Lead Opinion
Defendants Otha Dennis (“Dennis”) and James Brown, a/k/a Donald Ray Washington (‘Washington”), appeal from their convictions for attempting to possess cocaine with intent to distribute it. Washington and Dennis raise several issues. Both defendants challenge as invalid an anticipatory search warrant authorizing the search of Dennis’s apartment after a controlled delivery of an Express Mail package containing cocaine. Dennis also contends that the initial warrantless seizure of the Express Mail package violated his Fourth Amendment rights and that the government’s pre-trial discovery rule violations warrant a new trial. Washington, meanwhile, contends that the government presented insufficient evidence to support the guilty verdict against him. We affirm the defendants’ convictions on all grounds.
I. Background
On August 10,1995, a United States postal inspector determined that an Express Mail package mailed from Los Angeles and addressed to “Otha Dennies” at Dennis’s residence in Decatur, Illinois matched a narcotics package profile developed by the United States Postal Service. The inspector detained the package and had a trained drug detection dog sniff the package. After the dog signaled that narcotics were in the package, the inspector obtained a search warrant and opened the package. In addition to miscellaneous personal items, the inspector found approximately 16 ounces of eocaine. The inspector replaced a portion of the co-eaine, attached an electronic beeper to the inside of the package, resealed the package and obtained an anticipatory search warrant for the residence to which the package was addressed.
On the next day, the postal inspector, dressed as a mail carrier, delivered the package. When the inspector arrived at the Decatur address, he encountered Dennis and Washington sitting on the front porch. After the inspector announced that he had an Express Mail package for Dennis, Dennis signed for' the package and placed it on the corner of the porch. After surveying the area, Dennis picked up the package, and he and Washington went into the first floor apartment. After the defendants entered the apartment, the electronic beeper inside the package sounded, signaling that someone had opened the package.
The police entered the first floor apartment to execute the search warrant and apprehended Dennis in the bathroom while he was attempting to flush down the toilet a pair of socks that had been in the box. The police also found a tennis shoe next to the toilet. The cocaine had been hidden in socks stuffed in one of a pair of tennis shoes in the box. The police found a piece of paper containing the tracking number of the Express Mail package in Dennis’s wallet. In addition to these items, the police recovered baggies from the apartment. However, the police did not discover any other narcotics or indi-cia of narcotics trafficking, such as scales or cash, inside the residence. The police apprehended Washington as he attempted to flee from the apartment. When they stopped Washington, he identified himself as “James Brown” and produced a false California I.D. listing his residence as the same address used as the return address on the package. At the time of his arrest, Washington also had several business cards from Los Angeles and a piece of paper containing Dennis’s address in his wallet.
Washington and Dennis were indicted on one count of attempt to possess cocaine with intent to distribute in violation of 21 U.S.C. sec.sec. 841 and 846. After the district court
II. Discussion
A. Anticipatory Search Warrant
After discovering the cocaine in the Express Mail package but before delivering the package, the postal inspector obtained an anticipatory warrant to search the residence to which the package had been addressed. In the warrant application and supporting affidavit, the inspector stated that he discovered the package in the mail on its way to the residence to be searched and that he would perform a controlled delivery of the package before authorities executed the warrant. Additionally, because the residence to which the package was addressed was a two-story house consisting of two independent apartments, the warrant application and affidavit sought permission to search one of the apartments. However, . the application sought permission to determine which apartment would be searched at the time of the controlled delivery, based upon who accepted the package and into which apartment it was taken. Specifically, the affidavit requested:
... permission to search the first floor apartment if and only if an occupant of that apartment accepts delivery or opens the package or the second floor apartment if and only if an occupant of the second floor accepts delivery or opens the package.
Based upon this affidavit and application, the district court issued an anticipatory search warrant. Washington and Dennis contend that the warrant was invalid for two reasons. First, they argue that it neither specified the conditions precedent to execution on its face, nor attached the warrant affidavit containing those conditions to the warrant. Second, they contend that the warrant was not supported by probable cause because no independent nexus between the package and the defendants or the place to be searched existed.
