United States v. James Frederick Rowland

conclusion, trial hold the court we justified finding, pursuant Fed.R.Civ.P. produce failed to evi- beneficiaries creating for the trier an inference

dence Bank IV had actual to conclude that

fact transac-

knowledge of unauthorized Leitner’s essentially on case rests

tions. Beneficiaries’ constructive knowl- theory Bank IV had which, under defalcations

edge of Leitner’s 58-1207, is to create an issue of

§ insufficient jury. for the

fact summary judg- entry of

The trial court’s hereby AFFIRMED.

ment is America,

UNITED STATES

Plaintiff-Appellee, ROWLAND,

James Frederick

Defendant-Appellant. 96-1512,

Nos. 97-1016. Appeals,

United States Court

Tenth Circuit.

June Missouri's, (1994). § essentially § 456.560 Mo.Rev.Stat. the same as found 58-1207

H95 Colorado, Nieto, Denver, De- for Arthur S. fendant-Appellant. Barrett, United States Assistant

Mark J. Denver, (Henry L. Sola- Attorney, Colorado Attorney, J. no, Charlotte United States Attorney, States Mapes, Assistant United brief), Denver, Colorado, Plaintiff- on Appellee.

' MURPHY, McKAY, TACHA, Before Judges. Circuit MURPHY, Judge. Circuit court’s appeals the district Rowland James suppress evidence of his motion denial pursuant to an from his residence obtained ar- Rowland anticipatory search warrant. lack of invalid for the warrant was gues supporting affi- probable cause because nexus to establish a sufficient davit failed Row- the items to be seized between Although conclude we land’s residence. supported warrant was cause, court’s denial of affirm the district we good- suppress based on the motion to exclusionary rule. exception faith

BACKGROUND Postal In had filled that Rowland Patrick Carr learned distributed questionnaire mailed a out and business, expressing an sexually a oriented H99 pornography. ques- in interest child rant search Rowland’s residence. The tionnaire, gave Rowland his name and the search warrant investigators allowed private post a address of office box and indi- search Rowland’s residence package once the incest, pedo- containing cated that he was interested brought video into philia, years and transvestites. About three the residence. later, targeted por- Rowland in a child government On March a delivered nography sting operation. February On package containing the two ordered video private post Carr mailed to Rowland’s beeper private to Rowland’s picture office box brochure which had a of a post a.m., office box. At about govern- 10:30 young girl bicycle on a and which stated: agents pick ment observed up Rowland your typical “New Colorado!! Not fanta- package and walk back to his of em- sy!!! Lifestyles!!!” Forbidden The brochure ployment. walking While Rowland was back provided telephone number and an e-mail to work package, beeper with the went days, address. Within a few Rowland called mode, indicating into alarm telephone message number and left a opened. agents had been maintained indicating young girls, an interest video surveillance outside Rowland’s of em- tapes, magazines, “possibly meetings.” ployment for the day. remainder of the gave telephone Rowland number of a Rowland was leaving observed his work at public pay phone and left the address of his time, beeper lunch but the indicated that the

private post office box. building. remained February response On to the tele- Before Rowland left work at about 4:30 phone message, Inspector Carr sent a second p.m., beeper stopped functioning because solicitation letter to Rowland. This letter the batteries had been exhausted. Govern- calling “Family thanked him for Affairs agents ment observed Rowland leave the descriptions Hotline.” The letter contained building and carrying to his car a back- walk prices sexually and of explicit nine video pack plastic bag, and but could not tapes, availability referred to the of “a wide visually determine by signal radio whether variety foreign maga- of both and domestic tapes. agents Rowland had the video zines,” provided and an order form. The followed Rowland as he then drove for about following day, Rowland mailed an order for blocks, around, six turned went back to his tapes, along money two video with a order work, car, parked his and entered the build- requested Rowland also informa- $125. ing for a minute or two. He then returned magazines. tion about the agents to his car and the as he followed order,' receiving government straight After drove home. agents conducted surveillance of Rowland’s home, government Once Rowland was identity office box to determine his and residence, agents observed him enter his but collecting to determine where he went after they were still unable to determine whether agents description his mail. The obtained a by tapes. Accompanied he had the video Rowland, of learned that he for the worked officers, police three or four Carr Revenue, Department Colorado of and deter- approached then Rowland’s residence and agents

mined his home address. The also knocked on the door. Rowland’s wife an- private post learned that the office had box swered the door. Carr identified himself and Rowland, been rented someone other than speak said he to to wanted Rowland. Row- but Rowland was authorized to receive mail land’s wife invited them in. Rowland then there. appeared questioned and Carr him about 7, 1996, government applied package On March he in the mail. Row- had received magistrate judge for and a issued an order land at first stated he didn’t know what Carr tracking talking for the installation of a mobile de- was about. told Rowland he (“beeper”) package containing picking up vice in a had been observed tapes ordered video taking employment. two to be delivered to it to his of private post gov- responded Rowland’s office box. Rowland was at anticipatory ernment also obtained an war- then him where the con- work. Carr asked good-faith exception does the Leon pointed argues package were. Rowland tents away suppression of apply therefore four or five feet backpack to a about tapes invalid pursuant the back- to the the video were obtained said evidence Rowland search pack. Carr then showed appropriate. warrant is search him warrant and notified jurisdiction court This exercises In the his residence. going were search reviewing In pursuant § 28 U.S.C. search, were video course of mo of Rowland’s district court’s denial backpack. In accordance with in the found accept we district suppress, tion other officers also seized findings clearly errone home, unless court’s factual during of Rowland’s items the search at the adduced and view the evidence magazines and ous including sexually oriented light favor hearing in the most suppression books. States government. to the See United able charged knowingly re- Rowland (10th Botero-Ospina, containing a package mail ceiving Cir.1995). of The ultimate determination of minors depictions with visual video un of search seizure reasonableness conduct, sexually explicit in viola- engaged in however, Amendment, is a the Fourth der 2252(a)(2). § sub- tion U.S.C. Rowland of 18 of which review de novo. question law we evi- sequently suppress filed motion to id. pursuant to the at his home dence seized hearing aAfter anticipatory search warrant. suppress, court on motion the district ANALYSIS motion, determining that

denied Rowland’s supported probable cause the warrant was I. WARRANTS ANTICIPATORY police had and that the satisfied This court first considered the constitu- Alter- the warrant. conditions tionality anticipatory warrants United natively, the district court determined Hugoboom, 112 F.3d 1081 States v. invalid, the even if the warrant was evidence Cir.1997). joined Hugoboom, the court suppressed the Leon need not because majority holding other circuits good-faith applied to the exception search. warrants, or warrants search guilty Rowland then entered a conditional upon hap- effective become[ ] “which plea charge receiving pornog- child event, pening unconsti- [are] future right raphy, appeal the dis- reserving per see tutional Id. also United se.” suppress. to trict court’s denial of his motion (1st Ricciardelli, F.2d 11 v. 998 States 11(a)(2). See Fed.R.Crim.P. Rowland was Cir.1993) (reviewing general approval of anti- imprisonment, to fifteen months sentenced circuits). by cipatory warrants federal years supervised re- three followed recognized anticipatory that court further lease. “ suspect not ‘somehow or le- warrants are argues the appeal, On Rowland district ” disfavored,’ “re- gally but have instead failing suppress in to the evi- court erred assuming peatedly upheld, probable been pursuant dence obtained from home long precedent and so as cause the conditions anticipatory the search warrant. Rowland clearly in war- execution are set forth the specifically anticipatory the asserts warrant support rant or the affidavit probable lack of was defective for cause anticipatory Hugoboom, 112 F.3d warrant.” the contraband be found believe Gendron, v. (quoting at 1085 United States Alternatively, Rowland’s home.1 Rowland (1st Cir.1994)). F.3d 965 18 that, assuming the warrant was valid asserts issued, determining anticipatory that warrants efficacy dissipat- In when “the warrant’s unconstitutional, per beeper also not the court ed” when the failed. Rowland are se per argued appeal anticipatory warrants originally anti held that are not 1. Rowland on that court per Row- cipatory are unconstitutional. See id. 1085-86. warrants filing se unconstitutional. se brief, argument accordingly in his land abandoned this After the of Rowland's initial howev er, argument Hugoboom, reply v. brief we do not address the court United this issued States (10th Cir.1997), opinion. the 112 F.3d in which Garcia, place. Constitution take See States v. noted that United “ Cir.1989) (2d (“[T]he ... only requires that not be ‘a search F.2d fact that “unreasonable,” ... and that warrants ‘presently the contraband is not located at ’” by “probable (quot- Id. supported cause.” place described in the warrant’ is imma- Gendron, ing (quoting terial, 18 F.3d at 965 long so as is ‘there cause to Const, IV)). recognized amend. The court that it believe will be there when the search ” (quoting warrant is executed.’ United Lowe, nothing is about au- unreasonable States 575 F.2d “[t]here Cir.1978))). tomorrow, thorizing today, a search for reliable indicates when information for anticipatory Probable house, contraband] will reach [the contingent warrants is on occurrence of now, then. Nor seem automati- but does it expected events, “triggering” certain typi cally unreasonable to tie warrant’s cally sale, delivery, purchase future authority to event search the future Therefore, in making prob contraband. with it

