typical anticipatory search
warrants—those sought to conduct searches triggered
by a police-controlled delivery); United States v. Rowland,
145 F.3d 1194, 1203 n.3 (10th Cir. 1998) (recognizing
that the “ ‘sure course’ ” standard is one way of satisfying
the traditional nexus requirement of probable cause”).
Where the government is not involved in delivering
or causing to be delivered the contraband, we doubt that
the “sure course” requirement applies. See Brack, 188
F.3d at 757; see also Penney, 2009 WL 2408721, at *12 (declin-
ing to apply the “sure and irreversible course” standard
to a search warrant supported by evidence of prior
illicit drug activity in addition to the drug deal arranged
by the CI that connected the residence to be searched
with criminal activity); Rowland, 145 F.3d at 1203 n.3 (“It
is unclear how, or whether, the heightened ‘sure
course’ requirement applies . . . outside the controlled
10 No. 09-1175
delivery context.”). Regardless, Scully’s affidavit clearly
conditions the search on the future occurrence of a
drug delivery to the CI at the Elst residence, and the
search did not take place until law enforcement
confirmed that such a deal did in fact take place. And
the choice of that location was made by Madsen, not the
CI or law enforcement. So reliance on the warrant is not
derailed by “sure course” concerns.
That brings us to Elst’s second contention: The good
faith exception does not apply because Scully created
the circumstances needed to establish probable cause
to believe that contraband was on a “sure course” to Elst’s
residence. While the CI contacted Madsen on January 18
at Scully’s direction, neither Scully nor another law en-
forcement officer caused the delivery of the cocaine to
Elst’s residence. Neither Scully nor another officer had
control over the cocaine that the CI purchased from
Madsen that evening. And, as stated, neither Scully,
another officer, nor the CI determined the location of
either of the drug transactions at Elst’s residence.
Madsen did. Scully did not create the triggering condi-
tion; nor did he create probable cause to search. We
have no reason to believe there was an abuse of the antici-
patory warrant in this case. See Dennis, 115 F.3d at 529-30
(discussing the greater potential for abuse of anticipatory
warrants than other warrants because “the government
or a third party, acting either intentionally or acciden-
tally, could mail a controlled substance to a residence
to create probable cause to search the premises where
it otherwise would not exist”); United States v. Leidner, 99
F.3d 1423, 1431 (7th Cir. 1996) (Wood, J., concurring)
No. 09-1175 11
(discussing problem of government manipulation
unique to anticipatory warrants). Therefore, this effort
by Elst to rebut the presumption that the officers acted
in good faith gets him nowhere.
But we are still left with Elst’s assertion that Scully’s
affidavit contained no facts to demonstrate that a trigger-
ing condition would occur. (Elst does not dispute that
the affidavit identified a triggering event.) However, he
has not shown that the affidavit was so lacking in
indicia of probable cause as to make entirely unrea-
sonable a belief that probable cause existed.
Scully’s affidavit does contain some indication of
illegal drug activity at Elst’s residence. His affidavit
reveals that Scully had been conducting an investigation
for over one month using the CI which included con-
trolled buys on three separate occasions from Madsen
during the investigation. The controlled buys in
December 2007 took place at Madsen’s residence, each
involving less than one ounce of cocaine. The affidavit
stated that the CI had related to Scully that Madsen
typically had an ounce or less at his residence. The most
recent controlled buy, on January 10, 2008, however, took
place at 1566 North Road. This deal was for two ounces
of cocaine—a greater quantity than that involved in the
earlier buys and more than the amount that the CI had
said Madsen typically had at his apartment. The
affidavit further stated that the CI drove Madsen to 1566
North Road where the CI pulled into the driveway,
Madsen entered the residence, and he returned a
short time later to tell the CI to move his vehicle
12 No. 09-1175
because “they would be coming home shortly.”
According to the affidavit, as Madsen predicted, a brief
time passed and then another vehicle pulled into the
driveway and a male and female exited and entered the
Elst residence. A short time after that, Madsen left the
residence and returned to the CI’s vehicle, handing him
a baggie containing 55.2 grams of cocaine and $49 of the
$1,600 the CI had previously given him.
