United States v. Rowland

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 2 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 96-1512
No. 97-1016
v.
JAMES FREDERICK ROWLAND,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 96-CR-100-N)
Arthur S. Nieto, Denver, Colorado, for Appellant.
Mark J. Barrett, Assistant United States Attorney, Denver, Colorado (Henry L.
Solano, United States Attorney, Charlotte J. Mapes, Assistant United States
Attorney, Denver, Colorado, on the brief), for Appellee.
Before TACHA, McKAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
James Rowland appeals the district court’s denial of his motion to suppress
evidence obtained from his residence pursuant to an anticipatory search warrant.
Rowland argues the warrant was invalid for lack of probable cause because the
supporting affidavit failed to establish a sufficient nexus between the items to be
seized and Rowland’s residence. Although we conclude the warrant was not
supported by probable cause, we affirm the district court’s denial of the motion to
suppress based on the good-faith exception to the exclusionary rule.
BACKGROUND
In 1993, United States Postal Inspector Patrick Carr learned that Rowland
had filled out and mailed a questionnaire distributed by a sexually oriented
business, expressing an interest in child pornography. In this questionnaire,
Rowland gave his name and the address of a private post office box and indicated
that he was interested in incest, pedophilia, and transvestites. About three years
later, Carr targeted Rowland in a child pornography sting operation. On February
5, 1996, Carr mailed to Rowland’s private post office box a brochure which had a
picture of a young girl on a bicycle and which stated: “New in Colorado!! Not
your typical fantasy!!! Forbidden Lifestyles!!!” The brochure provided a
telephone number and an e-mail address. Within a few days, Rowland called the
telephone number and left a message indicating an interest in young girls, video
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tapes, magazines, and “possibly meetings.” Rowland gave the telephone number
of a public pay phone and left the address of his private post office box.
On February 13, in response to the telephone message, Inspector Carr sent a
second solicitation letter to Rowland. This letter thanked him for calling the
“Family Affairs Hotline.” The letter contained descriptions and prices of nine
sexually explicit video tapes, referred to the availability of “a wide variety of both
foreign and domestic magazines,” and provided an order form. The following
day, Rowland mailed an order for two video tapes, along with a money order for
$125. Rowland also requested information about the magazines.
After receiving this order, government agents conducted surveillance of
Rowland’s post office box to determine his identity and to determine where he
went after collecting his mail. The agents obtained a description of Rowland,
learned that he worked for the Colorado Department of Revenue, and determined
his home address. The agents also learned that the private post office box had
been rented by someone other than Rowland, but Rowland was authorized to
receive mail there.
On March 7, 1996, the government applied for and a magistrate judge
issued an order for the installation of a mobile tracking device (“beeper”) in a
package containing the two ordered video tapes to be delivered to Rowland’s
private post office box. The government also obtained an anticipatory warrant to
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search Rowland’s residence. The search warrant allowed investigators to search
Rowland’s residence once the package containing the video tapes was brought
into the residence.
On March 8, the government delivered a package containing the two
ordered video tapes and the beeper to Rowland’s private post office box. At
about 10:30 a.m., government agents observed Rowland pick up the package and
walk back to his place of employment. While Rowland was walking back to work
with the package, the beeper went into alarm mode, indicating that the package
had been opened. The agents maintained surveillance outside Rowland’s place of
employment for the remainder of the day. Rowland was observed leaving his
work at lunch time, but the beeper indicated that the package remained in the
building.
Before Rowland left work at about 4:30 p.m., the beeper stopped
functioning because the batteries had been exhausted. Government agents
observed Rowland leave the building and walk to his car carrying a backpack and
plastic bag, but they could not determine visually or by radio signal whether
Rowland had the video tapes. The agents followed Rowland as he then drove for
about six blocks, turned around, went back to his work, parked his car, and
entered the building for a minute or two. He then returned to his car and the
agents followed as he drove straight home.
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Once Rowland was home, government agents observed him enter his
residence, but they were still unable to determine whether he had the video tapes.
Accompanied by three or four police officers, Inspector Carr then approached
Rowland’s residence and knocked on the door. Rowland’s wife answered the
door. Carr identified himself and said he wanted to speak to Rowland.
Rowland’s wife invited them in. Rowland then appeared and Carr questioned him
about the package he had received in the mail. Rowland at first stated he didn’t
know what Carr was talking about. Carr told Rowland he had been observed
picking up the package and taking it to his place of employment. Rowland
responded that the package was at work. Carr then asked him where the contents
of the package were. Rowland pointed to a backpack about four or five feet away
and said the video tapes were in the backpack. Carr then showed Rowland the
search warrant and notified him that the officers were going to search his
residence. In the course of the search, the video tapes were found in the
backpack. In accordance with the warrant, the officers also seized other items
during the search of Rowland’s home, including sexually oriented magazines and
books.
Rowland was charged with knowingly receiving in the U.S. mail a package
containing video tapes with visual depictions of minors engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). Rowland subsequently
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filed a motion to suppress the evidence seized at his home pursuant to the
anticipatory search warrant. After a hearing on the motion to suppress, the
district court denied Rowland’s motion, determining that the warrant was
supported by probable cause and that the police had satisfied the warrant
conditions in executing the warrant. Alternatively, the district court determined
that even if the warrant was invalid, the evidence need not be suppressed because
the Leon good-faith exception applied to the search.
Rowland then entered a conditional guilty plea to the charge of receiving
child pornography, reserving the right to appeal the district court’s denial of his
motion to suppress. See Fed. R. Crim. P. 11(a)(2). Rowland was sentenced to
fifteen months imprisonment, followed by three years of supervised release.
On appeal, Rowland argues the district court erred in failing to suppress the
evidence obtained from his home pursuant to the anticipatory search warrant.
Rowland specifically asserts the anticipatory warrant was defective for lack of
probable cause to believe the contraband would be found in Rowland’s home. 1
Alternatively, Rowland asserts that, assuming the warrant was valid when issued,
1
Rowland originally argued on appeal that anticipatory warrants are per se
unconstitutional. After the filing of Rowland’s initial brief, however, this court
issued United States v. Hugoboom, 112 F.3d 1081 (10th Cir. 1997), in which the
court held that anticipatory warrants are not per se unconstitutional. See id. at
1085-86. Rowland accordingly abandoned this argument in his reply brief and we
do not address the argument in this opinion.
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“the warrant’s efficacy dissipated” when the beeper failed. Rowland also argues
the Leon good-faith exception does not apply and therefore suppression of the
evidence obtained pursuant to the invalid search warrant is appropriate.
This court exercises jurisdiction pursuant to 28 U.S.C. § 1291. In
reviewing the district court’s denial of Rowland’s motion to suppress, we accept
the district court’s factual findings unless clearly erroneous and view the evidence
adduced at the suppression hearing in the light most favorable to the government.
See United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir. 1995). The
ultimate determination of the reasonableness of the search and seizure under the
Fourth Amendment, however, is a question of law which we review de novo. See
id.ANALYSIS
I. ANTICIPATORY WARRANTS
This court first considered the constitutionality of anticipatory warrants in
United States v. Hugoboom, 112 F.3d 1081 (10th Cir. 1997). In Hugoboom, the
court joined the majority of other circuits in holding that anticipatory search
warrants, or warrants “which only become[] effective upon the happening of a
future event, [are] not unconstitutional per se.” Id. at 1085; see also United
States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir. 1993) (reviewing general approval
of anticipatory warrants by federal circuits). The court further recognized that
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anticipatory warrants are not “‘somehow suspect or legally disfavored,’” but have
instead “repeatedly been upheld, assuming probable cause and so long as the
conditions precedent to execution are clearly set forth in the warrant or in the
affidavit in support of the anticipatory warrant.” Hugoboom, 112 F.3d at 1085(quoting United States v. Gendron, 18 F.3d 955, 965 (1st Cir. 1994)).
In determining that anticipatory warrants are not per se unconstitutional,
the court noted that the United States Constitution only requires that “‘a search . .
. not be “unreasonable,” and that warrants . . . be supported by “probable
cause.”’” Id. (quoting Gendron, 18 F.3d at 965 (quoting U.S. Const. amend. IV)).
The court recognized that
“[t]here is nothing unreasonable about authorizing a
search for tomorrow, not today, when reliable
information indicates that [the contraband] will reach
the house, not now, but then. Nor does it seem
automatically unreasonable to tie the warrant’s search
authority to the future event that brings with it the
probable cause . . . . In principle, the use of a
‘triggering event’ can help assure that the search takes
place only when justified by ‘probable cause.’”
Id. (quoting Gendron, 18 F.3d at 965) (citation omitted).
As the court indicated in Hugoboom, the two general requirements for a
valid anticipatory warrant are (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. See id.-8-
A. Probable Cause
Anticipatory warrants differ from traditional search warrants in that at the
time of issuance they are not supported by probable cause to believe that
contraband is currently located at the place to be searched. See United States v.
Dennis, 115 F.3d 524, 528 (7th Cir. 1997). “In fact, a court issues an anticipatory
warrant with the knowledge that the contraband does not presently exist at the
location to be searched.” Id. This does not mean, however, that anticipatory
warrants need not be supported by probable cause. Instead, before issuing an
anticipatory warrant the magistrate must determine, based on the information
presented in the warrant application, that there is probable cause to believe the
items to be seized will be at the designated place when the search is to take place.