brings cause.... determination, able cause ‘triggering principle, the use of a event’ must “take into account likelihood that help place can assure that takes the search ” triggering occur on event[s] will schedule justified by ‘probable cause.’ when Ricciardelli, predicted.” as 998 F.2d at 965) (cita- Gendron, (quoting Id. occur, If triggering do not events omitted). tion Garcia, anticipatory warrant is void. See Hugoboom, As the court indicated (“An anticipatory general requirements for a two valid definition, is a warrant that has been issued (1) that it anticipatory sup warrant are necessary before the have events occurred (2) by probable ported cause and which will allow a constitutional search of the clearly or supporting warrant set premises; if transpire, those events do not precedent out conditions warrant’s void.”). execution. See id. taking In addition to into account A. Probable Cause triggering likelihood events will Anticipatory warrants differ from occur, must also determine traditional search in that at the warrants that, triggering the likelihood after supported by time of issuance are not occurred, have events the contraband will be probable cause to believe that contraband is designated place at the when searched. As currently located at the be searched. warrants, all support cause to Dennis, States v. United anticipatory an warrant “does not exist un (7th Cir.1997). fact, “In a court issues a sufficient nexus the [contra less between knowledge warrant with band] and the searched to be exists.” presently that the contraband does not exist Dennis, 115 F.3d at 530. at location the to be searched.” Id. This mean, however, anticipatory does not that B. Precedent Conditions supported by probable need not be

warrants Instead, probable an issuing anticipato cause. before Because the cause for determine, ry magistrate anticipatory contingent warrant the must an warrant is on the events, the presented anticipated based on information the occurrence of the warrant application, probable express permit warrant that is or affidavit should conditions there only ting cause to the items to be seized will be the search to after the believe be conducted designated place anticipated place.2 at the when the search is to events have taken See id. Although preferred practice goboom, the is for the anti- 112 As the court F.3d at 1087. indicat- out, cipatory incorporate Hugoboom, warrant to itself set Fourth Amendment ed there is no reference, by execution, requiring suppression the when the condi- conditions for warrant's violation anticipatory this court has held that failure to tions for execution of the warrant " state the conditions in the warrant does not necessarily are 'stated in the affidavit solicits war- rant, issuing magistrate, accepted by render the See Hu- warrant invalid.

1202 regard invalid (“[A]t is therefore an issuance and a court issues its 528 the time at to which the warrant’s warrant, of the extent exists less anticipatory probable cause com no search will be at assure that provisions will be located that contraband to believe See probable until cause exists. after menced premises to be certain searched (Alaska 1166, 1172 Gutman, P.2d Thus, v. 670 precedent State transpire. conditions events precedent The conditions anticipatory Ct.App.1983). warrant of an to the execution (citation anticipatory warrant are of an validity.” omit- execution integral to its are probable cause de ted)). against guarantees that prema- mere not ensures This Garcia, at time of has issuance termination see ture execution 703-04, the warrant is execut judi- fruition when maintains reached at but also 882 F.2d probable cause determi- over the ed. cial control of nation and over circumstances sum, not magistrate must ab In execution, generally Ricciar- warrant’s see judicial determining function of dicate the delli, (stating because F.2d at 12 998 time warrant is probable cause at the pres- future events warrants conditioned on police relying on assurances sought potential beyond that of tradi- ent for abuse un warrant will be executed the search warrants, issuing magistrates such tional Instead, exists. probable cause less opportunities protect against must warrants require particularized must government agents unfettered for to exercise existing when showing, based facts on discretion, part placing condi- explicitly issued, is that the items to be seized execution). on with these tions Consistent designated location when the will at the be war- purposes, governing the the conditions Hendricks, place. takes See search clear, “explicit, rant’s execution should be 655; Wright, generally see State v. narrowly to avoid misunder- drawn so as 250, (Ct.App. 772 P.2d 258-59 Idaho by government manipulation standing or 1989) (Burnett, J., concurring) (discussing 703-04; Garcia, accord agents.” judicial abdication cause risk

Dennis, Ricciardelli, F.3d possible dangers one of determination as particularity F.2d 12. The which Lee, warrants); anticipatory v. State conditions, specify the should (1992) Md.App. A.2d 398-400 however, vary on the individual based will (same), aff'd, Md. 624 A.2d 492 facts of case. each (1993). Although prece the conditions Anticipatory Warrants Based C. an warrant will dent ensure that Delivery on of Contraband prematurely, such not be conditions executed recognized Hugoboom, when magis As as a substitute do serve indicates there will application See trate’s cause determination. Hendricks, delivery of con government-controlled be a searched, (9th Cir.1984) to be (holding anticipatory traband to 654-56 for a is established an home was search warrant for search defendant’s issued, may provided anticipatory warrant provided no assur invalid because affidavit on the take warrant’s execution conditioned ance that defendant at, to, receipt delivery collecting airport, it at contraband’s his home after 1086-87; designated place. 112 F.3d at despite contained condition fact that warrant Garcia, F.2d at until also 702-03. that it was not to executed see house). context, anticipa Hugoboom If court indicated arrived at defendant’s a affidavit refers to con tory solely speculation on when the warrant warrant is based place delivery to the given of contraband will be found at a trolled contraband future, search, requirement designated a for the nexus time in the it lacks location at some and the affida- probable at the of of cause is satisfied probable cause foundation moment Moetamedi, 225, (2d Cir.1995)). war- 46 F.3d 229 actually execution of the v. satisfied ” (quoting rant.' F.3d 1087 112 searched, independent place to the to provide additional made be such as vit need not linking place required to be searched to pick up evidence when a defendant is to a activity. package containing See F.3d at 1086. contraband at a criminal of- fice, application present the warrant must delivery of contraband When establishing facts additional the contraband government’s completely is not within place designated will be taken to the for however, control, delivery when the is to Hendricks, search. F.2d 654-55 Cf. place premises a other than the be to made (holding anticipatory warrant for search of search, designated for additional reliable in home defendant’s was invalid when defen- application formation the warrant must required pick up dant was suitcase con- that the contraband will at the indicate be taining airport contraband and there was designated premises at the time of the no assurance at time warrant was issued that example, delivery For when the of search. home). defendant would take suitcase to his contraband is not within the control of the government, supporting affidavit should II. VALIDITY OF ANTICIPATORY agent applying for

show not WARRANT TO SEARCH ROW- delivery a of warrant believes contraband is LAND’S RESIDENCE occur, going agent also how the but delivery, expected learned of the how reliable argues anticipatory Rowland warrant is, the information and what the role of law in probable this case was invalid for lack of expected will enforcement officers supporting cause failed because Garcia, 703; delivery. 882 F.2d at Unit to establish a nexus between Rowland’s resi- (7th Leidner, 1423, ed States v. 99 F.3d any suspected dence and the contraband or LaFave, Cir.1996); Wayne R. see also activity. criminal Rowland asserts that al- & A Treatise on the Fourth Search Seizure: though private post office box had been (3d ed.1996) 3.7(c), § at 366-67 Amendment suspected activity, linked to criminal the war- (stating probable that to establish cause for any rant affidavit failed to establish link be- affidavit must “indicate activity tween and his home. such how it is known that the items to be seized place speci undoubtedly “Probable cause re will on a later occasion be at quires a stating [the fied” and that more details will be nexus between contraband eases). delivery suspected activity necessary in seized criminal and the or] non-controlled Similarly, delivery place when a controlled is not to be searched.”3 United States v. Ricciardelli, satisfy the nexus 998 F.2d at see also United 3. Some courts have held that to Hendriclcs, anticipato 743 F.2d 654-55 requirement States of cause in Cir.1984) context, (holding anticipatory warrant was in- ry application must because, time valid for lack of a demonstrate the contraband is "on sure and issued, a warrant was the contraband was not on course to its destination” before irreversible to the to be searched and there sure course may v. Ricciar warrant delli, be issued. United States was no assurance defendant would take contra- (1st Cir.1993); 12-13 see also place). Leidner, band United States v. 1427-28 typically requirement sat- The "sure course” (7th Cir.1996) (noting several circuits have delivery isfied in controlled cases when the deliv- requirement), adopted cert. de sure course ery directly is made to be searched. nied, -U.S.-, 137 L.Ed.2d Indeed, controlled-delivery Hugoboom, case Garcia, (1997); United States v. the contraband was addressed to and in which 1989) (2d (noting variety 702-03 Cir. wide residence, directly to the defendant’s sent upheld anticipatory courts have warrants when court stated that the "sure course” standard clearly met). requirement course As one court sure satisfied the facts case. See explained: has not, however, F.3d at 1086-87. The court did proxy The sure standard functions as a course expressly adopt requirement the "sure course” presence the actual the contraband at for the Tenth Circuit. See id. magis- how, whether, the locus to be searched. It offers the heightened It is unclear trustworthy trate a band, assurance that the contra- anticipato- requirement applies "sure course” site, though yet on the will ry delivery almost the controlled con- warrants outside certainly recognize be located there at the time of the stan- text. We that the "sure course” search, fulfilling requirement way satisfying of future the traditional thus dard is one requirement probable cause. In this nexus cause. 1204 (10th box. post at his office sent to him