We review legal determinations concerning the validity of a warrant and probable cause determinations de novo. Ornelas v. United States, — U.S. -, -,
1. Conditions Precedent
Anticipatory warrants differ from other search warrants in that they are not supported by probable cause to believe that contraband exists at the premises to be searched at the time they are issued. In fact, a court issues an anticipatory warrant with the knowledge that contraband does not presently exist at the location to be searched. See Leidner,
Washington and Dennis contend that this cautionary language obligates the district court to list all conditions precedent to the execution of an anticipatory warrant on
We see no reason to depart from the Second Circuit’s interpretation of its own language. Indeed, our reasoning in an analogous Fourth Amendment case compels the same result. In United States v. Jones,
Here, the warrant application and affidavit contained satisfactory conditions. The face of the warrant stated that execution of the warrant was subject to the conditions stated in the affidavit.
2. Nexus
As we have previously stated, because the contraband is not presently located at the place to be searched at the time an anticipatory warrant is issued and because probable cause depends on contingent future events, anticipatory warrants present greater potential for abuse than other warrants. Most notably, the government or a third party, acting either intentionally or accidentally, could mail a controlled substance to a residence to create probable cause to search the premises where it otherwise would not exist.
Washington and Dennis argue that the government failed to establish that the Express Mail package was on a sure course to Dennis’s apartment because the government established only that a package containing contraband was mailed to the residence. They reason that that showing is insufficient because the government must establish either some connection between the residence to be searched and the package independent of the government-controlled delivery or some connection between the defendants and the package. We have not decided whether placing a package in the mail satisfies the sure course requirement. However, at least where the anticipatory warrant authorizes a search for and seizure of only the package containing the contraband, some circuits have held that placing contraband in the mail satisfies the sure course requirement. E.g. Dornhofer,
Even if we were to adopt the latter approach, the warrant issued in this action would be valid. In both Garcia and Lawson, the courts upheld the warrants at issue because additional facts in the supporting affidavits gave rise to probable cause to search the residences. For example, in Garcia the court noted that someone had provided the drug couriers with the telephone number of the apartment to be searched before police stopped the couriers, that one of the couriers had delivered drugs to the residence in the past and that police had observed at least one person suspected of drug activity enter and leave the residence.
Here, although Washington and Dennis maintain that the fact that the Express Mail package was mailed to the Decatur residence is the only fact in the supporting affidavit establishing probable cause, additional facts in the supporting affidavit also support a finding of probable cause. For example, the postal inspector testified that based upon his experience and drug trafficking intelligence he knew that drug traffickers were likely to use priority and Express Mail to ship narcotics. More importantly, he stated that he found sixteen ounces of cocaine in the package — a quantity of cocaine which like the six ounces in Lawson is too great an amount to be sent on a whim. Finally, he stated that investigators had connected Dennis to nar
Moreover, we recognized in Leidner that all types of government-controlled deliveries are more likely to reach their destinations than other types of deliveries and that, consequently, a magistrate may conduct a lesser inquiry into the sure course requirement when a request for an anticipatory warrant is based upon a government-controlled delivery. Leidner,
In an effort to sidestep this result, Washington and Dennis apparently argue that the government must establish a connection between the searched premises and the contraband which existed prior to the controlled delivery. For example, Dennis suggests a showing that he or one of his agents mailed the package in Los Angeles. However, we implicitly rejected this argument in Leidner.