See United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989) (“[T]he fact that
the contraband is not ‘presently located at the place described in the warrant’ is
immaterial, so long as ‘there is probable cause to believe that it will be there
when the search warrant is executed.’” (quoting United States v. Lowe, 575 F.2d
1193, 1194 (6th Cir. 1978))).
Probable cause for anticipatory warrants is contingent on the occurrence of
certain expected or “triggering” events, typically the future delivery, sale, or
purchase of contraband. Therefore, in making the probable cause determination,
the magistrate must “take into account the likelihood that the triggering event[s]
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will occur on schedule and as predicted.” Ricciardelli, 998 F.2d at 11. If the
triggering events do not occur, the anticipatory warrant is void. See Garcia, 882
F.2d at 702 (“An anticipatory warrant, by definition, is a warrant that has been
issued before the necessary events have occurred which will allow a constitutional
search of the premises; if those events do not transpire, the warrant is void.”).
In addition to taking into account the likelihood that the triggering events
will occur, the magistrate must also determine the likelihood that, after the
triggering events have occurred, the contraband will be at the designated place
when searched. As with all warrants, probable cause to support an anticipatory
warrant “does not exist unless a sufficient nexus between the [contraband] and the
place to be searched exists.” Dennis, 115 F.3d at 530.
B. Conditions Precedent
Because the probable cause for an anticipatory warrant is contingent on the
occurrence of anticipated events, the warrant or affidavit should express
conditions permitting the search to be conducted only after the anticipated events
have taken place. 2 See id. at 528 (“[A]t the time a court issues an anticipatory
2
Although the preferred practice is for the anticipatory warrant to itself set
out, or incorporate by reference, the conditions for the warrant’s execution, this
court has held that the failure to state the conditions in the warrant does not
necessarily render the warrant invalid. See Hugoboom, 112 F.3d at 1087. As the
court indicated in Hugoboom, there is no Fourth Amendment violation requiring
suppression when the conditions for execution of the anticipatory warrant are
“‘stated in the affidavit that solicits the warrant, accepted by the issuing
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warrant, probable cause exists to believe that contraband will be located at the
premises to be searched after certain events transpire. Thus, conditions precedent
to the execution of an anticipatory warrant are integral to its validity.” (citation
omitted)). This not only ensures against premature execution of the warrant, see
Garcia, 882 F.2d at 703-04, but also maintains judicial control over the probable
cause determination and over the circumstances of the warrant’s execution, see
generally Ricciardelli, 998 F.2d at 12 (stating that because warrants conditioned
on future events present potential for abuse beyond that of traditional warrants,
magistrates issuing such warrants must protect against opportunities for
government agents to exercise unfettered discretion, in part by explicitly placing
conditions on execution). Consistent with these purposes, the conditions
governing the warrant’s execution should be “explicit, clear, and narrowly drawn
so as to avoid misunderstanding or manipulation by government agents.” Garcia,
882 F.2d at 703-04; accord Dennis, 115 F.3d at 528; Ricciardelli, 998 F.2d at 12.
The particularity with which the magistrate should specify the conditions,
however, will vary based on the individual facts of each case.
Although the conditions precedent ensure that an anticipatory warrant will
magistrate, and actually satisfied in the execution of the warrant.’” 112 F.3d at
1087 (quoting United States v. Moetamedi, 46 F.3d 225, 229 (2d Cir. 1995).
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not be executed prematurely, such conditions do not serve as a substitute for the
magistrate’s probable cause determination. See United States v. Hendricks, 743
F.2d 653, 654-56 (9th Cir. 1984) (holding anticipatory warrant for search of
defendant’s home was invalid because affidavit provided no assurance that
defendant would take package to his home after collecting it at the airport, despite
fact that warrant contained condition that it was not to be executed until package
arrived at defendant’s house). If an anticipatory warrant is based solely on
speculation that contraband will be found at a given location at some time in the
future, it lacks a probable cause foundation at the moment of its issuance and is
therefore invalid regardless of the extent to which the warrant’s provisions assure
that no search will be commenced until probable cause exists. See State v.
Gutman, 670 P.2d 1166, 1172 (Alaska Ct. App. 1983). The conditions precedent
to execution of an anticipatory warrant are mere guarantees that the probable
cause determination at the time of issuance has reached fruition when the warrant
is executed.
In sum, the magistrate must not abdicate the judicial function of
determining probable cause at the time the warrant is sought by relying on police
assurances that the search warrant will not be executed unless probable cause
exists. Instead, the magistrate must require a particularized showing, based on
facts existing when the warrant is issued, that the items to be seized will be at the
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designated location when the search takes place. See Hendricks, 743 F.2d at 655;
see generally State v. Wright, 772 P.2d 250, 258-59 (Idaho Ct. App. 1989)
(Burnett, J., concurring) (discussing risk of judicial abdication of probable cause
determination as one of the possible dangers of anticipatory warrants); State v.
Lee, 613 A.2d 395, 398-400 (Md. Ct. Spec. App. 1992) (same), aff’d, 624 A.2d
492 (Md. 1993).
C. Anticipatory Warrants Based on Delivery of Contraband
As recognized in Hugoboom, when the warrant application indicates there
will be a government-controlled delivery of contraband to the place to be
searched, probable cause for a search is established and an anticipatory warrant
may be issued, provided the warrant’s execution is conditioned on the
contraband’s delivery to, or receipt at, the designated place. See 112 F.3d at
1086-87; see also Garcia, 882 F.2d at 702-03. In this context, the Hugoboom
court indicated that when the warrant affidavit refers to a controlled delivery of
contraband to the place designated for search, the nexus requirement of probable
cause is satisfied and the affidavit need not provide additional independent
evidence linking the place to be searched to criminal activity. See 112 F.3d at
1086.
When the delivery of contraband is not completely within the government’s
control, however, or when the delivery is to be made to a place other than the
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premises designated for search, additional reliable information in the warrant
application must indicate that the contraband will be at the designated premises at
the time of the search. For example, when the delivery of contraband is not
within the control of the government, the supporting affidavit should show not
only that the agent applying for the warrant believes a delivery of contraband is
going to occur, but also how the agent learned of the expected delivery, how
reliable the information is, and what the role of law enforcement officers will be
in the expected delivery. See Garcia, 882 F.2d at 703; United States v. Leidner ,
99 F.3d 1423, 1426 (7th Cir. 1996); see also 2 Wayne R. LaFave, Search &
Seizure: A Treatise on the Fourth Amendment § 3.7(c), at 366-67 (3d ed. 1996)
(stating that to establish probable cause for anticipatory warrant, affidavit must
“indicate how it is known that the items to be seized will on a later occasion be at
the place specified” and stating that more details will be necessary in non-
controlled delivery cases). Similarly, when a controlled delivery is not made to
the place to be searched, such as when a defendant is required to pick up a
package containing contraband at a post office, the warrant application must
present additional facts establishing the contraband will be taken to the place
designated for search. Cf. Hendricks, 743 F.2d at 654-55 (holding anticipatory
warrant for search of defendant’s home was invalid when defendant was required
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to pick up suitcase containing contraband at airport and there was no assurance at
time warrant was issued that defendant would take suitcase to his home).
II. VALIDITY OF ANTICIPATORY WARRANT TO
SEARCH ROWLAND’S RESIDENCE
Rowland argues the anticipatory warrant in this case was invalid for lack of
probable cause because the supporting affidavit failed to establish a nexus
between Rowland’s residence and the contraband or any suspected criminal
activity. Rowland asserts that although his private post office box had been
linked to suspected criminal activity, the warrant affidavit failed to establish any
link between such activity and his home.
“Probable cause undoubtedly requires a nexus between [the contraband to
be seized or] suspected criminal activity and the place to be searched.” 3 United
3
Some courts have held that to satisfy the nexus requirement of probable
cause in the anticipatory warrant context, the warrant application must
demonstrate the contraband is “on a sure and irreversible course to its
destination” before a warrant may be issued. United States v. Ricciardelli, 998
F.2d 8, 12-13 (1st Cir. 1993); see also United States v. Leidner , 99 F.3d 1423,
1427-28 (7th Cir. 1996) (noting several circuits have adopted sure course
requirement), cert. denied , 117 S. Ct. 1434 (1997); United States v. Garcia , 882
F.2d 699, 702-03 (2d Cir. 1989) (noting wide variety of courts have upheld
anticipatory warrants when sure course requirement was met). As one court has
explained:
The sure course standard functions as a proxy for the
actual presence of the contraband at the locus to be
searched. It offers the magistrate a trustworthy
assurance that the contraband, though not yet on the site,
will almost certainly be located there at the time of the
search, thus fulfilling the requirement of future probable
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States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir. 1990); see also Dennis, 115
F.3d at 530; 2 LaFave, supra, § 3.7(d). Probable cause to search a person’s
residence does not arise based solely upon probable cause that the person is guilty
of a crime. Instead, there must be additional evidence linking the person’s home
to the suspected criminal activity. See Hendricks, 743 F.2d at 655; see also
United States v. Lalor, 996 F.2d 1578, 1582-83 (4th Cir. 1993) (stating
“residential searches [are] upheld only where some information links the criminal
activity to the defendant’s residence”).
cause.