Corral-Corral, Cir. F.2d 937 899 Dennis, 530; indicated that 1990); affidavit further 2 The 115 F.3d see also 3.7(d). delivery a LaFave, planned make controlled agents § cause to to supra, Probable post tapes to Rowland at a not arise the video person’s search residence does of to surveil- planned that maintain solely upon probable cause office box and based Instead, post a there over office box to determine person guilty crime. lance per linking up package. The picked evidence must additional that Rowland suspected activity. had criminal that Rowland son’s home to affidavit also indicated Hendricks, collecting 743 F.2d at see also several occasions been observed on Lalor, 1578, 1582- then post v. 996 F.2d mail from the office box his (4th Cir.1993) . (stating “residential walking back work. to only infor upheld some searches where [are] activity criminal de

mation links delivery was the controlled Because residence”). fendant’s box private post office made to Rowland’s residence, however, not to establish his analy probable cause Under delivery would ing probable cause that the employed non-anticipatory traditionally sis probable not mean there was take does cases, issue probable cause to a warrant Row tapes be at that the video would cause support exists search when place. took land’s residence when search forth that ing sets sufficient-facts affidavit Therefore, wheth must this court determine that prudent person to believe a would lead a supporting the er the affidavit premises un described search establishing a warrant contained evidence of a cover contraband or evidence crime. and Row nexus between the contraband Burns, v. F.2d See United States Hendricks, land’s residence. See Cir.1980). determining whether for (holding anticipatory warrant 654-55 a war probable cause exists issue search be home was invalid search defendant’s rant, “prac make a magistrate’s task is to picked up defen cause contraband was tical, on the common-sense decision” based being to his home dant rather than delivered totality forth of the circumstances as set provide facts establish and affidavit failed Gates, the affidavit. Illinois U.S. and defen ing a nexus between contraband (1983); L.Ed.2d S.Ct. home). dant’s Corral-Corral, also 931. Re see give magistrate’s viewing should courts Only made oblique reference was “great probable ultimate cause def decision anticipated the con- affidavit to the route of Cusumano, erence.” States v. United delivery post to Rowland’s traband after its (10th Cir.1996) (en banc) 1247, 1250 antici- office The affidavit stated: “It is box. omitted). (citation Nevertheless, this court [Rowland, up the pated picking after magistrate’s determina will not defer to box,] to his tapes post go from the office will “ provide if does ‘a tion the affidavit to his employment and after work concluding basis for substantial no infor- residence.” The affidavit contained ” Gates, 462 (quoting Id. cause existed.’ previ- had suggesting mation Rowland 2317). 238-39, 103 S.Ct. ously pri- transported contraband from that he post vate box to his home or in this contained infor- office affidavit case at his previously determi- had stored contraband supporting mation cause any provide in criminal home. Nor did the affidavit nation that Rowland involved suspect- linking activity delivery to facts Rowland’s residence and that the Rowland’s having illegal activity, past as place. take ed such private office box would illegal or other materials had or- similar video indicated that Rowland directly to his home. requested delivered dered video had case, however, necessary requirement pre- is a the war- "sure course” because we conclude satisfy validity anticipatory war- requisite rant did not requirements, traditional all II, Part we need not fur- see rants. infra stringent whether the more ther determine (internal omitted)). quotations government nevertheless contends fense” In this ease, infor- affidavit contained sufficient could infer from the affi- magistrate to determine there mation for the unlikely davit that Rowland would be to view col- probable cause that Rowland would tapes place or store the video at his of em- it to his home and then take lect ployment. possible A further inference was government pursuant to Hendricks, at Rowland’s residence F.2d at 654-56 seized 743 place.6 Cf. suppressed if the for of need not (holding anticipatory warrant search the warrant be exclusionary rule, exception invalid when defen- good-faith home was to the defendant’s required pick up Leon, suitcase con- to dant was 468 v. U.S. set out airport and there taining (1984), contraband at 3405, 897, 677 L.Ed.2d 104 S.Ct. 82 indicating defendant would information no good- Leon applicability of the applies.8 The linking de- otherwise suitcase home or take question law which this exception is a of faith illegal activity); residence to State fendant’s Corral-Cotral, reviews de novo. See court 263, 503, Goble, Wash.App. 945 P.2d 88 v. at 929. (1997) (holding anticipatory warrant 268-69 Leon, Supreme modified the Court In invalid home was for search defendant’s exclusionary by Amendment rule Fourth to did facts made known because pursuant to a holding evidence seized establish, issued, the at warrant was time not invalid later to be need search warrant found to be required nexus the contraband between suppressed if officers not seized, mailed to defendant’s which was reasonable, good-faith re- objectively acted box, home); see also office defendant’s 922, at the warrant. See 468 U.S. liance on Lalor, (holding, in non- 996 F.2d at 1582-83 stated that 104 The Leon Court context, 3405. S.Ct. antieipatory search warrant warrant pursu- obtained “suppression of evidence on home was invalid based for defendant’s only on a ant a warrant should be ordered affidavit nexus between to failure of to establish home). only in those unusual activity case-by-case defendant’s We basis and drug sup- pur- the warrant was not will further the therefore conclude in which exclusion cases 918, and was inval- by probable cause thus Id. ported poses exclusionary rule.” at of the explained id.7 104 that the 3405. Court S.Ct. exclusionary police “to deter purpose rule’s is EXCEPTION III. LEON GOOD-FAITH punish the rather than to errors misconduct 916, magistrates.” Id. at 104 judges not Although the warrant was cause, The Court further reasoned that by probable evidence S.Ct. 3405. supported reviewing recognized has government Carr 8.This court also asserts because 6. cases, directly may, appropriate turn to attempt the search warrant court “made no to execute considering good-faith issue without first indicated to him that [Rowland] until first residence,” validity the warrant the Fourth Amend- videotapes under "[i]n were in his McKneely, 6 delayed v. until ... nexus ment. See United States effect ... the search Cir.1993); United Although 1453 accord States requirement met." officers had been Leon, 924-25, S.Ct. comply anticipatory 468 U.S. 82 warrant’s con- must with an executed, (1984). important are validly When there to be L.Ed.2d ditions for warrant issue, however, questions satisfy compliance threshold Amendment docs not Fourth such that, questions "necessary requirement issuance, time of the warrant’s of such is to at the and resolution guide supported by by the warrant must future action law enforcement officers above, by placing appropriate probable magistrates,” cause. discussed it to ad- As is first execution, magistrate on a conditions warrant's the Fourth Amendment issues before turn- dress Leon, pre- good-faith is not executed ing 925, can ensure maturely. issue. n not, however, 3405; do Such conditions also United States v. see Dahlman, (10th Cir.1993). provide a basis themselves making probable addition, cause determination. resolution the Fourth Amendment Hendricks, magis- case, F.2d at 654-56. The See necessary, to often as in this deter- issue is judicial must function of trate ensure reliance on the war- mine whether the officers’ probable determining the existence of cause purposes good- was reasonable for rant government agents improperly delegated Leon, not analysis. 468 U.S. faith by relying police will Dahlman, on that a search assurances also 13 F.3d at S.Ct. see take there is cause. not unless (stating language reliance on warrant officers’ part to be overbroad was "reasonable in found practice using boilerplate [of certain because this failed Because we have concluded affidavit 7. language had not been ruled uncon- magistrate's warrants] provide a for the substantial basis determination, prior today”). Based on these con- we stitutional siderations, probable cause need not con- whether, assuming appropriate that this court had ex- it sider isted, underlying validity adequate of the war- were for a address the the warrant conditions first good-faith exception. considering valid warrant. rant before nexus police be deterred between contraband and Row- misconduct acting provide probable excluding seized land’s residence cause to evidence search, objec- pursuant supporting a search warrant the warrant and facially were tively lacking belief that their conduct did not so deficient or so reasonable indicia of the Fourth Amendment. See id. cause that the officers’ violate 918-21,104 reliance on in conducting S.Ct. objectively search was unreasonable. Although the Court indicated Despite the affidavit’s failure to demon- pursuant warrant that evidence seized to a link strate a sufficient between the contra- cases, suppressed should be in unusual band and home for Rowland’s recognize cir the Court did that there are purposes, the affidavit as a whole was not in which an on a cumstances officer’s reliance affidavit, containing only bare bones conclu- objectively not warrant could be reasonable sory completely statements and of devoid suppression appropriate. is id. at and See Leon, 926, support. factual 468 U.S. at 922-23, 104 S.Ct. 3405. The Court described 104 McKneely, S.Ct. United States v. 6 situations, four such two of Rowland which (10th 1447, Cir.1993); 1454 United First, argues apply here. an reli officer’s Cardall, 1128, States v. 1133 objectively ance is not the reasonable when Cir.1985). above, described As the affidavit lacking warrant is “based on an affidavit ‘so detailing investiga- contained information the in indicia of cause as to render suspected tion into Rowland’s criminal activi- entirely official its unrea belief existence ty. ” The linked Rowland to the con- 923, (quot at sonable.’ Id. 104 S.Ct. 3405 likely traband indicated and Rowland was Illinois, 610-11, ing 590, Brown v. U.S. pick up post at video his office box (1975) (Powell, 95 S.Ct. L.Ed.2d 416 workplace. and take them back to his J., concurring part)). Second, good- provided affidavit also information from exception apply faith will not suppression reasonably which it could be that inferred appropriate when the facial warrant is “so not Rowland would leave the video ly ... executing deficient that officers work, elsewhere, take them possi- but would reasonably presume cannot it to valid.” be bly home, view or store. Id. supporting affidavit placed specif- also determining whether the Leon- ic conditions on execution of the warrant. good-faith exception applied, should be The affidavit contained as- Carr’s “good-faith inquiry objec is confined to the government agents surances that would tively question ascertainable a rea whether maintain surveillance over the after sonably well trained officer have it was to Rowland’s box delivered office known the search illegal despite that and that the warrant would not be executed magistrate’s authorization.” n. Id. at 922 brought unless the contraband was Row- into n. making 104 S.Ct. 3405 23. In this determi establishes, land’s home. The record dis- as nation, we consider “all circum below, cussed Part IY that the officers stances,” id, and assume offi complied in executing with the conditions knowledge cers have “a reasonable what warrant. prohibits,” id. at 919 n. law Finally, we note at the time the war- 3405 n. 20. executed, rant had was issued this circuit argues good-faith yet ex constitutionality Rowland not ruled on the of anti- ception apply cipatory does in this and had not ease because warrants set out condi- validity failure to affidavit’s establish a sufficient tions on the such warrants. Given law, nexus loca between contraband and the the unsettled state it was “readily rely tion to be was a searched observa unreasonable for officers to on ble,” Ca?'dall, magistrate’s “non-technical defect ... should [that] authorization. See easily (stating have experienced considering been detected F.2d at 1133 postal principles inspector.” disagree. Although good-faith We “it ... be Leon must did knowledge the affidavit not establish a sufficient remembered that the and under- a mistake not their nalizing the officers for law standing of enforcement logically contribute to de- “cannot intrica- own appreciation constitutional their violations.” of Fourth Amendment by the standards terrence judged not to be cies are Leon, Leon, 3405. Con- 468 U.S S.Ct. lawyers”); see also applicable (“If at Rowland’s the evidence seized purpose sequently, S.Ct. 3405 need not be pursuant to the warrant exclusionary unlawful home is to deter rule Hendricks, conduct, suppressed.9 from a then obtained police evidence Cf. obtained in (upholding admission of evidence only if it can be suppressed search should exception, good-faith de- under Leon officer had search the law enforcement said concluding may charged spite knowledge, properly cause because for lack of unconstitu- invalid knowledge, search was (inter- contraband de- nexus between Amendment.” sufficient tional under Fourth established). omitted)). residence was not fendant’s quotations nal good-faith ex Application of the OF WARRANT IV. EXECUTION consistent with ception in this case is also agents argues the also the Court stat Rowland exception’s rationale. As the rely in Leon, reasonably not on exclusionary rule should could in the ed they failed to conducting the search because only applied in unusual cases when those misconduct, Rowland satisfy will the warrant’s conditions. purpose, police to deter its that warrant’s execution at first asserts the furthered. See 468 U.S. continuing indicated, beeper conditioned on the officers’ reliance was 3405. As the arrived until contraband function the magistrate’s case on the determination Therefore, objectively Rowland unrea Rowland’s residence. cause was not failed, the sonable, beeper that when of suggests in the the and there is no indication properly execute the warr any ficers could were involved record officers warrant. Pe- ant.10 the misconduct quickly]; argues drains more was submit- and thus the batteries

