United States v. Edwin Calligan ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐1817
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
EDWIN CALLIGAN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:17‐CR‐51‐001 — Holly A. Brady, Judge.
____________________
ARGUED AUGUST 3, 2021 — DECIDED AUGUST 6, 2021
____________________
Before SYKES, Chief Judge, and BRENNAN and ST. EVE, Cir‐
cuit Judges.
ST. EVE, Circuit Judge. Before his trial on gun and drug
charges, Edwin Calligan moved to suppress evidence from
the search of a house he frequented. He argued that the un‐
derlying warrant was anticipatory and should not have been
executed because its triggering condition—the controlled de‐
livery of a package with drugs, addressed to him, that police
had intercepted—never occurred. Yet the district court
2 No. 20‐1817
concluded that the warrant was supported by probable cause
and had no triggering condition. The court therefore admitted
the evidence, and a jury convicted Calligan. Because the dis‐
trict court judge was correct and, in any event, police relied
on the warrant in good faith, we affirm.
I.
The mother of Calligan’s girlfriend owned the house at is‐
sue and it was located in Fort Wayne, Indiana. Jonathan
Goehring, a Special Agent from the Department of Homeland
Security, obtained the warrant. His supporting affidavit re‐
ported that, about ten days earlier, customs agents had inter‐
cepted a package containing one kilogram of 5F‐ADB (a syn‐
thetic cannabinoid and controlled substance, see 21 C.F.R.
§ 1308.11(d)(73)), addressed to that house, with Calligan as
the addressee. Calligan had received more than 50 interna‐
tional shipments there—including 4 in the past several
weeks—and local police had recently seen Calligan’s car
parked in the driveway. Calligan also had a criminal history:
Agent Goehring reported Indiana convictions for attempted
murder, criminal recklessness, and unlawfully resisting po‐
lice, as well as a pending gun‐possession charge. As for the
foreign shipper of Calligan’s package, customs agents had re‐
cently found fentanyl analogues in another package the ship‐
per had mailed to a different addressee.
The agent further explained that, in his experience, traf‐
fickers often store drugs, packaging materials, cash proceeds,
documentation, and guns at homes they do not own. He
sought to search the house for those items here.
Finally, Agent Goehring asserted that there was “cur‐
rently sufficient probable cause for this issuance of this search
No. 20‐1817 3
warrant.” But then he noted his “intention … to make a con‐
trolled delivery of the [package] containing the 5F‐ADB” to
the house, saying he would (“will”) execute the warrant after
the delivery.
The magistrate judge issued a warrant that said the “affi‐
davit(s), or any recorded testimony, establish probable
cause.” The magistrate judge’s only express condition was
that the search take place during daylight on or before
June 30, 2017; the expected delivery of the package went un‐
mentioned.
Although police did deliver the package, it no longer con‐
tained drugs. Rather, agents had replaced the controlled sub‐
stance with flour and brown sugar. After Calligan accepted
the package, the officers executed the warrant and found
money, a gun, and a notebook that contained both the pack‐
age’s tracking number and a recipe for making raw 5F‐ADB
into a consumable product. In the warrant return that fol‐
lowed, however, Agent Goehring inaccurately reported that
police had also recovered a kilogram of 5F‐ADB—i.e., the
package’s original contents.
The seized evidence led to charges against Calligan for
possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), im‐
porting a controlled substance, see 21 U.S.C. § 952, and at‐
tempting to distribute a controlled substance, see id. § 846.
And those charges led to two suppression motions at issue
here.
In the first motion, Calligan argued that because the war‐
rant application said police would deliver actual drugs to
him, the agent’s replacement of the drugs with flour and
sugar took the search outside the warrant’s scope. In doctrinal
4 No. 20‐1817
terms, Calligan was characterizing this as an “anticipatory
warrant” where the “triggering condition” for probable cause
had not been satisfied. United States v. Grubbs, 547 U.S. 90, 94
(2006) (quoting Wayne R. LaFave, 2 Search and Seizure
§ 3.7(c) (4th ed. 2004)). The district judge referred this sup‐
pression motion to a magistrate judge—the same one who
had issued the warrant—for an evidentiary hearing.
At that hearing, Agent Goehring testified that he was fa‐
miliar with anticipatory warrants but had not sought one
here. Rather, he had believed there was probable cause with‐
out any controlled delivery and had mentioned the delivery
only because he predicted making it as part of executing the
warrant. And, he continued, he replaced the drugs because
otherwise he would have had to include a tracking device—a
step that he concluded might endanger officers if Calligan
found the device before the search began, given his violent
history. Agent Goehring, however, thought through that
problem only after obtaining the warrant. As for the incorrect
information in the return, he testified that it was a mistake; he
had not intended to deceive anyone.
The magistrate judge recommended denying Calligan’s
motion. He determined that Agent Goehring had not meant
to condition the warrant on a delivery of actual drugs and did
not include that condition in his affidavit; nor had the magis‐
trate judge separately imposed such a condition on the war‐
rant. In any event, there was probable cause without the con‐
trolled delivery. Over Calligan’s objections, the district judge
adopted these findings and recommendations and denied the
motion, as well as Calligan’s later motion to reconsider.
