People v. Brake

208 Mich. App. 233 (1994) 527 N.W.2d 56

PEOPLE
v.
BRAKE

Docket No. 160075.

Michigan Court of Appeals.

Submitted May 18, 1994, at Detroit. Decided December 29, 1994, at 9:25 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

Pritchard & Thomas, P.C. (by Clyde B. Pritchard and Edith S. Thomas), for the defendant.

Before: REILLY, P.J., and WAHLS and M.A. CHRZANOWSKI,^[*] JJ.

REILLY, P.J.

Defendant conditionally pleaded guilty, as charged, of delivery of 50 grams or more, but less than 225 grams, of a mixture containing cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2) (a)(iii), and possession with intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). Defendant reserved the right to appeal "the pretrial motions that have been filed in this case and which this Court has ruled on." Defendant was sentenced to ten to twenty years of imprisonment for the cocaine conviction and one to four years of imprisonment for the marijuana conviction. We affirm.

The facts in this case are essentially undisputed. On August 23, 1991, an express mail "2-pound Pak" was placed in the United States mail from a post office in Miami, Florida. In transit, the address label became detached from the package. The package arrived at the Detroit airmail facility in Romulus, Michigan. The label, addressed to defendant, arrived at the post office in Highland, Michigan. Andrew Pietrzyk, the express mail coordinator in Romulus, was informed about the detached label. On August 28, 1991, Mr. Pietrzyk opened the unidentified package to determine if any information regarding the addressee was contained inside. Pietrzyk did not find any such information, but noticed that the two computer floppy disk boxes found inside emitted a white powdery substance. Pietrzyk contacted the Postal Inspection Service.

Gregg Fiorina, a postal inspector, went to the Romulus facility on the same day to inspect the package. Fiorina obtained a federal search warrant to open and inspect the contents of the package, which was found to hold three plastic bags containing a total of approximately eighty-six grams of cocaine.

Rick Ferrarra, the postmaster of the Highland post office told Fiorina that a person purporting to be "John Brake" had telephoned Ferrarra in the past two days inquiring about an express mail package that was to have been delivered to him. The caller described the same express mail label number and address information as that on the label found loose in the mail. The individual also gave Ferrarra a telephone number where he could be reached.

On August 29, 1991, Ferrarra advised Fiorina that Ferrarra called the telephone number he had been given and explained to the individual who answered that the label had been located. He asked the individual what the package contained. The individual responded that the package contained two boxes of computer floppy disks.

Later, on the same day, Fiorina sought a search warrant for defendant's residence. The affidavit stated that "the following property constitutes evidence of criminal conduct" and "is located" at defendant's residence:^[1]

Cocaine and any other illegally possessed substances; drug paraphernalia for cutting, packaging[,] processing, storage, used for weighing of any controlled substance, weapons used for the protection of; [sic] proof of residency, such as but not limited to the utility bills, correspondences, rent receipts, money order receipts, and keys to the premises and safe deposit boxes; illegal drug proceeds; any weapons used for the protections [sic] of illegal drugs.

Fiorina averred that he "has probable cause to believe that the above-listed property to be searched for and seized is now located upon said described premises, based upon" the facts as described above. The affidavit also stated that Fiorina "has made arrangements to have the package delivered to [defendant's residence] pursuant to its mailing instructions on August 29, 1991."

The Oakland County magistrate issued the search warrant for defendant's residence on the same day. The warrant stated that "probable cause having been found," defendant's residence was to be searched for property and things identical to that described on the affidavit.

Later that day, another postal inspector, posing as a letter carrier, delivered the express mail package to defendant at his residence. A short time later, defendant left the residence, was stopped, and was arrested. The search warrant for the residence was then executed.

Defendant contends that the original opening of the express mail package by Pietrzyk without a search warrant was without probable cause and was a violation of his Fourth Amendment right against unreasonable searches. Because the trial court did not rule on this aspect of defendant's motion to suppress evidence, and because defendant never presented any evidence or argument in support of suppression on this basis, this issue was not preserved by his conditional guilty plea. People v New, 427 Mich. 482, 485; 398 NW2d 358 (1986).

Defendant next contends that evidence obtained during the search of his residence should have been suppressed because the warrant was defective. Defendant argues that the search warrant was an "anticipatory search warrant," because the warrant was obtained before the controlled delivery giving rise to probable cause occurred. Defendant correctly notes that Michigan has not recognized yet the validity of such warrants and argues that even in jurisdictions that have upheld warrants of this type, this warrant would be invalid because the warrant failed to provide explicit, clear, and narrowly drawn conditions governing its execution.