Ricciardelli, 998 F.2d at 13; see also United States v. Hendricks, 743 F.2d 653,
654-55 (9th Cir. 1984) (holding anticipatory warrant was invalid for lack of
probable cause because, at time warrant was issued, the contraband was not on a
sure course to the place to be searched and there was no assurance defendant
would take contraband to that place).
The “sure course” requirement is typically satisfied in controlled delivery
cases when the delivery is made directly to the place to be searched. Indeed, in
Hugoboom , a controlled-delivery case in which the contraband was addressed to
and sent directly to the defendant’s residence, the court stated that the “sure
course” standard was clearly satisfied by the facts of the case. See 112 F.3d at
1086-87. The court did not, however, expressly adopt the “sure course”
requirement for the Tenth Circuit. See id.It is unclear how, or whether, the heightened “sure course” requirement
applies to anticipatory warrants outside the controlled delivery context. We
recognize that the “sure course” standard is one way of satisfying the traditional
nexus requirement of probable cause. In this case, however, because we conclude
the warrant did not satisfy traditional probable cause requirements, see infra Part
II, we need not further determine whether the more stringent “sure course”
requirement is a necessary prerequisite to validity for all anticipatory warrants.
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Under the probable cause analysis traditionally employed in non-
anticipatory warrant cases, probable cause to issue a search warrant only exists
when the supporting affidavit sets forth sufficient facts that would lead a prudent
person to believe that a search of the described premises would uncover
contraband or evidence of a crime. See United States v. Burns, 624 F.2d 95, 99
(10th Cir. 1980). In determining whether probable cause exists to issue a search
warrant, a magistrate’s task is to make a “practical, common-sense decision”
based on the totality of the circumstances as set forth in the affidavit. Illinois v.
Gates, 462 U.S. 213, 238 (1983); see also Corral-Corral, 899 F.2d at 931.
Reviewing courts should give the magistrate’s ultimate probable cause decision
“great deference.” United States v. Cusumano, 83 F.3d 1247, 1250 (10th
Cir.1996) (en banc) (citation omitted). Nevertheless, this court will not defer to
the magistrate’s determination if the affidavit does not provide “‘a substantial
basis for concluding that probable cause existed.’” Id. (quoting Gates, 462 U.S.
at 238-39).
The affidavit in this case contained information supporting a probable
cause determination that Rowland was involved in criminal activity and that the
delivery to Rowland’s private post office box would take place. The affidavit
indicated that Rowland had ordered the video tapes and had requested that they be
sent to him at his post office box. The affidavit further indicated that the agents
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planned to make a controlled delivery of the video tapes to Rowland at the post
office box and planned to maintain surveillance over the post office box to
determine that Rowland picked up the package. The affidavit also indicated that
Rowland had been observed on several occasions collecting his mail from the post
office box and then walking back to work.
Because the controlled delivery was made to Rowland’s private post office
box and not to his residence, however, establishing probable cause that the
delivery would take place does not mean there was probable cause that the video
tapes would be at Rowland’s residence when the search took place. Therefore,
this court must determine whether the affidavit supporting the anticipatory
warrant contained evidence establishing a nexus between the contraband and
Rowland’s residence. See Hendricks, 743 F.2d at 654-55 (holding anticipatory
warrant for search of defendant’s home was invalid because contraband was
picked up by defendant rather than being delivered to his home and affidavit
failed to provide facts establishing a nexus between contraband and defendant’s
home).
Only an oblique reference was made in the affidavit to the anticipated route
of the contraband after its delivery to Rowland’s post office box. The affidavit
stated: “It is anticipated that [Rowland, after picking up the tapes from the post
office box,] will go to his place of employment and after work to his residence.”
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The affidavit contained no information suggesting that Rowland had previously
transported contraband from his private post office box to his home or that he had
previously stored contraband at his home. Nor did the affidavit provide any facts
linking Rowland’s residence to suspected illegal activity, such as in the past
having similar video tapes or other illegal materials delivered directly to his
home.
The government nevertheless contends that the affidavit contained
sufficient information for the magistrate to determine there was probable cause
that Rowland would collect the package and then take it to his home after he left
work. The government notes the affidavit contained information that Rowland’s
usual practice was to pick up his mail and then walk back to work, and the
affidavit also indicated that Rowland was employed by the Colorado Department
of Revenue. The government asserts that from this information, a “logical
inference” was that Rowland would not store or view the illegal video tapes at
work, but would instead take the video tapes to his home. 4
In holding that the warrant was supported by probable cause, the district
4
court agreed with the government that it was “a reasonable inference . . . that
given the previous activities that the officers had observed, one might expect that
the video[s] would eventually make [their] way to the apartment to be searched
and not stay permanently at the defendant’s place of work.” The district court
further explained that the
officers had observed the defendant pick up packages,
go back to his office. They had also been where he
resided. They could reasonably infer that the contents of
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In making the probable cause determination, the issuing magistrate may
draw reasonable inferences from the material provided in the warrant application.
See Gates, 462 U.S. at 240; cf. United States v. Lawson, 999 F.2d 985, 987 (6th
Cir. 1993) (stating that in determining whether there is probable cause to support
a warrant, the issuing magistrate is “entitled to draw reasonable inferences about
where evidence is likely to be kept, based on the nature of the evidence and the
type of offense” (internal quotations omitted)). In this case, a magistrate could
infer from the affidavit that Rowland would be unlikely to view or store the video
tapes at his place of employment. A further possible inference was that, after
removing the tapes from his workplace, Rowland would take the tapes home to
view or store. Rowland’s home, however, was but one of an otherwise unlimited
possible sites for viewing or storage. The Carr affidavit provided no basis to
either limit the possible sites or suggest that Rowland’s home was more likely
this particular package would not be readily usable at
the defendant’s office. And I do not find it to be an
unreasonable inference to assume that the contents of
the package would eventually make their way to the
defendant’s home where they could more likely be
viewed than they could at the office.
Although, as the district court and government suggest, it was reasonable to
infer that Rowland would not view or store the illegal video tapes at work,
particularly given the fact that Rowland was a State employee, the district court
did not address and the government has not explained why it was logical to infer
Rowland would take the tapes home to view or store, rather than taking the tapes
to some other location.
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than the otherwise endless possibilities. As a consequence, the possible inference
that Rowland would take the tapes home, in and of itself, is insufficient to
provide a substantial basis for concluding there was probable cause to believe the
contraband would be in Rowland’s home at the time the search was to take place. 5
Given the absence of any facts in the affidavit linking the contraband to
Rowland’s home, the magistrate had no information from which to determine, at
the time he issued the warrant, there was probable cause to believe the contraband
would be at Rowland’s residence when the search was to take place. 6 Cf.
5
In arguing the warrant was supported by probable cause, the government
also asserts that a magistrate may consider an affiant’s experience and expertise
in making the probable cause determination, and notes the affidavit in this case
described Inspector Carr’s training and investigative experience in the area of
child sexual exploitation and child pornography. The affidavit did not, however,
set out any facts suggesting that, based on Carr’s experience, there was reason to
believe Rowland would be likely to view or store such materials at his home,
rather than viewing or storing the materials at another location. Therefore, we
reject this argument.
The government additionally asserts the warrant affidavit indicated
Rowland had been “observed in his daily routine,” which included picking up his
mail, walking back to his office, and “driv[ing] to his residence after work.” The
affidavit, however, in fact only stated that Rowland had been observed picking up
his mail and walking back to his place of employment, and later leaving work and
walking to his car at a nearby parking lot. The affidavit did not indicate whether
Rowland would typically drive directly home after work, nor did it indicate
whether Rowland would typically take home any mail he had collected that day
from his private post office box.
6
The government also asserts that because Carr “made no attempt to
execute the search warrant until [Rowland] first indicated to him that the
videotapes were in his residence,” Carr “[i]n effect . . . delayed the search until
the . . . nexus requirement had been met.” Although officers must comply with an
anticipatory warrant’s conditions for the warrant to be validly executed, such
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Hendricks, 743 F.2d at 654-56 (holding anticipatory warrant for search of
defendant’s home was invalid when defendant was required to pick up suitcase
containing contraband at airport and there was no information indicating
defendant would take suitcase home or otherwise linking defendant’s residence to
illegal activity); State v. Goble, 945 P.2d 263, 268-69 (Wash. Ct. App. 1997)
(holding anticipatory warrant for search of defendant’s home was invalid because
facts made known to magistrate did not establish, at time warrant was issued, the
required nexus between the contraband to be seized, which was mailed to
defendant’s post office box, and defendant’s home); see also Lalor, 996 F.2d at
1582-83 (holding, in non-anticipatory warrant context, search warrant for
defendant’s home was invalid based on failure of affidavit to establish nexus
between drug activity and defendant’s home). We therefore conclude the warrant
was not supported by probable cause and was thus invalid. 7
compliance does not satisfy the threshold requirement that, at the time of the
warrant’s issuance, the warrant must be supported by probable cause. As
discussed above, by placing conditions on a warrant’s execution, a magistrate can
ensure that the warrant is not executed prematurely. Such conditions do not,
however, themselves provide the magistrate with a basis for making the probable
cause determination. See Hendricks, 743 F.2d at 654-56. The magistrate must
ensure that the judicial function of determining the existence of probable cause is
not improperly delegated to government agents by relying on police assurances
that a search will not take place unless there is probable cause.