Then, in a second motion to suppress, Calligan cited
Franks v. Delaware, 438 U.S. 154 (1978), and contended that
No. 20‐1817 5
Agent Goehring’s warrant application relied on materially
false representations (i.e., that police would deliver drugs to
the home before the search). This time a different district
judge (to whom the case had been reassigned) referred the
motion to a second magistrate judge. That magistrate judge,
in turn, recommended denying the motion without a hearing
because Agent Goehring’s affidavit yielded probable cause
and the replacement of the drugs was immaterial. The district
judge agreed and denied this motion too.
Then, at trial, the government relied on the items seized
from the home. The jury convicted Calligan on all counts, and
he was sentenced to 210 months in prison.
II.
On appeal, Calligan renews his argument that the warrant
was anticipatory and that replacing the drugs with flour and
sugar meant the triggering condition went unsatisfied, so that
probable cause for the search never existed. Alternatively, he
contends that Agent Goehring’s failure to tell the issuing
magistrate judge about this replacement meant the warrant
rested on materially false information.
But the warrant was not anticipatory, and delivery of the
actual drugs to Calligan was not a triggering condition. Ob‐
jectively, no language in the warrant or affidavit conditions
probable cause upon that anticipated delivery. Subjectively,
Agent Goehring testified—credibly, in the view of the magis‐
trate judge who issued the warrant—that he was not seeking
an anticipatory warrant. By contrast, the affidavit in Grubbs
insisted that the search would “not occur unless and until”
the triggering condition was met. Grubbs, 547 U.S. at 94. Sim‐
ilarly, in United States v. Dennis, the affidavit requested
6 No. 20‐1817
permission to search “if and only if” the condition was satis‐
fied. 115 F.3d 524, 528 (7th Cir. 1997); see also United States v.
Elst, 579 F.3d 740, 743 (7th Cir. 2009) (warrant application said
that “if” condition occurred, “then your affiant requests this
warrant be active for a search of the premises”).
Additionally, the magistrate judge rightly concluded that
there was probable cause without the delivery of actual
drugs. See LaFave, 2 Search and Seizure § 3.7(c) (6th ed. 2020)
(explaining that probable cause absent the purported trigger‐
ing condition may support a finding that the warrant was not
anticipatory). Probable cause is established when, consider‐
ing the totality of the circumstances, there is a “fair probabil‐
ity that contraband or evidence of a crime will be found in a
particular place.” United States v. Carswell, 996 F.3d 785, 791
(7th Cir. 2021) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)). We defer to the decision of the issuing judge so long
as substantial evidence supported it. Id.Here, when he issued the warrant, the magistrate judge
reasonably found a fair probability that the house contained
evidence of drug crimes. Agent Goehring’s affidavit estab‐
lished that a shipper who had sent illegal drugs to other ad‐
dresses sent a package to the house, addressed to Calligan,
containing a distribution quantity of a controlled substance.
See United States v. Dessart, 823 F.3d 395, 400–01 (7th Cir. 2016)
(intercepted packages likely containing controlled substance
provided cause for search of house to which they were ad‐
dressed); see also United States v. Delgado, 981 F.3d 889, 898
(11th Cir. 2020) (same, for two packages of controlled sub‐
stances addressed to resident). The affidavit further estab‐
lished that Calligan’s car had been parked at the house and he
had recently received other international deliveries there.
No. 20‐1817 7
Finally, Agent Goehring opined that, in his experience, drug
traffickers often keep drugs, records, packaging supplies,
cash, and guns where they live (even if they do not own the
property)—and the magistrate judge who issued the warrant
was entitled to rely on that experience. See United States v.
Orozco, 576 F.3d 745, 749 (7th Cir. 2009).
That leaves Calligan’s contention that Agent Goehring
knowingly made false, material statements to get the war‐
rant—specifically, that agents would deliver actual drugs be‐
fore searching the home. He also urges that Agent Goehring’s
misstatement on the warrant return (that the drugs from the
intercepted package were found in the resulting search) is ev‐
idence of his intent to deceive the magistrate judge.
This argument lacks merit. To be sure, a search warrant is
invalid if police obtain it by deliberately or recklessly present‐
ing false, material information. See Franks, 438 U.S. at 155–56;
United States v. Woodfork, 999 F.3d 511, 516 (7th Cir. 2021). But
to receive a hearing on this point, Calligan had to make an
initial showing that Agent Goehring’s incorrect prediction
was material to the warrant. See United States v. Clark, 935 F.3d
558, 563 (7th Cir. 2019). He has not. The supposed misrepre‐
sentation would not have altered the magistrate judge’s prob‐
able‐cause determination; as we explained, there was proba‐
ble cause for the search without the delivery of the actual
drugs. And Agent Goehring erred in filling out the warrant
return after the magistrate judge had made his initial proba‐
ble‐cause finding. As such, it does not affect the validity of the
warrant. Nor is it convincing proof of anything nefarious on
Agent Goehring’s part.
Finally, even if probable cause technically were lacking,
Agent Goehring’s good faith would make the evidence
8 No. 20‐1817
admissible. See United States v. Leon, 468 U.S. 897, 922 (1984).
The mere fact that an officer sought a warrant generates a pre‐
sumption of good faith. See United States v. Mykytiuk, 402 F.3d
773, 777 (7th Cir. 2005). Calligan argues that he can rebut that
presumption because Agent Goehring was “dishonest or
reckless in preparing the supporting affidavit.” Id. But the dis‐
trict judge credited the agent’s plausible explanation for re‐
placing the drugs, and that he was, at worst, negligent in fill‐
ing out the warrant return. See Elst, 579 F.3d at 747. Calligan
has not shown that these rulings are erroneous.
AFFIRMED