An anticipatory warrant is one that is issued before the events necessary for probable cause have occurred. United States v Garcia, 882 F2d 699, 702 (CA 2, 1989). In cases in which anticipatory warrants have been recognized, courts have held that the fact that the evidence presently is not located at the place to be searched is immaterial as long as there is probable cause to believe that the evidence will be there when the warrant is executed. Id. However, to assure that the warrant is not executed prematurely, that is, before the events necessary for probable cause have occurred, some courts have required that the conditions upon which the anticipatory warrants become effective be "explicit, clear, and narrowly drawn." See United States v Gendron, 18 F3d 955, 965 (CA 1, 1994), but see United States v Rey, 923 F2d 1217, 1221 (CA 6, 1991) ("Although it may be preferable" to include a statement that the search could only be executed after the controlled delivery occurred, "the warrant's silence on this point does not render it void.").

We need not determine whether the magistrate's determination of probable cause was predicated on the occurrence of the controlled delivery, whether anticipatory warrants are valid in Michigan, or whether this particular warrant was defective for failing to include specific prerequisites for effectiveness. Because probable cause to search defendant's residence existed at the time the warrant was issued, it was not an anticipatory warrant.

An individual's receipt of a package of contraband establishes probable cause to search the residence for other contraband and items associated with drug trafficking. In People v Landt, 188 Mich. App. 234; 469 NW2d 37 (1991), rev'd 439 Mich. 870 (1991), a package addressed to the defendant was opened by authorities and found to contain packages of marijuana inside a gray jacket. The package was subsequently delivered to the defendant, and he signed for it. On the same day, authorities obtained and executed a warrant to search the defendant's residence for marijuana, drug paraphernalia, and records pertaining to drug trafficking. This Court held that there was probable cause to search for the items in the package, but not to search for other narcotics or evidence of drug trafficking. The Supreme Court disagreed:

Inasmuch as the affidavit underlying the search warrant in this case established probable cause as to the contraband that was delivered to the defendant at the address where the search warrant was executed, the magistrate did not err in finding probable cause as to other items incident to drug trafficking. [People v Landt, 439 Mich. 870 (1991).]

Thus, the receipt of the package containing contraband at a particular location establishes a connection between the recipient, the contraband, and the address where the contraband is delivered and supports a finding of probable cause to believe that other evidence of drug trafficking would be at that location.

In this case, the connection between defendant, the contraband, and the defendant's residence was established before the delivery took place. In this case, as in Landt, contraband, concealed in an attempt to avoid detection, was sent to defendant. Unlike in Landt, however, the facts recited in the affidavit strongly indicated that defendant expected this particular package and was aware of its contents. An individual purporting to be defendant telephoned the post office, inquired about the package, and was able to provide information concerning the express mail label number, the destination, and the return address. That person provided a telephone number where he could be reached. When that number was called, an individual correctly identified the package's contents (two boxes designed to hold computer floppy disks). Under these circumstances, the connection between defendant, his residence, and the package containing contraband was established not only because defendant was the named addressee on the package, but also because the actions of the defendant, who identified himself as the addressee, clearly indicated that he anticipated receiving this particular package.

Because the connection between defendant, his residence, and the contraband was established by the facts set forth in the affidavit, there was probable cause to search defendant's residence for other contraband and items associated with drug trafficking, even before the controlled delivery occurred. In Landt, the necessary connection was established by the defendant's accepting of the package. However, we find no reason why receipt of the package is necessary where the nexus between defendant and the package is established by other facts. The reasoning in both instances is the same. When the affidavit shows that an identified individual has received, or anticipates receiving, specific contraband through the mail at a particular location, there is probable cause to believe that other contraband or evidence of the crime will be found at that location.

As a reviewing court, we are to ensure that there is a substantial basis for the magistrate's conclusion that there is a "fair probability that contraband or evidence of a crime will be found in a particular place." People v Russo, 439 Mich. 584, 604; 487 NW2d 698 (1992). The totality of the circumstances described in the affidavit in this case gave the magistrate reasonable grounds to believe that defendant was engaged in illegal drug-related activity and that a search of his residence probably would uncover evidence of such conduct. We find that probable cause existed at the time the warrant was issued, whether or not the magistrate believed the warrant would be executed after the package had been delivered. Therefore, the warrant was not defective, and defendant's motion to suppress was properly denied.^[2]

Lastly, defendant argues that the trial court abused its discretion in refusing to deviate from the mandatory minimum sentence of ten years for the conviction of possession with intent to deliver 50 to 225 grams of cocaine. Defendant contends that his post-conviction behavior justified a reduced sentence. We disagree. Although defendant had no prior offenses, the information in the presentence investigation report, which defendant did not challenge, indicates that defendant was part of an ongoing criminal enterprise involving several shipments both to and from the sender of the package involved in this case. The trial court did not err in finding no substantial and compelling reasons to depart from the mandatory minimum sentence. People v Lawrence, 206 Mich. App. 378; 522 NW2d 654 (1994).