7
Because we have concluded the affidavit failed to provide a substantial
basis for the magistrate’s probable cause determination, we need not consider
whether, assuming probable cause had existed, the warrant conditions were
adequate for a valid anticipatory warrant.
-22-
III. LEON GOOD-FAITH EXCEPTION
Although the warrant was not supported by probable cause, the evidence
seized at Rowland’s residence pursuant to the warrant need not be suppressed if
the good-faith exception to the exclusionary rule, set out in United States v. Leon,
468 U.S. 897 (1984), applies. 8 The applicability of the Leon good-faith exception
is a question of law which this court reviews de novo. See Corral-Corral, 899
F.2d at 929.
In Leon, the Supreme Court modified the Fourth Amendment exclusionary
rule by holding that evidence seized pursuant to a search warrant later found to be
invalid need not be suppressed if the executing officers acted in objectively
8
This court has recognized that a reviewing court may, in appropriate cases,
turn directly to the good-faith issue without first considering the validity of the
warrant under the Fourth Amendment. See United States v. McKneely, 6 F.3d
1447, 1453 (10th Cir. 1993); accord United States v. Leon, 468 U.S. 897, 924-25
(1984). When there are important Fourth Amendment questions at issue,
however, and resolution of such questions is “necessary to guide future action by
law enforcement officers and magistrates,” it is appropriate to first address the
Fourth Amendment issues before turning to the good-faith issue. Leon, 468 U.S.
at 925; see also United States v. Dahlman, 13 F.3d 1391, 1397 (10th Cir. 1993).
In addition, resolution of the Fourth Amendment issue is often necessary, as in
this case, to determine whether the officers’ reliance on the warrant was
reasonable for purposes of the good-faith analysis. See Leon, 468 U.S. at 925; see
also Dahlman, 13 F.3d at 1397 (stating officers’ reliance on warrant language
found to be overbroad was “reasonable in part because this practice [of using
certain boilerplate language in warrants] had not been ruled unconstitutional prior
to today”). Based on these considerations, it was appropriate that this court first
address the underlying validity of the warrant before considering the good-faith
exception.
-23-
reasonable, good-faith reliance on the warrant. See 468 U.S. at 922. The Leon
Court stated that the “suppression of evidence obtained pursuant to a warrant
should be ordered only on a case-by-case basis and only in those unusual cases in
which exclusion will further the purposes of the exclusionary rule.” Id. at 918.
The Court explained that the exclusionary rule’s purpose is “to deter police
misconduct rather than to punish the errors of judges and magistrates.” Id. at 916.
The Court further reasoned that police misconduct would not be deterred by
excluding evidence seized by officers acting pursuant to a search warrant in the
objectively reasonable belief that their conduct did not violate the Fourth
Amendment. See id. at 918-21.
Although the Court indicated that evidence seized pursuant to a warrant
should only be suppressed in unusual cases, the Court did recognize that there are
circumstances in which an officer’s reliance on a warrant could not be objectively
reasonable and suppression is appropriate. See id. at 922-23. The Court
described four such situations, two of which Rowland argues apply here. First, an
officer’s reliance is not objectively reasonable when the warrant is “based on an
affidavit ‘so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.’” Id. at 923 (quoting Brown v. Illinois, 422 U.S.
590, 610-11 (1975) (Powell, J., concurring in part)). Second, the good-faith
exception will not apply and suppression is appropriate when the warrant is “so
-24-
facially deficient . . . that the executing officers cannot reasonably presume it to
be valid.” Id.In determining whether the Leon good-faith exception should be applied,
the “good-faith inquiry is confined to the objectively ascertainable question
whether a reasonably well trained officer would have known that the search was
illegal despite the magistrate’s authorization.” Id. at 922 n.23. In making this
determination, we consider “all of the circumstances,” id., and assume the
executing officers have “a reasonable knowledge of what the law prohibits,” id. at
919 n.20.
Rowland argues the good-faith exception does not apply in this case
because the affidavit’s failure to establish a sufficient nexus between the
contraband and the location to be searched was a “readily observable,” “non-
technical defect [that] . . . should have been easily detected by an experienced
postal inspector.” We disagree. Although the affidavit did not establish a
sufficient nexus between the contraband and Rowland’s residence to provide
probable cause to search, the warrant and supporting affidavit were not so facially
deficient or so lacking in indicia of probable cause that the officers’ reliance on
the warrant in conducting the search was objectively unreasonable.
Despite the affidavit’s failure to demonstrate a sufficient link between the
contraband and Rowland’s home for probable cause purposes, the affidavit as a
-25-
whole was not a bare bones affidavit, containing only conclusory statements and
completely devoid of factual support. See Leon, 468 U.S. at 926; United States v.
McKneely, 6 F.3d 1447, 4454 (10th Cir. 1993); United States v. Cardall, 773 F.2d
1128, 1133 (10th Cir. 1985). As described above, the affidavit contained
information detailing the investigation into Rowland’s suspected criminal activity.
The affidavit linked Rowland to the contraband and indicated Rowland was likely
to pick up the video tapes at his post office box and take them back to his
workplace. The affidavit also provided information from which it could
reasonably be inferred that Rowland would not leave the video tapes at work, but
would take them elsewhere, possibly his home, to view or store.
The supporting affidavit also placed specific conditions on the execution of
the warrant. The affidavit contained Inspector Carr’s assurances that government
agents would maintain surveillance over the package after it was delivered to
Rowland’s post office box and that the warrant would not be executed unless the
contraband was brought into Rowland’s home. The record establishes, as
discussed in Part IV below, that the officers complied with the conditions in
executing the warrant.
Finally, we note that at the time the warrant was issued and executed, this
circuit had not yet ruled on the constitutionality of anticipatory warrants and had
not set out conditions on the validity of such warrants. Given the unsettled state
-26-
of the law, it was not unreasonable for the officers to rely on the magistrate’s
authorization. See Cardall, 773 F.2d at 1133 (stating that in considering the Leon
good-faith principles “it must . . . be remembered that the knowledge and
understanding of law enforcement officers and their appreciation for
constitutional intricacies are not to be judged by the standards applicable to
lawyers”); see also Leon, 468 U.S. at 919 (“If the purpose of the exclusionary rule
is to deter unlawful police conduct, then evidence obtained from a search should
be suppressed only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” (internal quotations omitted)).
Application of the good-faith exception in this case is also consistent with
the exception’s rationale. As the Court stated in Leon, the exclusionary rule
should only be applied in those unusual cases when its purpose, to deter police
misconduct, will be furthered. See 468 U.S. at 918. As indicated, the officers’
reliance in this case on the magistrate’s determination of probable cause was not
objectively unreasonable, and there is no indication in the record that the officers
were involved in any misconduct in executing the warrant. Penalizing the officers
for a mistake not their own “cannot logically contribute to the deterrence of
Fourth Amendment violations.” Leon, 468 U.S at 921. Consequently, the
evidence seized at Rowland’s home pursuant to the warrant need not be
-27-
suppressed. 9 Cf. Hendricks, 743 F.2d at 656 (upholding admission of evidence
obtained in search under Leon good-faith exception, despite concluding
anticipatory warrant was invalid for lack of probable cause because sufficient
nexus between contraband and defendant’s residence was not established).
IV. EXECUTION OF WARRANT
9
Rowland also argues the affidavit was submitted to the magistrate without
full disclosure of all the facts. Specifically, he asserts “Inspector Carr knew that
there were no pre-existing facts connecting criminal activity to Rowland’s home”
and yet “failed to so inform the magistrate.” He also asserts Carr “failed to
inform the magistrate of the known risk that the beeper’s batteries would fail.”
Suppression of evidence is appropriate if “the officers were dishonest or
reckless in preparing their affidavit” and the magistrate was misled by
information in the affidavit. Leon, 468 U.S. at 926, 923. Here, the record does
not indicate Inspector Carr was dishonest or reckless in preparing the affidavit for
the warrant. As discussed above, Carr’s belief that the affidavit was sufficient to
provide probable cause for issuance of a warrant to search Rowland’s home was
not objectively unreasonable. There is no evidence indicating that Rowland was
actually aware that the affidavit was insufficient to provide probable cause.
Likewise, there is no evidence that Carr knew the beeper would fail or could
reasonably expect such a failure. As the Government points out,
it is unreasonable to expect Inspector Carr to have
anticipated that: (1) the defendant would pick up his
mail 15 minutes after the package had been delivered to
his box in the morning; (2) the defendant would open the
package immediately, thus triggering the alarm mode on
the beeper [which mode requires more power and thus
drains the batteries more quickly]; and (3) the beeper
would stop functioning before the defendant left for his
residence after work. A more logical assumption was
that the defendant would pick up his mail during his
lunch break, thus allowing the beeper enough time to
continue functioning until the defendant got off work
and proceeded to his residence.