9. Rowland also the affidavit (3) functioning magistrate beeper stop disclosure of the would be- ted to the without full all and "Inspector Specifically, he asserts for his residence after the facts. fore the defendant left knew, pre-existing logical assumption that there were no facts that Carr A more the work. connecting activily during home” criminal to Rowland's pick up mail defendant would his his magistrate.” break, yet beeper "failed to so the He allowing enough inform the lunch thus functioning also asserts Carr "failed to inform until the time to continue defen- beeper's risk batteries of the known got proceeded to his dant off work and resi- would fail." dence. Suppression appropriate argument. if reject of evidence is “the We therefore Rowland's preparing were or reckless dishonest by affidavit” and was misled their good-faith exception save The Leon will not 10. Leon, information 926, affidavit. improperly See United States executed warrant. Here, the record Moland, 104 S.Ct. 3405. does (10th Cir.1993). v. was dishonest or not indicate Instead, good-faith analysis assumes "that preparing affidavit for the war- reckless in properly warrant the officers executed the above, As discussed Carr's belief that the rant. objects only places those and for those searched provide probable was sufficient to cause by were covered that it was reasonable to believe for issuance of warrant to search Rowland's Leon, at 918 n. the warrant.” 468 U.S. objectively There was not unreasonable. home Medlin, n. S.Ct. 3405 see also indicating actually evidence that Carr was no Cir.1986) (10th (noting pro- aware that the affidavit was insufficient exclusionary deterring police is aimed rule Likewise, is no evi- vide cause. there explaining “[u]nlike cases misconduct beeper would fail or that Carr knew the dence police properly executed an invalid in which reasonably expect a failure. As the could such valid, they reasonably thought warrant that out, points Government police improper there is execution in cases expect Inspector Carr to it is unreasonable to deterred"). Therefore, conduct only must be (1) anticipated the defendant would have that: in accordance if execution was package pick up mail after the his 15 minutes good-faith excep- may of the terms morning; been delivered his box in the had Moland, applied. F.2d at tion be (2) package open im- the defendant determining that in whether offi- mediately, triggering We note thus the alarm mode on power complied conditions in beeper requires with the warrant more cers [which mode disagree. eating We The warrant was not ex- the video were in his home was pressly made, conditioned on the continued func- voluntarily and thus the statement Instead, tioning beeper. sup- of the upon could not satisfy be relied the war porting “package affidavit stated that rant condition. specifically Rowland asserts [containing tapes] kept the video will be “involuntary light statement was by under' surveillance other [Carr] and/or intimidating invalid atmosphere law until it enforcement officers is received created police numerous armed officers in [Rowland’s] residence” and that “[o]nee entry there, questioning and Carr’s him received an individual at the residence and nowhere for Rowland to retreat.” brought described and when into the Whether Rowland’s statement was involun residence, this search warrant will be exe- tary question subject is a of law to de novo cuted.” any The affidavit did not contain review, although accept we the district beeper reference to a specific or to the findings court’s factual unless are clear maintaining means of surveillance. ly erroneous. See United States v. Hernan dez, 1493, 1501 Cir.1996). collecting pack-