Affirmed.

M.A. CHRZANOWSKI, J., concurred.

WAHLS, J. (concurring in part and dissenting in part).

I concur in the majority's resolution of the issue regarding whether the original opening of the express mail package without a search warrant was a violation of defendant's Fourth Amendment rights. As pointed out by the majority, the issue was not preserved by virtue of defendant's plea. I also concur with regard to the sentencing issue.

However, I respectfully dissent from the majority's position that there was probable cause at the time the warrant was issued to search defendant's residence. Both the United States and Michigan Constitutions guarantee a person's right against unreasonable searches and seizures of the person, houses, papers, and effects. US Const, Am IV; Const 1963, art 1, § 11. Probable cause to search must exist at the time the search warrant is issued. Probable cause exists when a person of reasonable caution would be justified in concluding that evidence of criminal conduct is in the stated place to be searched. Illinois v Gates, 462 U.S. 213; 103 S. Ct. 2317; 76 L. Ed. 2d 527 (1983); People v Russo, 439 Mich. 584, 606-607; 487 NW2d 698 (1992).

I disagree with the majority's conclusion that there was probable cause to believe that contraband or other evidence of drug trafficking would be found at defendant's residence at the time the warrant was issued. The affidavit provided the following facts. A man purporting to be defendant telephoned the post office in Highland, Michigan, inquiring about a package that he was expecting. Defendant provided the express mail label number. At this point, there was no connection between the express mail label and the package at the Detroit Express Mail manager's office. Defendant left a telephone number where he could be reached. A day or so later, a post office employee telephoned the number and "told an individual there, that he had located the express label, but not the parcel." In response to the employee's question, the "individual" stated that the parcel contained two boxes of computer floppy disks. Given the totality of these actions, I would not find reasonable grounds to conclude that defendant actually was engaged in illegal drug trafficking and that a search of his home probably would uncover evidence of such conduct. Rather, I believe that probable cause to search defendant's residence was conditional upon his acceptance of the package at his residence. Thus, I believe the warrant should be analyzed as an anticipatory warrant.

An anticipatory search warrant is a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place. 2 LaFave, Search and Seizure (2d ed), § 3.7(c), p 94. Like traditional search warrants in which there exists the expectation that the contraband will remain at the designated location until the warrant is executed, anticipatory warrants are premised on the expectation that the contraband sought will be at the designated location when the search commences. United States v Ricciardelli, 998 F2d 8, 10-11 (CA 1, 1993); United States v Garcia, 882 F2d 699, 702 (CA 2, 1989). It is believed that the objectives of the Fourth Amendment are served better by allowing government agents to obtain warrants in advance of a controlled delivery rather than by forcing the agents to proceed without a warrant under the constraints of exigent circumstances and subject to suppression at a subsequent date. Ricciardelli, supra at 10. An anticipatory warrant also alleviates the risk that the drugs will be removed or destroyed before execution of the warrant if the agents were to obtain a warrant only after the controlled delivery had been made.

Thus, several federal and state jurisdictions have concluded that anticipatory search warrants are not unconstitutional per se. Ricciardelli, supra at 11; Garcia, supra at 702-703, and cases cited therein. See also People v Sousa, 18 Cal App 4th 549; 22 Cal Rptr 2d 264 (1993); State v Ulrich, 265 NJ Super 569; 628 A2d 368 (1993); State v Engel, 465 NW2d 787 (SD, 1991); Commonwealth v Reviera, 387 Pa Super 196; 563 A2d 1252 (1989); State v Wright, 115 Idaho App 1043; 772 P2d 250 (1989); State v Coker, 746 S.W.2d 167 (Tenn, 1987); Johnson v State, 617 P2d 1117 (Alas, 1980); People v Glen, 30 NY2d 252; 331 NYS2d 656; 282 NE2d 614 (1972). See also State v Lee, 93 Md App 408; 613 A2d 395 (1992) (declining to address whether the state of Maryland will approve the use of anticipatory search warrants). Most of these decisions recognize that anticipatory warrants present greater potential for abuse than routine warrants based on past events. These risks include the risk of premature issuance, the risk of judicial abdication of the probable cause determination, and the risk of premature execution. Wright, supra at 1049; Lee, supra at 416.