We therefore reject Rowland’s argument.
-28-
Rowland also argues the agents could not reasonably rely on the warrant in
conducting the search because they failed to satisfy the warrant’s conditions.
Rowland first asserts that the warrant’s execution was conditioned on the beeper
continuing to function until the contraband arrived at Rowland’s residence.
Therefore, Rowland suggests that when the beeper failed, the officers could not
properly execute the warrant. 10
We disagree. The warrant was not expressly conditioned on the continued
functioning of the beeper. Instead, the supporting affidavit stated that the
“package [containing the video tapes] will be kept under surveillance by [Carr]
and/or other law enforcement officers until it is received at [Rowland’s]
residence” and that “[o]nce received by an individual at the residence described
and only when brought into the residence, this search warrant will be executed.”
10
The Leon good-faith exception will not save an improperly executed
warrant. See United States v. Moland, 996 F.2d 259, 261 (10th Cir. 1993).
Instead, the good-faith analysis assumes “that the officers properly executed the
warrant and searched only those places and for those objects that it was
reasonable to believe were covered by the warrant.” Leon, 468 U.S. at 918 n.19;
see also United States v. Medlin, 798 F.2d 407, 410 (10th Cir. 1986) (noting that
the exclusionary rule is aimed at deterring police misconduct and explaining that
“[u]nlike cases in which the police properly executed an invalid warrant that they
reasonably thought was valid, in cases of improper execution there is police
conduct that must be deterred”). Therefore, only if the execution was in
accordance with the terms of the warrant may the good-faith exception be applied.
See Moland, 996 F.2d at 261.
We note that in determining whether the officers complied with the warrant
conditions in executing the warrant, we do not make any determinations
concerning the sufficiency of the conditions themselves.
-29-
The affidavit did not contain any reference to a beeper or to the specific means of
maintaining surveillance.
Rowland was observed collecting the package containing the video tapes
and taking the package back to his place of employment. The beeper indicated
that he opened the package while walking back to work and further indicated that
when Rowland later left work during the lunch hour, the package remained at his
work. Although the beeper stopped functioning before Rowland finally left work,
government agents continued to maintain surveillance over Rowland, following
him from his work to his residence. The agents observed Rowland leaving work
carrying a backpack and bag, both of which he took into his apartment. The
agents reasonably believed Rowland was likely carrying the video tapes in the
backpack or the bag, but they were unable to absolutely determine that Rowland
carried the video tapes into his residence. Before executing the warrant, however,
Inspector Carr was able to confirm, based on Rowland’s admission, that the video
tapes were in the backpack in Rowland’s home. At the suppression hearing, Carr
testified he did not indicate to Rowland that he had a search warrant until
Rowland admitted the tapes were in his home. Carr also testified that his
understanding of the warrant was that if he had not been able to confirm the video
tapes were in the apartment, the warrant could not have been executed. Thus, the
officers did satisfy the warrant conditions in executing the search warrant.
-30-
Rowland further argues, however, that his statement to Inspector Carr
indicating the video tapes were in his home was not voluntarily made, and thus
the statement could not be relied upon to satisfy the warrant condition. Rowland
specifically asserts the statement was “involuntary in light of the invalid warrant,
the intimidating atmosphere created by numerous armed police officers in his
entry and Carr’s questioning him there, and nowhere for Rowland to retreat.”
Whether Rowland’s statement was involuntary is a question of law subject to de
novo review, although we accept the district court’s factual findings unless they
are clearly erroneous. See United States v. Hernandez, 93 F.3d 1493, 1501 (10th
Cir. 1996).
“The [F]ifth [A]mendment’s privilege against self-incrimination prohibits
the admission of incriminating statements where governmental acts, threats or
promises cause the defendant’s will to become overborne,” thus rendering the
statements involuntary. United States v. Matthews, 942 F.2d 779, 782 (10th Cir.
1991). In determining whether the defendant’s will was overborne, this court
looks at the totality of the circumstances. See id.At the suppression hearing, Inspector Carr testified that after observing
Rowland enter his apartment, he and several officers knocked on Rowland’s door
and were invited in by Rowland’s wife. Carr then asked Rowland about the
package. Rowland at first denied knowing anything about the package. Carr
-31-
informed Rowland that he had been observed picking up the package and taking it
to his place of employment. Rowland then stated that the package was at his
workplace. Carr again asked Rowland where the contents of the package were.
In response, Rowland admitted the video tapes were in the apartment. Carr then
informed Rowland that he had a warrant to search Rowland’s home.
The record establishes that Carr’s entry into Rowland’s residence was
consensual. Carr did not rely on the warrant to gain entry into Rowland’s home
or to elicit inculpatory statements from Rowland, but only disclosed that he had a
search warrant after Rowland stated the video tapes were in his home. Although
Carr was accompanied by several officers, they remained behind Carr while he
spoke with Rowland, and the record does not indicate that they exhibited any
signs of force or intimidation. The record contains no evidence that Rowland was
subjected to improper threats or promises. Rowland was not in police custody or
placed under arrest at the time the inculpatory statement was made. Under these
circumstances, Rowland’s statement was voluntary.
CONCLUSION
This court concludes the anticipatory warrant was invalid for lack of
probable cause based on the affidavit’s failure to establish a sufficient nexus
between the contraband and the location to be searched. Nevertheless, the district
court did not err in refusing to suppress evidence recovered in the search of
-32-
Rowland’s home because the officers acted in objectively reasonable, good-faith
reliance on the warrant and because the officers complied with the warrant
conditions and properly executed the warrant. Therefore, under the good-faith
exception to the exclusionary rule, suppression was not required. Accordingly,
this court AFFIRMS.
-33-
No. 96-1512, UNITED STATES v. ROWLAND
McKAY, Circuit Judge, dissenting:
I agree fully with the majority opinion that no probable cause existed to
believe that the video tapes would be located at the named place to be searched,
i.e., Defendant’s residence, when the magistrate issued the warrant for the search
of the residence. The affidavit supporting the warrant provided insufficient facts
to support a nexus between the contraband or illegal activity and the place to be
searched. See United States v. Dennis, 115 F.3d 524, 529-30 (7th Cir. 1997);
United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir. 1993); United States v.
Hendricks, 743 F.2d 653, 654-55 (9th Cir. 1984), cert. denied, 470 U.S. 1006(1985).
In this case, Postal Service Inspector Carr led the investigation of
Defendant, the sting operation, and the execution of the warrant. Subsequent to
correspondence with Defendant concerning the purchase of child pornography
materials, Inspector Carr targeted Defendant for a sting operation whereby a
package of child pornography video tapes would be delivered to Defendant’s
private post office box. In his understandable zeal, the Inspector, as procuring
and executing officer, applied for and received a search warrant to search for the
video tapes in Defendant’s home. In every observation made and reported to the
magistrate judge, Defendant would pick up his mail at the private mailbox and
take it to his place of employment. Nothing that the Inspector knew or reported
to the magistrate judge pointed to Defendant’s residence. Further, the Inspector
did not report anything to the magistrate judge that would suggest that viewers of
child pornography are more likely to view it at their homes. What we know about
people viewing pornography on their computers at work suggests a high
probability that Defendant might observe pornography at work. 1 See David Kane,
High-Tech Measures Can Thwart Office Internet Misuse, D ALLAS B US . J., Jan. 24,
1997, available in 1997 WL 7887838 (discussing the problem of employees’
frequent visits to pornography web sites). As I have noted, nothing that the
Inspector knew or reported to the magistrate judge created any nexus between the
video tapes and Defendant’s home.
To help cure this obvious deficiency of probable cause, the Inspector
applied for and received an order authorizing the use of an electronic monitoring
device [beeper] to track the package in the hope that Defendant would take the
package to his home. The Inspector reported to the magistrate judge that the
beeper would permit him, accompanied by his team of law enforcement officers,
1
I acknowledge that viewing pornography on the Internet is perhaps less
intrusive and obvious than viewing a pornography video on a television screen.
The two situations, however, are sufficiently analogous to point out that there is
no more of a reasonable inference that Defendant would view the child
pornography at home rather than at work. The Inspector’s failure to represent to
the magistrate judge facts that might support an inference that Defendant would
view the child pornography at home reinforces my conclusion.
-2-
to track the package. If the package were opened, an accelerated alarm would
notify the officers.
The officers knew that the beeper stopped functioning at Defendant’s place
of employment before he left work for the day. When the beeper failed and the
officers could not visually observe the package, no means represented to the
magistrate judge could cure the failure to maintain surveillance over the package
until it was received at Defendant’s home. Despite the Inspector’s full knowledge
that he and his team had failed to keep the package under surveillance, a
requirement that the magistrate judge’s probable cause determination rested on,
the Inspector was bent on executing the warrant as he saw fit. In applying Leon
to these facts, the majority sanctions the following scenario: Officers approach a
magistrate judge for a warrant to search a suspect’s home for a package of
contraband after a controlled delivery to a post office box. They declare that the
suspect usually takes his mail from his post office box to his place of
employment. But, the officers say, if they find evidence during the operation
which shows that the suspect has this particular package in his home, they will
execute the warrant. This scenario represents just the type of unchecked
discretion that the Fourth Amendment was intended to prevent and destroys the
notion that we analyze Fourth Amendment violations under a standard of
objective reasonableness. Therefore, I must respectfully dissent from the
-3-
majority’s conclusion that the good-faith exception set out in United States v.