Rowland was observed age containing taking the video “The priv [F]ifth [A]mendment’s employment. back to his ilege against prohibits self-incrimination beeper opened indicated that he incriminating admission of statements where walking while back to work and acts, governmental promises threats or further indicated that when later Rowland overborne,” the defendant’s will to become hour, during left work package the lunch the rendering thus involuntary. the statements Although beeper remained at his work. the Matthews, United States v. stopped functioning finally before Rowland (10th Cir.1991). In determining whether the work, government agents left continued to overborne, defendant’s will was this court Rowland, maintain surveillance over follow- totality looks at the of the circumstances. ing him from his work to his residence. The See id. agents leaving observed Rowland work car- rying backpack bag, a and both of which he suppression hearing, Inspector At the Carr apartment. agents took into his reason- observing testified that after Rowland enter ably likely believed carrying Rowland was apartment, his he and several officers tapes backpack the video bag, or the knocked on Rowland’s door and were invited they absolutely but were unable to determine in Rowland’s wife. Carr then asked Row- tapes that Rowland carried the video into his package. land about the Rowland at first warrant, executing residence. Before the knowing anything package. denied about the however, confirm, Inspector Carr was able to Carr informed that Rowland he had been admission, based on Rowland’s that picking up the video package taking observed tapes backpack were in the in Rowland’s employment. it to his Rowland then suppression hearing, home. At the Carr tes- package stated that the workplace. was his tified he did not indicate to Rowland that he again Carr asked Rowland where the con- had a search warrant until Rowland admitted response, tents of the were. In tapes were in his home. Carr also testi- tapes Rowland admitted video were in understanding fied that his of the warrant apartment. Carr then informed Rowland was that if he had not been able to confirm that he had a warrant to search Rowland’s tapes apartment, the video were in the home.

warrant could not have been executed. entry The record establishes that Carr’s Thus, satisfy the officers did into Rowland’s residence was consensual. executing conditions in the search warrant. rely gain Carr did not on the warrant to argues,

Rowland further entry howev into Rowland’s home or to elicit incul- er, Rowland, Inspector patory that his statement to Carr indi- statements from but executing any we do not make de conditions themselves. concerning sufficiency

terminations denied, 470 U.S. a search warrant after disclosed he had (1985). L.Ed.2d 382 tapes in his the video were Rowland stated accompanied was Although home. Carr case, Inspector In Postal Carr Service officers, they remained behind Carr several Defendant, sting investigation of led the Rowland, spoke he and the record while operation, of the warrant. execution any does not indicate that exhibited correspondence with Defen- Subsequent to intimidation. The record signs of force or por- purchase of child concerning dant no that Rowland was sub- contains evidence materials, targeted Inspector nography jected improper promises. to threats or whereby sting operation for a Defendant police custody placed was Rowland not in pornography child video inculpatory arrest time the under private would be delivered Defendant’s made. Under these circum- statement was zeal, In his understandable office box. stances, voluntary. statement Rowland’s procuring Inspector, as

officer, a search applied for and received video warrant to search CONCLUSION every observation Defendant’s home. court war- This concludes judge, reported to the made and lack of rant invalid for mail at pick up would Defendant on the failure to based affidavit’s establish private to his mailbox take it the contraband and sufficient nexus between Nothing employment. Nevertheless, the location be searched. magistrate judge reported knew refusing the district did not err court Further, pointed to Defendant’s residence. suppress recovered the search of evidence report anything Inspector did acted in Rowland’s home because magistrate judge suggest reasonable, objectively good-faith reliance on pornography likely child are more viewers of the warrant and because officers com- it at their What we know view homes. plied proper- with the conditions and viewing people pornography on their about Therefore, ly under executed the warrant. computers suggests high probabili- at work a exclusionary good-faith exception to the the ty might pornogra- that Defendant observe rule, required. suppression was not Accord- Kane, phy High-Tech at work.1 See David ingly, this court AFFIRMS. Thwart Internet Measures Can Mis- Office use, J., 24, 1997, Jan. available Bus. Dallas McKAY, Judge, dissenting: Circuit (discussing problem the in 1997 WL 7887838 frequent pornography employees’ of visits to fully majority agree opinion I the that sites). noted, nothing web I have that As the probable to that the no cause existed believe reported Inspector magistrate the knew to located at named video would be the judge any created between the video nexus i.e., searched, place to be Defendant’s resi- tapes and Defendant’s home. dence, magistrate war- when the issued the deficiency help The To cure this rant for search residence. obvious cause, Inspector applied in- supporting provided support authorizing a the use of an sufficient to nexus between received an order facts monitoring [beeper] to illegal activity and the electronic device track the contraband hope in the Defendant place package to be United States v. that searched. See (7th Dennis, 524, Cir.1997); package home. 115 529-30 would take the to his The Ricciardelli, 8, judge Inspector reported magistrate 11 to States v. 998 F.2d United (1st Hendricks, him, Cir.1993); beeper permit accompa- v. that the would United States (9th 653, Cir.1984), officers, by nied team of law 743 F.2d 654-55 cert. his enforcement viewing pornography pornography acknowledge on view the child at home rath- 1. I would rep- Inspector's perhaps er failure to the Internet is less intrusive and obvious than at work. might viewing judge facts that pornography video on a television resent to the than a situations, however, support inference that would view screen. The two are suffi- an Defendant my ciently analogous point pornography reinforces out that there is no child at home a more of reasonable inference that Defendant conclusion.

1211 ing were an search package. anticipatory If the warrant must de to track the notify alarm opened, an accelerated termine that cause will exist believe, future, point the officers. some will designated items to be seized be at the beeper stopped knew that the The officers place to be when the searched search occurs. employ- functioning at Defendant’s Garcia, 699, See United v. States 882 F.2d day. he left work for When ment before (2d Cir.1989), 702 cert. nom. denied sub and the beeper failed officers could States, 943, v. Grant United rep- visually package, observe no means (1989); S.Ct. 107 L.Ed.2d 336 v. State magistrate judge cure resented to could Smith, N.C.App. 478 S.E.2d to maintain surveillance over the failure (1996). Anticipatory search in warrants are it package until was received at Defendant’s herently because, problematic other unlike Despite Inspector’s home. full knowl- warrants, they depend validity keep for their on edge that and his team had he failed surveillance, require- yet transpire under a events which have and which magistrate judge’s probable ment uniquely are often exe control of the on, Dennis, rested cause determination cuting See officers. 115 F.3d at executing the warrant he saw Leidner, was bent on as United States v. 99 F.3d facts, applying fit. Leon to these Cir.1996) (7th (Wood, J., 1430-31 concurring), cert. — majority following scenario: sanctions denied, U.S.-, S.Ct. approach judge Officers for a (1997); Ricciardelli, L.Ed.2d 542 suspect’s search a home for (Torruella, J., 20-21 concurring). Unlike de- package of contraband after a controlled warrants, normal warrant is livery They post to a office box. declare justified past observations or events suspect usually takes his mail from sufficient to establish but employment. to his office box rather conditions or events the But, say, they the officers find evidence if officers have sworn will either observe during operation which shows that Dennis, or cause to occur. particular package in his suspect has this (controlled delivery); home, they will This execute the warrant. 1081, 1083-84 Hugoboom, 112 F.3d Cir. just un- represents type scenario 1997) (controlled Ricciardelli, delivery); checked discretion that the Fourth Amend- 9-10, 16 (sting operation). F.2d at prevent destroys ment was intended to analyze purpose precedent the notion we Fourth Amend- of.the condition objective ment violations under a standard of against premature exe ensure unlawful Therefore, respect- I must reasonableness. maintaining judicial cution of the warrant fully majority’s from dissent the conclusion probable control over the cause determina good-faith exception that the set out in Unit- tion war and over the circumstances of the Leon, 922-24, 897, ed 468 104 States v. U.S. Dennis, at rant’s execution. See 3405, (1984), in applies L.Ed.2d 677 S.Ct. 82 528; 1085-86; Hugoboom, 112 Ric F.3d at prevent suppression of evi- this case to ciardelli, 12-13; Garcia, F.2d at 882 998 dence. prece at When the condition F.2d 703-04. satisfied, magistrate judge’s dent is not Anticipatory I. Search Warrants determination is undermined cause “If illegal. of the warrant is execution “anticipatory In war- all so-called search party seeking create[s] the search ... rants,” procure where the officers who [provide] proba which circumstances part pre-ar- execute the warrant are of a cause, justify ble which then the warrant delivery, ranged plan, sting, or controlled itself, his magistrate is removed ... from judge’s magistrate determination of Smith, 478 constitutionally mandated role.” hinges expected cause on the occurrence of Hendricks, S.E.2d at see some event or condition which was future notes, exactly 654 n. 1. is the course of events represented majority to him. As the This ante, 1201, in magistrate judge see issu- this case. 126 L.Ed.2d 686 510 U.S. is based on facts anticipatory warrant The (1994). police in which cases officer, executing “Unlike procuring