These facts suggest that although Madsen typically
had an ounce of cocaine at home, he had to go elsewhere
to obtain greater quantities, and the Elst residence at
1566 North Road was one place where he had done so
very recently. Investigator Scully’s anticipation that
Madsen would again deliver cocaine to the CI at 1566
North Road does not amount to probable cause. None-
theless, his anticipation is based on the ongoing drug
investigation and the CI’s continuing relationship with
Madsen which are suggestive of future transactions.
Scully’s anticipation is also based on his training, experi-
ence, and participation in other narcotics investigations.
Experienced law enforcement officers (as well as experi-
enced magistrates) are permitted to draw reasonable
inferences from the facts based on their training and
experience. See, e.g., United States v. Curry, 538 F.3d 718,
729 (7th Cir. 2008) (stating that in issuing a search
warrant a magistrate judge is entitled to draw rea-
sonable inferences about where the evidence is likely to
be found); United States v. Reed, 443 F.3d 600, 603 (7th
Cir. 2006) (indicating that in determining whether
probable cause exists officers are entitled to draw rea-
sonable inferences based on their training and experience).
All of these considerations support the conclusion that
No. 09-1175 13
Scully’s affidavit was not so lacking in indicia of
probable cause as to render official belief in its
existence entirely unreasonable.
Furthermore, once the “triggering condition” occurred,
the officers could have reasonably relied in good faith on
the warrant. The occurrence of the triggering condition
can establish probable cause for the search. See Grubbs,
547 U.S. at 97. The “triggering condition” occurred
before the officers executed the warrant: Madsen delivered
cocaine to the CI outside 1566 North Road and immedi-
ately thereafter entered the residence there. The fact
that Madsen was already waiting outside when the CI
arrived and then immediately entered the residence,
apparently with the $1,500 the CI had given him,
suggests that Madsen obtained the cocaine inside the
Elst residence (and returned with the money to pay his
source, perhaps). Otherwise, there was no reason for
Madsen to meet the CI at 1566 North Road—he just as
easily could have had the CI meet him at his apartment or
some other location. Once the triggering condition oc-
curred, the officers had probable cause to search the Elst
residence for cocaine, U.S. currency, and other items
used in connection with drug transactions. It should be
noted that if Scully, instead of relying on the previously
obtained anticipatory warrant, had returned to (or even
telephoned) the judge who had issued the warrant (or
had contacted another judge, for that matter), he could
have presented plenty of probable cause to obtain a
“regular” search warrant for the Elst residence based
on just the events that had taken place there that
evening, to say nothing of the prior transactions.
14 No. 09-1175
Finally, Elst makes a conclusory, undeveloped, one-
paragraph argument that Scully knew there was no
triggering condition which he could allege and thus
Scully was reckless and dishonest in representing that
there was probable cause to believe contraband was on
a “sure course” to Elst’s residence. Perfunctory and
undeveloped arguments as well as arguments unsup-
ported by pertinent authority are waived. See United
States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006). Elst
makes this argument only in his summary of arguments
section; he does not develop it in his argument section,
nor does he cite any pertinent legal authority. Therefore,
he has waived the argument that Scully was reckless
and dishonest in portraying that probable cause existed.
Elst has not rebutted the presumption that the officers
acted in objective good faith reliance on the warrant.
Exclusion of evidence is an “extreme sanction” and
“applies only where it ‘results in appreciable deter-
rence.’ ” Herring v. United States, 129 S. Ct. 695, 700 (2009)
(citations omitted). It would not here. At worst, Investiga-
tor Scully negligently failed to include one obvious fact
in his otherwise complete affidavit—that the CI would
make yet another effort to purchase drugs from Madsen
as he had in the past. (Perhaps that fact could have
been inferred from the “If Madsen . . . delivers a con-
trolled substance . . . at 1566 North Rd.” language from
the affidavit.) But even without that allegation in the
affidavit, the officers should not be deprived of good
faith reliance on the warrant. Hence, as the district court
properly found, suppression would be inappropriate in
this case.
No. 09-1175 15
III. Conclusion
We uphold the denial of Elst’s motion to suppress
and A FFIRM the district court’s judgment.
8-25-09