Leon, 468 U.S. 897, 922-24 (1984), applies in this case to prevent the suppression
of evidence.
I. Anticipatory Search Warrants
In all so-called “anticipatory search warrants,” where the officers who
procure and execute the warrant are part of a pre-arranged plan, sting, or
controlled delivery, the magistrate judge’s determination of probable cause hinges
on the expected occurrence of some future event or condition which was
represented to him. As the majority notes, see ante, at 9, the magistrate judge
issuing an anticipatory search warrant must determine that probable cause will
exist to believe, at some point in the future, that the items to be seized will be at
the designated place to be searched when the search occurs. See United States v.
Garcia, 882 F.2d 699, 702 (2d Cir. 1989), cert. denied sub nom. Grant v. United
States, 493 U.S. 943 (1989); State v. Smith, 478 S.E.2d 237, 241 (N.C. Ct. App.
1996). Anticipatory search warrants are inherently problematic because, unlike
other warrants, they depend for their validity on events which have yet to
transpire and which are often uniquely in the control of the executing officers.
See Dennis, 115 F.3d at 528; United States v. Leidner, 99 F.3d 1423, 1430-31
(7th Cir. 1996) (Wood, J., concurring), cert. denied, U.S. , 117 S. Ct. 1434-4-
(1997); Ricciardelli, 998 F.2d at 20-21 (Torruella, J., concurring). Unlike normal
warrants, an anticipatory warrant is not justified by past observations or events
sufficient to establish probable cause but rather by conditions or events the
executing officers have sworn they will either observe or cause to occur. See
Dennis, 115 F.3d at 527 (controlled delivery); United States v. Hugoboom, 112
F.3d 1081, 1083-84 (10th Cir. 1997) (controlled delivery); Ricciardelli, 998 F.2d
at 9-10, 16 (sting operation).
The purpose of the condition precedent is to ensure against premature or
unlawful execution of the warrant by maintaining judicial control over the
probable cause determination and over the circumstances of the warrant’s
execution. See Dennis, 115 F.3d at 528; Hugoboom, 112 F.3d at 1085-86;
Ricciardelli, 998 F.2d at 12-13; Garcia, 882 F.2d at 703-04. When the condition
precedent is not satisfied, the magistrate judge’s probable cause determination is
undermined and execution of the warrant is illegal. “If the party seeking the
search . . . create[s] the circumstances which [provide] the probable cause, which
then justify the warrant itself, the magistrate is removed . . . from his
constitutionally mandated role.” Smith, 478 S.E.2d at 241; see Hendricks, 743
F.2d at 654 n.1. This is exactly the course of events in this case.
The anticipatory warrant is based on facts which the procuring officer, the
executing officer, and the issuing magistrate judge know full well have not yet
-5-
occurred. Thus any claim of good faith by the executing officers is inextricably
bound up with their conduct after the warrant is issued. To compound this
doubtful 2 notion of an anticipatory warrant by suggesting that the executing
officer is acting in good faith when he or she executes the warrant knowing that
the conditions failed, i.e., they did not occur as represented, is to totally ignore
the magistrate judge’s role of determining “probable” cause and to distort notions
of good faith by authorizing the officer to substitute other facts for the ones the
magistrate judge relied on. This case illustrates the cancerous role that these so-
called “anticipatory search warrants” play in undermining the integrity of the
judicial function in issuing warrants mandated by the Fourth Amendment.
II. The Applicability of Leon
In Leon, the Supreme Court held that the exclusionary rule would not apply
when an officer acted “in objectively reasonable reliance on a subsequently
invalidated search warrant.” 468 U.S. at 922. The Court emphasized that the
exclusionary rule is aimed at deterring police rather than judicial misconduct, and
the rule should be invoked only in cases in which it would deter police
misconduct. See id. at 918-21. The applicability of Leon is a question of law
2
The Supreme Court has never ratified anticipatory search warrants and has
not addressed the Leon good-faith exception in this context.
-6-
which we review de novo. See United States v. Corral-Corral, 899 F.2d 927, 929
(10th Cir. 1990).
It is well settled in this circuit that the Leon good-faith exception does not
apply to an improperly executed warrant. See United States v. Moland, 996 F.2d
259, 261 (10th Cir. 1993) (citing United States v. Medlin, 798 F.2d 407, 410
(10th Cir. 1986)), cert. denied, 510 U.S. 1057 (1994). “Unlike cases in which the
police properly execute an invalid warrant that they reasonably thought was valid,
in cases of improper execution there is police conduct that must be deterred.”
Medlin, 798 F.2d at 410. The question then is whether the execution in this case
was in accordance with the terms of the warrant. See Moland, 996 F.2d at 261.
Because this warrant was an anticipatory one, my analysis differs slightly
from other cases analyzing the execution of the warrant. I do not address the
traditional questions relating to the execution of a warrant. 3 Instead, I am
confronted with the essence of the dubiousness of anticipatory search warrants:
The occurrence of future events or conditions which are often in the exclusive
3
Generally, challenges to warrant execution ask whether the scope,
intensity, and duration of the warrant execution were excessive; whether certain
items not named in the warrant were properly seized; whether certain persons
were properly detained or searched incident to execution of the warrant; whether
the warrant was executed in an untimely fashion; or whether officers’ entry
without prior notice of authority and purpose was permissible. See Medlin, 798
F.2d at 410 (citing Wayne R. LaFave, “The Seductive Call of Expediency”:
United States v. Leon, It's Rationale and Ramifications, 1984 U. I LL . L. R EV . 895,
915-16).
-7-
control of the executing officers and which are relied upon, but not observed, by
the magistrate judge in his probable cause determination. The Inspector’s fidelity
in the execution of those future conditions is the only thing that even arguably can
support the claim that this warrant was either validly issued or validly executed. I
cannot see how the majority can conclude that “the officers complied with the
conditions in executing the warrant,” ante, at 26, when the essential sworn
conditions failed. The execution of the warrant was invalid and prevents the
application of Leon.
In analyzing the conditions to the warrant, courts read the descriptions in
warrants and their supporting documents “in a ‘commonsense’ fashion.” United
States v. Gendron, 18 F.3d 955, 966 (1st Cir.) (quoting United States v.
Ventresca, 380 U.S. 102, 109 (1965)), cert. denied, 513 U.S. 1051 (1994); see
United States v. Bianco, 998 F.2d 1112, 1116-17 (2d Cir. 1993), cert. denied, 511
U.S. 1069 (1994); see also United States v. Tagbering, 985 F.2d 946, 950 (8th
Cir. 1993) (construing warrant and supporting affidavit “fairly” and in
“‘commonsense’” manner) (citation omitted). Courts also recognize that the
“conditions governing an anticipatory warrant [should be] ‘explicit, clear, and
narrowly drawn’” to preserve the magistrate judge’s role in determining probable
cause. Ricciardelli, 998 F.2d at 12 (quoting Garcia, 882 F.2d at 703-04); see
Gendron, 18 F.3d at 965. The conditions in this case were stated in the affidavit
-8-
supporting the warrant. See Hugoboom, 112 F.3d at 1087 (holding valid
conditions for execution of the warrant which are “constitutionally satisfactory,”
“stated in the affidavit that solicits the warrant,” and “accepted by the issuing
magistrate”). I therefore look at the context in which the warrant was issued to
determine the nature of these conditions and whether they communicated a clear,
simple directive to the executing officers. See Gendron, 18 F.3d at 966-67(reviewing affidavit’s description of where future triggering event would occur).
In this case, Inspector Carr’s affidavit supporting the warrant stated two
essential conditions which must occur before the anticipatory warrant is executed.
The first condition required that the “package [would] be kept under surveillance
by [Inspector Carr] and/or other law enforcement officers until it [was] received
at the residence located” at the named address. Appellant’s App. at 95. The
second condition pledged that the search warrant would be executed only when
the package was “received by an individual at the residence described and only
when brought into the residence.” Id. These two conditions are inextricably
linked; both had to be satisfied for the warrant to be properly executed.
Several factors surrounding the procurement of the search warrant and the
beeper order support the inescapable conclusion that the beeper surveillance was
necessary to the proper execution of the warrant. The Inspector testified at the
suppression hearing that his applications for the search warrant and beeper order
-9-
were presented and issued on the same day, see id. at 67, and the warrant and
order indicate that they were both valid for the same duration. See id. at 78, 97.
It is more than likely that the same magistrate judge issued both the order and the
warrant. The reasonable inference is that both the Inspector and the magistrate
judge knew that the beeper would be used to maintain surveillance of the
package.