which the they invalid warrant an judge properly execute magistrate officer, issuing and the valid, in cases of reasonably thought was Thus yet occurred. have not know full well police conduct there is improper execution executing good faith any claim of Medlin, 798 F.2d at be deterred.” that must their inextricably up with bound officers is the exe- is whether question then 410. The To com- is issued. after the warrant conduct with the in accordance in this case was anticipato- cution of an notion pound this doubtful2 Moland, F.2d the warrant. See terms of by suggesting that the ry warrant at 261. he or acting good in faith when she officer is condi- knowing that the executes an this Because failed, i.e., repre- not occur as did tions slightly from other one, analysis my differs magistrate sented, totally ignore the tois the warrant. analyzing the execution of cases determining “probable” cause

judge’s role of questions address the traditional I do not by autho- good faith notions of and to distort In- of a warrant.3 relating to the execution facts for other rizing officer to substitute stead, with the essence I am confronted judge relied on. ones the war- anticipatory search the dubiousness role that the cancerous illustrates This case future events or rants: The occurrence “anticipatory search war- these so-called in the exclusive which are often conditions integrity of undermining the play in rants” which executing officers and control of issuing man- judicial in warrants function observed, by the upon, but not are relied by the Fourth Amendment. dated deter- judge fidelity Inspector’s in the exe- mination. Applicability of Leon II. The of those future conditions cution support can thing arguably even Leon, Supreme Court held In validly was either this warrant claim apply when exclusionary rule would not how validly I cannot see executed. reli- issued objectively reasonable acted “in officer majority that “the can conclude subsequently invalidated search ance on a executing the complied with the conditions 922, 104 S.Ct. warrant.” U.S. at ante, warrant,” the essential when exclusionary emphasized that The Court The execution conditions failed. deterring rather than sworn police rule is aimed applica- prevents misconduct, warrant was invalid rule judicial and the should tion of Leon. it would deter only in cases which invoked 918-21, 104 id. at police misconduct. See analyzing the conditions of Leon is a applicability S.Ct. 3405. descriptions warrants courts read the we review de novo. question of which law “in a ‘common supporting documents their Corral-Corral, F.2d States v. See United Gendron, States v. fashion.” United sense’ Cir.1990). 927, 929 (1st Cir.) (quoting United 102, 109, sca, v. Ventre circuit that the States settled It is well (1965)), de cert. 13 L.Ed.2d 684 apply to S.Ct. good-faith exception does not Leon 654, 1051, nied, 130 115 S.Ct. 513 U.S. United improperly executed warrant. See (10th (1994); States v. Moland, 259, see United L.Ed.2d 558 F.2d v. States (2d Cir.1993), 1112, Medlin, Bianco, Cir.1993) 1116-17 (citing States v. United 1069, 1644, denied, denied, (10th Cir.1986)), 511 U.S. cert. cert. warrant; executed the warrant was anticipa- whether Supreme ratified Court has never 2. The fashion; untimely en tory and has not addressed or whether officers' search warrants in an good-faith exception in this context. authority purpose Leon try prior and notice of without Medlin, 798 F.2d at 410 permissible. See was Generally, challenges warrant execution ask LaFave, Wayne Call (citing R. "The Seductive scope, intensity, and duration whether the Leon, Ratio Expediency It’s excessive; whether cer- were warrant execution Ramifications, U. ILL.L. Rev. nale and prop- were not named in the warrant tain items erly 915-16). seized; prop- persons were whether certain to execution of erly or searched incident detained (1994); 128 L.Ed.2d 364 see also United both valid for the same duration. See id. at Tagbering, States v. likely 97. It is more than that the same Cir.1993) (construing supporting magistrate warrant and judge issued both the order and “ ” “fairly” in affidavit and ‘commonsense’ the warrant. The reasonable inference is manner) (citation omitted). Courts also rec- Inspector both the magistrate and the ognize governing judge that the “conditions an anti- knew beeper that the would be used to cipatory clear, ‘explicit, warrant [should be] maintain surveillance of the package. ” narrowly preserve magis- and drawn’ importantly, More light in of what was judge’s determining probable trate role in represented to the judge and the Ricciardelli, (quoting cause. 998 F.2d at 12 sting operation implemented, as see Gen- Garcia, Gendron, 703-04); 882 F.2d at see 18 dron, 966-67, only 18 F.3d at reasonable F.3d at 965. The conditions this case were meaning maintaining “surveillance” of the stated the affidavit supporting the war- package, Appellant’s App. at is (hold- Hugoboom, rant. See 112 F.3d at 1087 would, until the package was re- ing valid conditions for execution of the war- residence, ceived at Defendant’s either main- “constitutionally satisfactory,” rant which are tain visual package watch over the or observe “stated the affidavit that solicits the war- and ascertain package’s whereabouts rant,” “accepted by issuing magis- using the monitoring electronic device. See trate”). I therefore look at context in Bianco, 998 (analyzing F.2d at 1117-24 sur- which the warrant was issued to determine veillance of oral by roving communications the nature of these conditions and whether bug). electronic Continuous surveillance was clear, simple communicated directive necessary to determine package when the Gendron, to the officers. See actually brought was to the to be (reviewing F.3d at 966-67 descrip- affidavit’s searched, Defendant’s residence. See Gen- triggering tion of where future event would dron, (discussing importance 18 F.3d at 967 occur). warrant). of surveillance to execution of case, Inspector sup- interpretation Carr’s This sup- common-sense porting ported by the warrant stated two essential con- alleged facts ditions which anticipa- beeper must occur before the order affidavits. See id. at 966- tory warrant is executed. The Inspector first condition 67. The represented magis- to the required “package kept judge visually [would] trate that he had observed by [Inspector under surveillance prior Carr] Defendant on picking three occasions other law up enforcement officers until it his mail returning to his and/or employment. [was] received at the residence pledged located” at also Appellant’s App. the named magistrate judge address. at 95. beeper was pledged The second “required condition that the search to ensure that the material in the only package executed when the [was] not lost and to assist in identi- fying perpetrator.” “received an individual at the Appellant’s App. only residence brought described and when 81-82.

into the residence.” Id. These two conditions It is irrelevant that the method of surveil- linked; inextricably are both had to be satis- explicitly lance was not mentioned on the fied for properly the warrant to be executed. supporting face of the its surrounding procure- affidavit,

Several factors because the means of main- beeper taining ment of the search warrant surveillance of the that were support inescapable order reasonably conclusion that foreseeable beeper necessary surveillance judge when he issued the search warrant and proper only execution of the warrant. The In- employed during sting the means the spector suppression hearing operation testified at the through beeper were the use of the applications by that his for the search warrant visual observation. at See id. 51. beeper presented order were Although keep package and issued the officers could the day, on the sight same see id. at and the within their when Defendant carried they package post warrant and order indicate that were the from the office box to his by [Inspector other law place employment, impossible Carr] lance of it was and/or sting opera- [was] until it received during the enforcement officers maintain surveillance irreparably benefit of had as executed without the the at residence” [Defendant’s] tion added). building the beeper (emphasis Defendant entered id. Be- once failed.4 See at 95 was, beeper he worked. The there- entered which fore the officers ever Defendant’s fore, home, they they to the of the warrant essential execution knew that had satisfied means of track- provided represented it the sole because to the the surveillance condition sight package after officers lost of ing judge, the the the magistrate which was means anticipated obviously losing judge it. The officers by magistrate which the could deter- ability that, future, to maintain visual surveillance the point there mine some they package planned for over the because to believe that the would be by contingency as evidenced their seek- tapes would be transferred Defendant’s the ing authorizing beep- an order the use of When left work at about home. Defendant er. p.m., backpack and carrying 4:30 a white sack,5 plastic grocery the officers saw neither proper necessity beeper of to the The the package previously the which had contained by the is corroborated execution of n tapes tapes the video nor the themselves. sting operation the manner which the oc- Although the could neither see nor officers pack- Inspector Carr the curred. delivered electronically package, they the fol- track age tapes two video and the hidden un- lowed Defendant to his residence. It is private post Defendant’s office box. beeper to disputed that the officers did observe law Inspector The team of enforce- his pack- carrying Defendant the video then the ment officers watched office age They into his did residence. not know package the moment was box from the deliv- fact, tapes. whether he had the the video up picked ered until Defendant it fifteen that, only thing just the officers knew was later, at minutes about 10:30 a.m. offi- failed, beeper before the loca- followed Defendant visual observa- cers place tion of the was Defendant’s of by tracking package tion and with the employment, any probability if indeed existed place beeper as he walked to his back of magistrate in the affidavits reviewed work, his employment. way On back to De- judge.6 triggered opened package which fendant beeper. the accelerated alarm in the See id. condition, When first surveillance of during Defendant left lunch 49. When failed, package, the warrant could no time, beeper that he had left indicated validly longer beep- be When executed. package place employment. in his longer er died and the could no see judge’s package, determi- Inspector’s testimony from the We know nation that cause would arise suppression hearing that before De- future, upon based the satisfaction of the place employment left his fendant him, represented conditions was null and day beeper stopped functioning had be- void. The officers’ continued surveillance of id. at cause the had died. See 50. batteries package until determined that it that moment until was Inspector From received at the searched package, Defendant the was a asked location the officers had no where the condition essential to the execution of the idea Gendron, contents F.3d at and its were. condition that warrant. 967. This unfulfilled, “package kept [would] under surveil- the procuring condition descriptions interpret courts 4.Because should 5. The record does not indicate whether Defen- brought backpack plastic supporting dant had warrants and their documents in white " Gendron, fashion,” employment day. to his earlier sack 'commonsense' see (citation omitted), at 966 I need not decide momentary lapse whether a of surveillance emphasize nothing reported mag- I mean the failure the surveillance condi- judge istrate indicates that ob- period significant going tion. In this case there was a from his served Defendant mailbox to his taking when the not under of time surveil- home or mail to his home the end of judge. day. promised lance as knowledge executing good and officers had full the execution is in faith when the officer deficiency this when executed the war- knows that the conditions did not occur. The majority’s application of rant. Leon to these facts compounds constitutionally objectionable majority’s that the contention officers by nature of sanctioning these activities im- by had satisfied conditions of the warrant proper police conduct. entering asking Defendant’s and residence Leon, whether the located in proper were the resi- Under test of an officer’s ignores repre- good dence the fact that a condition faith reasonably is “whether a well magistrate judge necessary sented to the and trained officer would have known that proper to the warrant’s execution had al- illegal despite magistrate’s search was ready Inspector been violated. The knew authorization.” 468 U.S. at 922 n. vitality