B. Dennis’s Claims
1. Warrantless Stop
The postal inspector initially detained the Express Mail package and subjected it to a sniff by a drug detection dog because it possessed several characteristics which met the U.S. Postal Service’s narcotics package profile and which based upon his own experience were consistent with a package containing narcotics. Dennis contends that this initial warrantless detention violated his Fourth Amendment rights. The Supreme Court has recognized that individuals have a Fourth Amendment right to be free from unreasonable searches and seizures of items they place in the mail. United States v. Van Leeuwen,
We review a determination of reasonable suspicion de novo. Ornelas v. United States, — U.S. -, -,
However, the profile itself is irrelevant to a reasonable suspicion determination. The mere fact that certain characteristics that a law enforcement officer observes fit a profile will not establish reasonable suspicion. United States v. Hanson,
Here, the postal inspector stated that the package aroused his suspicion because it was heavily taped, had been sent from a private person to another private person, had been mailed from Los Angeles, a city known to be a source city for narcotics distribution, and had been mailed from a zip code different than the zip code listed in the return address. The postal inspector explained that based on his five years of experience as a narcotics investigator and based upon the narcotics package profile, these factors were consistent with characteristics of other packages found to contain contraband. For example, he explained that because of its high cost, only about five percent of all Express Mail is personal correspondence and that because of its speed and reliability and because the postal service provides a free telephone tracking service, drug traffickers frequently use the service to send personal correspondence containing contraband. Thus, he concluded that personal correspondence sent via Express Mail is likely to contain contraband. Under these circumstances, the postal inspector’s suspicion was reasonable and justified detaining the Express Mail package. See United States v. Lux,
Dennis also contends that the factors which the postal inspector articulated are insufficient to arouse reasonable suspicion because each of the factors is consistent with packages which do not contain contraband. However, in certain circumstances wholly lawful conduct may justify an officer’s suspicion that criminal activity is afoot. Sokolow,
At some point in time, however, a detention of mail will extend from a stop to a seizure requiring probable cause to support it rather than mere reasonable suspicion. See Sharpe,
Here, the record does not clearly reveal when the package was placed in the mail. (A photocopy of the Express Mail label appears to be postmarked August 9,1995.) However, the record clearly shows that the postal inspector discovered the Express Mail package in the mail and detained it at some time on August 10, 1995. By 6:05 p.m. on that same day, the inspector had completed the canine sniff and obtained a search warrant to open the package. Additionally, the package appears to have been delivered on time, and the record indicates that the postal inspector was diligent in his investigation. Thus, any detention was less than forty-eight hours and lasted only as long as necessary to subject the package to a canine sniff. As such, the postal inspector’s reasonable suspicion justified the stop, and the search comported with the standards set forth in Van Leeuwen.
2. Discovery Rule Violations
In between Dennis’s trial and Washington’s trial, the government obtained the results of a fingerprint analysis which found both Washington’s and Dennis’s fingerprints on the outside of the Express Mail package. The government did not learn of these test results until after Dennis’s trial. Consequently, the government failed to disclose these results to Dennis before trial but also necessarily did not use this evidence in its
Rule 16 provides that a court may, but is not required to, impose sanctions against a party who violates its disclosure requirements. United States v. Jackson,
We fail to see how the fingerprint evidence would have helped Dennis, and the government did not use the evidence in its case. Thus, we are uncertain that the government violated Rule 16. However, the government has conceded that it violated the rule. Accordingly, we will analyze whether the district court abused its discretion in refusing to sanction the government. Because neither party learned about the fingerprint evidence ■until after the trial, the only sanction available to the district court to remedy the violation was a new trial. However, the district court refused to impose this sanction, finding that in light of the “overwhelming” evidence of guilt, the fingerprint evidence would not have affected the outcome of the case. In reaching this holding, the court noted that a videotape entered into evidence showed Dennis receiving the package, putting it down while he surveyed the area to determine if any police officers were present and picking up the package and bringing it into the apartment. The court also referred to testimony that Dennis was attempting to flush the cocaine down the toilet at the time the police apprehended him and to the fact that Dennis’s fingerprints were on the box along with Washington’s. In light of this evidence, we agree with the district court that the fingerprint evidence would not have affected the outcome of the trial and that, accordingly, Dennis was not prejudiced by the government’s failure to disclose it to him. Because Dennis received a fair trial, the district court did not abuse its discretion in refusing to impose sanctions, and a new trial is not warranted.