More importantly, in light of what was represented to the magistrate judge
and the sting operation as implemented, see Gendron, 18 F.3d at 966-67, the only
reasonable meaning of maintaining “surveillance” of the package, Appellant’s
App. at 95, is that the officers would, until the package was received at
Defendant’s residence, either maintain visual watch over the package or observe
and ascertain the package’s whereabouts by using the electronic monitoring
device. See Bianco, 998 F.2d at 1117-24 (analyzing surveillance of oral
communications by a roving electronic bug). Continuous surveillance was
necessary to determine when the package was actually brought to the place to be
searched, Defendant’s residence. See Gendron, 18 F.3d at 967 (discussing
importance of surveillance to execution of warrant). This common-sense
interpretation is supported by the facts alleged in the warrant and beeper order
affidavits. See id. at 966-67. The Inspector represented to the magistrate judge
that he had visually observed Defendant on three prior occasions picking up his
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mail and returning to his place of employment. The Inspector also pledged to the
magistrate judge that the beeper was “required to ensure that the material in the
package [was] not lost and to assist in identifying the perpetrator.” Appellant’s
App. at 81-82.
It is irrelevant that the method of surveillance was not explicitly mentioned
on the face of the warrant, or in its supporting affidavit, because the only means
of maintaining surveillance of the package that were reasonably foreseeable to the
magistrate judge when he issued the search warrant and the only means employed
during the sting operation were through the use of the beeper or by visual
observation. See id. at 46, 51. Although the officers could keep the package
within their sight when Defendant carried the package from the post office box to
his place of employment, it was impossible to maintain surveillance during the
sting operation as executed without the benefit of the beeper once Defendant
entered the building in which he worked. The beeper was, therefore, essential to
the execution of the warrant because it provided the sole means of tracking the
package after the officers lost sight of it. The officers obviously anticipated
losing the ability to maintain visual surveillance over the package because they
planned for that contingency as evidenced by their seeking an order authorizing
the use of the beeper.
The necessity of the beeper to the proper execution of the warrant is
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corroborated by the manner in which the sting operation occurred. Inspector Carr
delivered the package with two video tapes and the hidden beeper to Defendant’s
private post office box. The Inspector and his team of law enforcement officers
then watched the post office box from the moment the package was delivered
until Defendant picked it up fifteen minutes later, at about 10:30 a.m. The
officers followed Defendant by visual observation and by tracking the package
with the beeper as he walked back to his place of employment. On his way back
to work, Defendant opened the package which triggered the accelerated alarm in
the beeper. See id. at 49. When Defendant left during lunch time, the beeper
indicated that he had left the package in his place of employment.
We know from the Inspector’s testimony at the suppression hearing that
before Defendant left his place of employment for the day the beeper had stopped
functioning because the batteries had died. See id. at 50. From that moment until
Inspector Carr asked Defendant the location of the package, the officers had no
idea where the package and its contents were. The condition that the “package
[would] be kept under surveillance by [Inspector Carr] and/or other law
enforcement officers until it [was] received at [Defendant’s] residence” had
irreparably failed. 4 See id. at 95 (emphasis added). Before the officers ever
4
Because courts should interpret descriptions in warrants and their
supporting documents in a “‘commonsense’ fashion,” see Gendron, 18 F.3d at 966(citation omitted), I need not decide whether a momentary lapse of surveillance
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entered Defendant’s home, they knew that they had not satisfied the surveillance
condition represented to the magistrate judge, which was the only means by which
the magistrate judge could determine that, at some point in the future, there would
be probable cause to believe that the tapes would be transferred to Defendant’s
home. When Defendant left work at about 4:30 p.m., carrying a backpack and a
white plastic grocery sack, 5 the officers saw neither the package which had
previously contained the video tapes nor the tapes themselves. Although the
officers could neither see nor electronically track the package, they followed
Defendant to his residence. It is undisputed that the officers did not observe
Defendant carrying the video tapes or package into his residence. They did not
know whether he had the video tapes. In fact, the only thing the officers knew
was that, just before the beeper failed, the probable location of the tapes was
Defendant’s place of employment, if indeed any probability existed in the
affidavits reviewed by the magistrate judge. 6
When the first condition, surveillance of the package, failed, the warrant
would mean the failure of the surveillance condition. In this case there was a
significant period of time when the package was not under surveillance as
promised to the magistrate judge.
5
The record does not indicate whether Defendant had brought the backpack
and white plastic sack to his place of employment earlier that day.
6
I emphasize that nothing reported to the magistrate judge indicates that
the Inspector observed Defendant going from his mailbox to his home or taking
his mail to his home at the end of the day.
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could no longer be validly executed. When the beeper died and the officers could
no longer see the package, the magistrate judge’s determination that probable
cause would arise in the future, based upon the satisfaction of the conditions
represented to him, was null and void. The officers’ continued surveillance of the
package until they determined that it was received at the place to be searched was
a condition essential to the execution of the warrant. See Gendron, 18 F.3d at
967. This condition was unfulfilled, and the procuring and executing officers had
full knowledge of this deficiency when they executed the warrant.
The majority’s contention that the officers had satisfied the conditions of
the warrant by entering Defendant’s residence and asking whether the tapes were
located in the residence ignores the fact that a condition represented to the
magistrate judge and necessary to the warrant’s proper execution had already been
violated. The Inspector knew that the warrant had no vitality even before he went
to Defendant’s residence because the surveillance condition had not been met;
nothing could breath life into the search warrant or revive the absence of probable
cause to support that warrant. The only means of satisfying the first condition to
the warrant had failed, and any new information obtained or observations made by
the officers during the sting operation misappropriated the magistrate judge’s
probable cause determination. The majority’s ratification of this improper
execution of the warrant authorizes the transfer of the probable cause
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determination to the executing officers based on information not represented to
the magistrate judge. Inspector Carr proceeded with the absolute discretion that
the Fourth Amendment and the magistrate judge’s probable cause determination
are intended to prevent. See Ricciardelli, 998 F.2d at 20-21 (Torruella, J.,
concurring). Because the execution was not in accordance with the conditions of
the warrant, see Moland, 966 F.2d at 261, Leon should not be applied to prevent
the suppression of illegally seized evidence.
III. The Application of Leon
The more fundamental problem here lies in the inappropriate application of
Leon’s good-faith exception to this anticipatory search warrant. As stated above,
the problem begins with an anticipatory search warrant in which the magistrate
judge must rest his probable cause determination on the expectation that a
condition or conditions in the control of the executing officer will be satisfied.
The officer’s sworn undertaking that he will only execute the warrant when he has
caused or observed the essential conditions to occur totally vitiates any possibility
that the execution is in good faith when the officer knows that the conditions did
not occur. The majority’s application of Leon to these facts compounds the
constitutionally objectionable nature of these activities by sanctioning improper
police conduct.
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Under Leon, the proper test of an officer’s good faith is “whether a
reasonably well trained officer would have known that the search was illegal
despite the magistrate’s authorization.” 468 U.S. at 922 n.23. In determining
whether an officer has acted in good faith in accordance with this objective test, a
court should evaluate all attendant circumstances, see id., and assume that the
executing officers have “a reasonable knowledge of what the law prohibits.” Id.at 919 n.20. When “a government agent asserts good faith reliance on a
magistrate’s decision to issue a warrant, the court must focus upon the existence
vel non of objective good faith at the time of the warrant application.”
Ricciardelli, 998 F.2d at 15-16 (citing Malley v. Briggs, 475 U.S. 335, 344-45
(1986)). This means that in this case, where Inspector Carr was both procuring
and executing officer, the pre-planned scheme and the application for, the
issuance of, and the execution of the search warrant are not a series of self-
sustaining independent events but must be analyzed in context, examining the
totality of the circumstances. See Leidner, 99 F.3d at 1424, 1429-30.
The Leon good-faith exception does not apply and suppression remains an
appropriate remedy in four situations: (1) the magistrate judge issuing the
warrant was misled by a deliberately or recklessly false affidavit; (2) the
magistrate judge wholly abandoned his or her detached and neutral judicial role;
(3) the warrant was based on an affidavit “so lacking in indicia of probable cause
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as to render official belief in its existence entirely unreasonable,” Brown v.
Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring in part); or (4) the
warrant was “so facially deficient . . . that the executing officers cannot
reasonably presume it to be valid.” Leon, 468 U.S. at 923 (citations omitted). In
all of these circumstances, no reasonably well trained officer should rely on the
warrant. Several of these limitations on the good-faith exception occurred in this
case.
This is not the typical Leon situation where an officer who did not procure
the warrant is told to go execute it. That officer is not charged with the
antecedent knowledge resulting from the procurement of the warrant. Nor is this
a situation where the magistrate judge merely misjudged probable cause and the
executing officer is innocently unaware of that misjudgment. By definition, in
this anticipatory search warrant case, everyone, including the procuring and
executing officer and the magistrate judge, was fully and consciously aware that
when the warrant was signed, probable cause did not exist. They all knew that
the magistrate judge’s probable cause determination was contingent upon the
occurrence of future events, which were known by and in the control of Inspector
Carr. The officers cannot reasonably and in good faith represent that they
innocently relied on the magistrate judge’s probable cause determination to
believe that the tapes would be found in Defendant’s residence when in fact they
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knew only that the tapes had at one time been located at Defendant’s place of
employment and that the condition designed to ensure that the tapes would be
found at Defendant’s residence had failed. Because Inspector Carr was fully
aware that the beeper had died and the conditions represented to the magistrate
judge could not be met, any argument that he proceeded in good faith is absurd
and incredible.