that the warrant had determining no even before S.Ct. 3405 n. whether an he went to good Defendant’s residence because the officer has acted in in faith accordance met; test, objective surveillance condition had not been this a court should evalu circumstances, id., nothing could breath life into the search war- ate all attendant see probable rant or revive the absence of executing assume that officers have “a support only knowledge that warrant. The means of pro reasonable of what the law satisfying 20,104 the first condition to the warrant hibits.” Id. at 919 n. S.Ct. 3405 n. 20. failed, any had government agent good new information obtained When “a asserts during or observations made magistrate’s faith reliance on a decision to sting operation misappropriated mag- upon issue a the court must focus judge’s probable objective istrate good cause determination. the existence vel non of faith majority’s improper ratification of application.” this at the time of the warrant Ric ciardelli, execution of the warrant authorizes the (citing Malley 998 F.2d at 15-16 v. 335, 344-45, Briggs, transfer of the cause determination 475 U.S. 106 S.Ct. (1986)). executing to the officers based on informa- 89 L.Ed.2d 271 This means that in case, represented magistrate judge. tion not Inspector where Carr was both officer, proceeded procuring executing pre with the absolute for, discretion that planned the Fourth Amendment and scheme application and the of, judge’s probable cause deter- issuance and the execution of the search prevent. self-sustaining mination are intended to See Ric- warrant are not a series of ciardelli, (Torruella, J., independent analyzed 998 F.2d at 20-21 in events but must be context, concurring). totality examining Because the execution was not of the circum Leidner, in accordance with the conditions of the war- stances. See 99 F.3d at rant, Moland, see 996 F.2d at Leon 1429-30. applied prevent suppres-

should not be good-faith exception The Leon does not illegally sion of seized evidence. apply suppression appropri remains an (1) remedy magis in ate four situations: Application of Leon III. The judge issuing trate the warrant was misled affidavit; problem deliberately recklessly The more fundamental here lies false (2) inappropriate application magistrate judge wholly of Leon’s abandoned role; good-faith exception anticipatory judicial to this his or her detached and neutral (3) above, prob- search warrant. As stated on an affidavit “so was based begins lacking lem with an search war- in indicia of cause as to magistrate judge entirely rant which the rest official must render belief its existence unreasonable,” Illinois, cause determination on the ex- 422 U.S. Brown 590, 610-11, pectation condition or conditions 45 L.Ed.2d 416 (4) (1975) (Powell, executing J., concurring part); control of the officer will be satis- facially ... undertaking fied. The officer’s sworn the warrant was “so deficient reasonably he will execute the warrant when he has officers cannot Leon, presume caused or observed the essential conditions it to be valid.” (citations omitted). 923, 104 totally any possibility to occur In all vitiates S.Ct. 3405 Gates, circumstances, 213, 238, reasonably see Illinois v. of these no well 462 U.S. (1983); rely trained officer should on the warrant. L.Ed.2d Leid good-faith ner, (Wood, J., of these limitations on the Several at 1430-31 concur F.3d exception in this Ricciardelli, occurred case. ring); De 998 F.2d at 12-14. correctly argues good-faith fendant that typical This is not Leon situation exception apply affida does not because the procure who where an officer did not a vit’s to establish sufficient failure nexus go it. That is told execute officer between the contraband and the location to charged not antecedent knowl- observable, “readily ... a be searched was edge procurement resulting from the of the [that] non-technieal defect ... should have warrant. Nor is this a situation where the easily experienced post been detected magistrate judge merely misjudged inspector.” Br. at Appellant’s Opening al 12. executing innocently cause and the officer is Inspector only easily definition, not should have misjudgment. By unaware Carr of that case, anticipatory during in a search warrant detected the absence of nexus ev- warrant, knew, eryone, including procuring and execut- execution of the but he or magistrate ing judge, known, officer and the that no nexus exist should have such fully consciously aware that when the applied ed when for the warrant. he search signed, probable warrant was cause did not Inspector in Because Carr was the chief They magistrate exist. all knew that vestigative agent, procurer or case officer judge’s cause determination was warrant, officer, and the he contingent upon the occurrence of future and his team of law enforcement officers are events, in which were known charged knowledge he did with the that of Inspector control Carr. The officers cannot allegations present magistrate or facts reasonably good represent faith that judge showing a between the connection they innocently relied on the place to be searched and the con judge’s probable cause determination be- taining tapes. Inspector video Carr’s tapes lieve that the would be found Defen- only affidavit stated that Defendant had been dant’s residence when fact knew up picking observed on three occasions mail tapes that had one time been located post a place office box downtown Denver and employment at Defendant’s and that designed walking place employment. the condition that back to ensure majority recognizes Inspector’s be found at Defendant’s resi- The Inspector dence had failed. only obliquely Because mentions Defendant’s fully residence, the beeper aware that had died and stating anticipated that “it is that represented the conditions defendant, picking up after from met, judge any argument could not box, post go place will office to his proceeded in good he faith is absurd and employment and after work to his residence.” incredible. Appellant’s App. Nothing affi at 95. any package previously davit traced mail or applying In a for search whether picked up by Defendant at office box anticipatory contemporaneous, every affi- to his Nor did show residence. the affidavit ant-officer worth his or knows her salt that Defendant stored other contraband in present allegations he or she must facts or present his home. Carr did not connection, nexus, which make a a facts, experience training, based on his illegal activity between the contraband or describing the nature of crime or circum and the to be searched. This is viewing pornography stances inherent pecu- new or complexity unsettled of the law suspect’s link the crime or contraband to the anticipatory liar to search warrants. Proba- Wylie, residence. See States v. warrants, United like ble all Cir.1990); Hendricks, F.2d warrants, “undoubtably requires search light publicity of recent nexus between to be [the contraband seized concerning suspected activity employees view or] criminal and the the fact are Corral-Corral, ing pornography to be searched.” their Internet at work on elearly company computers,7 nothing proba pick up there is aware that Defendant could time, suggestion working package any present at ble about the that he did not pornography establishing child to his facts in the affidavit man would take the reliabili- place employment. ty beeper, long beeper home rather than his how function, Inspector’s application beeper expected The for the to or what time Defendant likely pick up package. stated “that cause exists to believe was to The containing majority points package that the the mobile track out that the record does not ing picked up Inspector intentionally will be at state that [Defendant’s device Carr misled post transported magistrate judge. precise office and to other No box] statement premises viewing Appellant’s for and use.” necessary Inspector to show how Carr added). App. (emphasis simply at 83 He did failed to disclose all relevant to facts the video to not connect the residence magistrate judge; the affidavits and the any way. Everything Inspector’s sting operation deficiency. demonstrate this pointed package the fact that affidavit to Contrary government’s to the assertion could be found at Defendant’s of em majority’s opinion, and the it is not more ployment; nothing it indicates that could be logical pick up to infer that Defendant would at his residence. break, package “during his lunch thus government’s The assertion that the affi- allowing beeper enough time to continue experience expertise and relevant ant’s functioning got pro- until off [he] work and judge’s magistrate to the cause de- Ante, ceeded to his residence.” n. at 1208 9. supports my that termination also conclusion The does not mention what time Inspector should be held accountable previously picking Defendant was observed knowledge. Appellee’s his Br. at 11. See up walking mail and back to work. Ac- Inspector previous- The testified that he had record, cording Inspector’s to the team of ly twenty anticipatory executed some ten to began visually enforcement law ob- Appellant’s App. search warrants. See serving just prior office box not to Inspector’s expertise experi- and 59-60. Inspector the lunch hour but as soon as the pornography ence in child cases and ob- package delivered the mailbox taining search warrants morning. Appellant’s App. See at 47-48. general knowledge him shoulders with the Therefore, entirely is it reasonable required that a nexus is between the to Inspector anticipate pack- for the that the and the contraband. It is clear- searched age picked up any could time after ly objectively suggest iro reasonable delivery, nothing supports but in the record good that an officer acted in faith when he pick up the notion that Defendant would knew, known, subjectively or should have package during his lunch break. It is also presented no he facts observations to expect might common sense to that someone magistrate judge support requisite it, open package when he thus receives Ricciardelli, 16; nexus. See 998 F.2d at beeper’s triggering the accelerated alarm Smith, exactly at 244. This is 478 S.E.2d which out mode would wear the batteries type exclusionary rule of misconduct that the rapidly. Inspector more should have prevent. was intended to magistrate judge informed the of the likeli- Although pick up open knew that surveil- hood that Defendant could time, any thereby triggering lance over the was essential to the beeper proper execution of the warrant and was the accelerated alarm of the which days single superhigh- 7. With the advent of the "information lent of over 347 8-hour in a month. Kane, 3; supra Suspended Principal way,” companies are faced with the dilemma Will Duties, J., (Lo employees: their Have Wis Oct. created Internet access for Other St. 12263311; cal), Companies Wayne available in 1997 WL must balance the beneficial access Tompkins, Caught Companies suspect on the Web More data with the detrimental and access to Abuse, inappropriate personal pornography Monitor On-the-Job Internet or other Today, Fla. (Business), reported May Wall Journal that em- available in 1998 WL uses. The Street Westfall, IBM, Apple Computer, College ployees AT & T Bruce Clark Fires Complaints, among Security frequent site, to Pent- Head were the most visitors After Columbian, 18, 1997, magazine’s spending equiva- Apr. WL available in 1997 house Web the affiant comparison from this quick- dent run out more make its batteries both affidavits of facts for utilized one set no evidence the record reflects ly. Because neces- additional facts providing the any way, without beeper malfunctioned judge sary to demonstrate informed the have Inspector Carr should the video probability fair that there is a judge possibility resi- found at Defendant’s tapes would be functioning it stop before beeper could dence.9 home. package to Defendant’s tracked the would affect reasonable scenarios These analysis, I foregoing believe Based on to maintain surveillance ability of the officers exception of good-faith only that not necessary to the package, a condition improperly applied to the not be Leon should Inspector the warrant. execution of but anticipatory search warrant executed “good faith” because may proceed on could not in the ease that the officers also plain- support the warrant was of affidavit and its good faith on the warrant rely in full of all the ly without disclosure submitted Carr, admit- supporting affidavit. reasonably facts. and foreseeable relevant officer, knew or should tedly a well-trained Leon, 468 U.S. at S.Ct. illegal de- that the search was have known