To protect against the first two abuses, the courts have required a particularized showing that the items to be seized will be in the place to be searched at a specified time. Requiring such a showing before the warrant is issued ensures that the magistrate (not the officers in the field) will determine when, and whether, there should be a search. Often, the requisite probable cause is established by showing that the contraband is "on a sure and irreversible course to its destination." Ricciardelli, supra at 12; Garcia, supra. The supporting affidavit should illustrate that the agent believes the delivery is going to occur, how the agent has obtained this belief, the reliability of the source of that information, and what part government agents will play in the delivery. Garcia, supra at 703. In this case, the affidavit of the postal inspector, Gregg Fiorina, provided, in relevant part:

Affiant further states that Affiant has made arrangements to have the package delivered to the above described residence pursuant to its mailing instructions on August 29, 1991.

No specifics were provided concerning how the controlled delivery was to occur or what role the government agents would play in the controlled delivery. By failing to provide such detail, the affidavit did not establish that the contraband in the express mail package was on a sure and irreversible course to defendant's residence. Therefore, I would hold that the warrant was invalid.

The third risk inherent in anticipatory warrants is that overzealous government agents will carry out the search and seizure in advance of the controlled delivery. Therefore, several decisions also have held that the search warrant must express clearly the precise circumstances under which the warrant may be executed. One particular condition should be that execution is contingent upon arrival of the contraband. Garcia, supra; Ricciardelli, supra. See also Johnson, supra.^[1] Conditioning the warrant upon delivery establishes a nexus between the criminal act, the evidence to be seized, and the place to be searched. Ricciardelli, supra at 13. In this case, the warrant did not detail the precise circumstances under which it was to be executed. In fact, the only condition was that the warrant was to be executed on or before August 20, 1991. Because the warrant in this case failed to authorize a search only after the controlled delivery had occurred, the warrant was invalid.

Of course, the majority's holding has rendered it unnecessary to analyze whether this jurisdiction should adopt and uphold the constitutional validity of anticipatory search warrants and whether this particular warrant was a valid anticipatory warrant. As previously stated, my disagreement with the majority is that probable cause to search defendant's residence for evidence of drug trafficking had not been established at the time the warrant was issued. Therefore, I believe that the warrant was an anticipatory warrant, and should be analyzed as such. Additionally, I would recognize the validity of anticipatory warrants subject to the safeguards adopted by other jurisdictions. Because the affidavit did not establish that the contraband was on a sure and irreversible course to defendant's residence, and because the warrant did not detail the circumstances under which the execution could occur, I also would find that the anticipatory warrant was invalid. Accordingly, I would reverse the lower court's ruling and remand for entry of an order suppressing the evidence.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] We note that in defendant's motion to suppress filed on February 23, 1992, he challenged the veracity of the statements in the affidavit that the listed property "is located" at his residence because at the time the affidavit was signed, the affiant was aware that the package containing the floppy discs and cocaine had not been delivered. Accordingly, citing Franks v Delaware, 438 U.S. 154; 98 S. Ct. 2647; 57 L. Ed. 2d 667 (1978), defendant argued that the statements should be stricken and the affidavit reviewed to determine whether the remaining portions supported a finding of probable cause. Defendant has not raised this issue on appeal, and, in any event, we find no merit in the argument, because the items described did not specify that the package containing cocaine "is located," but rather that the affiant had probable cause to believe that cocaine, paraphernalia, weapons, and so forth, generally, would be found at defendant's residence.

[2] The trial court denied defendant's motion to suppress on the basis that the warrant was a valid anticipatory warrant. Where the trial court reaches the right result for the wrong reason, this Court will not reverse. Bonner v Chicago Title Ins Co, 194 Mich. App. 462, 472; 487 NW2d 807 (1992).

[1] Other decisions have held that the failure to condition the search upon the occurrence of the controlled delivery is not necessarily fatal. United States v Tagbering, 985 F2d 946, 950 (CA 8, 1993), and State v Engel, 465 NW2d 787, 790 (SD, 1991). In Tagbering, the critical factor to the court's holding was the representation in the affidavit that the warrant would not be executed until the package had been delivered. In Engel, the issuing judge orally admonished the officer not to execute the warrant until the controlled delivery occurred.