In applying for a search warrant, whether anticipatory or contemporaneous,
every affiant-officer worth his or her salt knows that he or she must present facts
or allegations which make a probable connection, a nexus, between the
contraband or illegal activity and the place to be searched. This is not a new or
unsettled complexity of the law peculiar to anticipatory search warrants. Probable
cause for anticipatory warrants, like all search warrants, “undoubtably requires a
nexus between [the contraband to be seized or] suspected criminal activity and the
place to be searched.” Corral-Corral, 899 F.2d at 937; see Illinois v. Gates, 462
U.S. 213, 238 (1983); Leidner, 99 F.3d at 1430-31 (Wood, J., concurring);
Ricciardelli, 998 F.2d at 12-14. Defendant correctly argues that the good-faith
exception does not apply because the affidavit’s failure to establish a sufficient
nexus between the contraband and the location to be searched was a “readily
observable, . . . non-technical defect [that] . . . should have been easily detected
by an experienced postal inspector.” Appellant’s Opening Br. at 12. Inspector
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Carr not only should have easily detected the absence of a nexus during the
execution of the warrant, but he knew, or should have known, that no such nexus
existed when he applied for the search warrant.
Because Inspector Carr was the chief investigative officer or case agent, the
procurer of the warrant, and the executing officer, he and his team of law
enforcement officers are charged with the knowledge that he did not present facts
or allegations to the magistrate judge showing a connection between the place to
be searched and the package containing the video tapes. Inspector Carr’s
affidavit stated only that Defendant had been observed on three occasions picking
up mail at a post office box in downtown Denver and walking back to his place of
employment. The majority recognizes that the Inspector’s affidavit only obliquely
mentions Defendant’s residence, stating that “it is anticipated that defendant, after
picking up the tapes from the post office box, will go to his place of employment
and after work to his residence.” Appellant’s App. at 95. Nothing in the affidavit
traced any mail or package previously picked up by Defendant at the post office
box to his residence. Nor did the affidavit show that Defendant stored other
contraband in his home. Inspector Carr did not present facts, based on his
experience or training, describing the nature of the crime or circumstances
inherent in viewing pornography that link the crime or contraband to the suspect’s
residence. See United States v. Wylie, 919 F.2d 969, 975 (5th Cir. 1990);
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Hendricks, 743 F.2d at 655. In light of recent publicity concerning the fact that
employees are viewing Internet pornography at work on their company
computers, 7 there is nothing probable about the suggestion that this working man
would take child pornography to his home rather than his place of employment.
The Inspector’s application for the beeper stated “that probable cause exists to
believe that the package containing the mobile tracking device will be picked up
at [Defendant’s post office box] and transported to other premises for viewing
and use.” Appellant’s App. at 83 (emphasis added). He simply did not connect
the video tapes to the residence in any way. Everything in the Inspector’s
affidavit pointed to the fact that the package could be found at Defendant’s place
of employment; nothing indicates that it could be at his residence.
The government’s assertion that the affiant’s experience and expertise was
relevant to the magistrate judge’s probable cause determination also supports my
7
With the advent of the “information superhighway,” companies are faced
with the dilemma created by Internet access for their employees: Companies must
balance the beneficial access to data with the detrimental and suspect access to
pornography or other inappropriate personal uses. The Wall Street Journal
reported that employees of IBM, Apple Computer, and AT&T were among the
most frequent visitors to Penthouse magazine’s Web site, spending the equivalent
of over 347 8-hour days in a single month. See Kane, supra at 3; Suspended
Principal Will Have Other Duties, W IS . S T . J., Oct. 2, 1997 (Local), available in
1997 WL 12263311; Wayne Tompkins, Caught on the Web More Companies
Monitor On-the-Job Internet Abuse, F LA . T ODAY , May 3, 1998 (Business),
available in 1998 WL 11931216; Bruce Westfall, Clark College Fires Head of
Security After Complaints, C OLUMBIAN , Apr. 18, 1997, available in 1997 WL
6520467.
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conclusion that Inspector Carr should be held accountable for his knowledge. See
Appellee’s Br. at 11. The Inspector testified that he had previously executed
some ten to twenty anticipatory search warrants. See Appellant’s App. at 59-60.
The Inspector’s expertise and experience in child pornography cases and in
obtaining and executing search warrants in general shoulders him with the
knowledge that a nexus is required between the place to be searched and the
contraband. It is clearly and objectively unreasonable to suggest that an officer
acted in good faith when he subjectively knew, or should have known, that he
presented no facts or observations to the magistrate judge to support the requisite
nexus. See Ricciardelli, 998 F.2d at 16; Smith, 478 S.E.2d at 244. This is exactly
the type of misconduct that the exclusionary rule was intended to prevent.
Although the Inspector knew that surveillance over the package was
essential to the proper execution of the warrant and was clearly aware that
Defendant could pick up the package at any time, he did not present facts in the
affidavit establishing the reliability of the beeper, how long the beeper was
expected to function, or what time Defendant was likely to pick up the package.
The majority points out that the record does not state that Inspector Carr
intentionally misled the magistrate judge. No precise statement is necessary to
show how Inspector Carr failed to disclose all relevant facts to the magistrate
judge; the affidavits and the sting operation demonstrate this deficiency.
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Contrary to the government’s assertion and the majority’s opinion, it is not
more logical to infer that Defendant would pick up the package “during his lunch
break, thus allowing the beeper enough time to continue functioning until [he] got
off work and proceeded to his residence.” Ante, at 28 n.9. The affidavit does not
mention what time Defendant was previously observed picking up his mail and
walking back to work. According to the record, the Inspector’s team of law
enforcement officers began visually observing the post office box not just prior to
the lunch hour but as soon as the Inspector delivered the package to the mailbox
in the morning. See Appellant’s App. at 47-48. Therefore, not only is it entirely
reasonable for the Inspector to anticipate that the package could be picked up at
any time after delivery, but nothing in the record supports the notion that
Defendant would pick up the package during his lunch break. It is also common
sense to expect that someone might open a package when he receives it, thus
triggering the beeper’s accelerated alarm mode which would wear out the
batteries more rapidly. The Inspector should have informed the magistrate judge
of the likelihood that Defendant could pick up and open the package at any time,
thereby triggering the accelerated alarm of the beeper which would make its
batteries run out more quickly. Because the record reflects no evidence that the
beeper malfunctioned in any way, Inspector Carr should have informed the
magistrate judge of the possibility that the beeper could stop functioning before it
-22-
tracked the package to Defendant’s home. These reasonable scenarios would
affect the ability of the officers to maintain surveillance of the package, a
condition necessary to the execution of the warrant. The Inspector may not
proceed on “good faith” because his affidavit in support of the warrant was
plainly submitted without full disclosure of all the relevant and reasonably
foreseeable facts. See Leon, 468 U.S. at 923; Ricciardelli, 998 F.2d at 16-17.
The record reflects additional recklessness in the preparation of the search
warrant affidavit. As previously discussed, Inspector Carr applied for the search
warrant and the beeper order on the same day. Appellant’s App. at 78-85. In
reviewing the record, it becomes apparent that the affidavit in support of the
beeper order is virtually identical to the search warrant application. 8 The only
significant difference between the two affidavits is as follows: The warrant
affidavit pledges that the package will be kept under surveillance and the warrant
will not be executed until the package is “received by an individual at
[Defendant’s] residence” and “brought into the residence,” id. at 95, while the
8
The search warrant affidavit offers a professional description of the
affiant and an explanation of the crime Mr. Rowland was suspected of violating.
The electronic beeper affidavit states that the mobile tracking device will be
attached to a package that is relevant to an ongoing criminal investigation to
identify persons suspected of trafficking in materials containing sexual
exploitation of children. Using identical language and organization, both
affidavits then describe the background facts of the sting operation and
Defendant’s activities. See Appellant’s App. at 79-82, 88-96.
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beeper order affidavit states, more specifically, that “[the] device is required to
ensure the material in the package is not lost and to assist in identifying the
perpetrator.” Id. at 81-82. Neither of the affidavits disclosed to the magistrate
judge any facts showing the nexus between the video tapes and Defendant’s
residence. It is facially evident from this comparison that the affiant utilized one
set of facts for both affidavits without providing the additional facts necessary to
demonstrate to the magistrate judge that there is a fair probability that the video
tapes would be found at Defendant’s residence. 9
Based on the foregoing analysis, I believe not only that the good-faith
exception of Leon should not be applied to the improperly executed anticipatory
search warrant but also that the officers in the case could not rely in good faith on
the warrant and its supporting affidavit. Inspector Carr, admittedly a well-trained
officer, knew or should have known that the search was illegal despite the
magistrate judge’s authorization. I therefore respectfully dissent and would order
the evidence suppressed.
9
I have considered the possibility that similar affidavits may be viewed as
the methodology of an experienced, efficient law enforcement officer, and that
the application for the beeper contained more than it needed to because it was
really intended to satisfy the search warrant application. I have discounted this
theory in light of the Inspector’s failure to present facts to the magistrate judge
supporting a nexus between the video tapes and Defendant’s home. The
Inspector, perhaps relying on his expertise and reputation, presented a sparse
affidavit that could not objectively and reasonably be relied upon.
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