Ricciardelli, F.2d at 16-17. I judge’s authorization. spite the and would or- respectfully dissent therefore recklessness The record reflects additional suppressed. the evidence der the search warrant preparation of discussed, Inspector previously As affidavit. and the the search warrant applied for day. Appellant’s

beeper on the same order record, it reviewing

App. at 78-85. sup- apparent that the affidavit

becomes virtually identical beeper order is

port of the application.8 warrant to the search KANE, Plaintiff-Appellant, E. Gerald the two affida- difference between significant warrant affidavit as follows: The vits is kept under package will be pledges that TRUST CAPITAL GUARDIAN will not be exe- and the warrant surveillance COMPANY, Defendant- by an package until the is “received cuted Appellee. and residence” [Defendant’s] individual residence,” while “brought into the id. No. 97-3030. states, spe- affidavit more beeper order Appeals, Court of required to cifically, device is “[the] Tenth Circuit. is not lost the material ensure identifying perpetrator.” and to assist 15, 1998. June the affidavits dis- Neither of

Id. 81-82. judge any facts

closed to the

showing nexus between video facially It is evi- Defendant’s residence. possibility that similar profes- I have considered the a warrant affidavit offers 8. The search methodology may of viewed as the explana- affidavits description the affiant and an sional officer, experienced, law enforcement suspected efficient the crime Mr. Rowland tion of beeper application contained for the violating. beeper states The electronic really it it needed to because was tracking more than device will be attached the mobile applica- satisfy the search ongoing intended to to an crimi- that is relevant light theory identify suspected I have discounted investigation persons tion. nal magis- present facts to the containing exploi- Inspector’s failure trafficking sexual in materials supporting the video judge a nexus between Using language and trate identical of children. tation Inspector, home. The and Defendant’s describe the organization, both affidavits then expertise reputation, relying perhaps on his sting operation and De- background facts of objec- sparse presented affidavit that could Appellant’s App. at 79- activities. See fendant’s reasonably upon. tively relied 88-96. he left work. The notes after that, removing tapes after from his work- information that Row- the affidavit contained place, tapes Rowland would take the home to pick up practice land’s usual was to his mail home, however, or view store. Rowland’s work, and then walk back to and the affidavit possi- was but one of an otherwise unlimited employed indicated that Rowland was also viewing storage. ble sites The Carr Department of Revenue. The Colorado provided no basis either limit the government asserts that from this informa- possible suggest sites or that Rowland’s tion, “logical inference” was that Rowland likely home was more than the otherwise illegal would not store or view the video possibilities. consequence, endless As a work, tapes at but would instead take the possible inference that Rowland would take tapes video to his home.4 home, itself, tapes in and'of is insufficient provide concluding a substantial basis for making probable In cause deter probable there was cause to believe the con- mination, issuing magistrate may draw traband would be Rowland’s home at the pro reasonable inferences from the material place.5 time the search was to take Gates, application. vided United, cf. Lawson, any Given the absence of facts States Cir.1993) linking the affidavit the contraband to Row (stating determining that in wheth home, probable land’s had no informa support er there is cause to a war determine, rant, tion from which to at the time he issuing magistrate is “entitled to there was reasonable inferences about where evi issued draw likely kept, dence is to be based on the to believe the contraband would be at Row type nature of the evidence and the of of- land’s residence when the search was to take holding supported by arguing supported by prob- that the warrant was 5. In the warrant was cause, cause, agreed government the district court with the able that a also asserts government magistrate may experience that it was "a reasonable inference consider an affiant’s given previous expertise making ... activities that the cause de- observed, termination, might expect officers had one that the and notes the affidavit in this case eventually way training would make and investi- video[s] [their] described Carr’s stay gative experience apartment perma- to be searched and not in the area of child sexual nently exploitation pornography. at the defendant’s of work.” The and child The affida- not, however, any suggesting explained district court further that the vit did that, set out facts experience, rea- based on Carr's there was up pick officers had observed the defendant likely to view son to believe Rowland would be packages, go They back to his office. had also home, than or store such materials his rather They reasonably been where he resided. could viewing storing the materials at another loca- pack- particular infer contents of this Therefore, reject argument. tion. we readily age would not be usable at the defen- government additionally war- dant’s office. And I do not find it to be an asserts the the con- rant affidavit indicated Rowland had been “ob- unreasonable inference assume that routine,” eventually daily pick- tents of the in his which included make served office, mail, way they ing up walking back to their to the defendant’s home where his "driving] likely after could more be viewed than could at to his residence work.” The affidavit, however, Row- the office. in fact stated that Although, government picking up court and land had been observed his mail and as district walking employment, suggest, it was reasonable to infer that Rowland back to his leaving walking illegal tapes at work and to his car at a would not view or store the work, video later given nearby parking particularly fact Rowland lot. The affidavit did not indi- typically employee, drive di- a State the district court did not cate whether Rowland would work, government explained rectly it after nor did indicate address and the has home typically any why logical take home to infer Rowland would take whether Rowland would it was store, private day he had collected that from his home to view or rather than mail taking other location. office box. some

Case Details

Case Name: United States v. James Frederick Rowland

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jun 2, 1998

Citation: 145 F.3d 1194

Docket Number: 96-1512, 97-1016

Court Abbreviation: 10th Cir.