C. Washington’s Claim
Washington argues that the government presented insufficient evidence at trial to sustain the guilty verdict against him. In challenging the sufficiency of the evidence, Washington must overcome a formidable hurdle. United States v. Crowder,
A jury convicted Washington of attempting to possess cocaine with the intent to distribute it. This charge required the government to prove that Washington acted with specific intent to commit the underlying offense and that Washington took a substantial step towards committing the underlying offense. United States v. Cea,
Washington maintains that Dennis’s testimony was “vague, waffling, and constantly impeached” and, therefore, is insufficient to sustain the verdict. (Washington’s Br. at 13-14). He reasons that without Dennis’s testimony the government presented no evidence from which a jury could find beyond a reasonable doubt that Washington took any substantial step toward possessing cocaine. Even if we were to agree with Washington that the government presented no other sufficient evidence, we may not discount Dennis’s testimony. Absent extraordinary circumstances, we cannot reevaluate a witness’s testimony to determine its credibility. Crowder,
Moreover, in arguing that the government presented no sufficient evidence aside from Dennis’s testimony, Washington discounts the postal inspector’s testimony that Washington was present at the apartment when the box was delivered and the I.D. and business cards which were admitted into evidence. While conceding that these items “suggest[ ] the possibility of his guilt,” Washington maintains that this evidence is insufficient to sustain the verdict because “other explanations suggesting innocence are plausible.” (Washington’s Br. at 13). However, the government need not present evidence that excludes every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt. The evidence which the government presented to the jury met this burden. Thus, we affirm Washington’s conviction.
III. Conclusion
Both defendants were well represented, but for the foregoing reasons, the convictions of Dennis and Washington must be AfFIRMED.
Notes
. The anticipatory warrant states:
Note first floor apartment or second floor apartment depending on conditions being met which are expressed in the application.
. As Judge Diane P. Wood's concurring opinion in Leidner demonstrates, even if we required a preexisting nexus as Washington and Dennis urge, the warrant issued in this case would be valid. In her concurrence, Judge Wood stated that she would require a showing of some preexisting nexus between the contraband and the place to be searched that it is not wholly within the government's control.
. Here, the postal inspector subjected the Express Mail package to a drug dog sniff as well as detaining it. However, exposure to a trained canine does not constitute a search within the meaning of the Fourth Amendment. United. States v. Place,
. Because the government did not obtain the information until the day of trial, the government also refrained from presenting this evidence at Washington's trial.
Concurrence Opinion
concurring in part and dissenting in part.
I join in the affirmance of the conviction of defendant James Brown, a/k/a Donald Ray Washington. The court correctly concludes that his contentions have no merit. I respectfully dissent, however, from the majority’s affirmance of defendant Otha Dennis’ conviction because, on this record, the authorities lacked reasonable suspicion to detain the mailed package that led to his conviction.
In this case, Postal Inspector Moreno said that the package met four of the drug package profile’s characteristics: The package was mailed (1) from Los Angeles, California, (2) by express mail, individual to individual, (3) heavily taped, and (4) from a zip code different from that of the return address. Although other permutations of the profile’s factors might well render a package suspicious, the combination of these four factors produces a completely unremarkable situation, one that would surely include “a very large category of presumably innocent” packages. Reid,
To begin with, the City of Los Angeles had just under 3.5 million inhabitants in 1994 (one year before the seizure of Mr. Dennis’ package). U.S. Bureau of the Census, Statistical Abstract of the United States: 1996, at 45. The population figure balloons to over 15 million if one includes the inhabitants residing in the surrounding metropolitan area. Id. at 41. Although Inspector Moreno could not provide precise numbers, he guessed that probably hundreds of thousands of parcels are sent through the express mail system daily. In fact, in 1995, 56.7 million pieces of express mail went through the postal system. U.S. Postal Service, Annual Report of the Postmaster General: 1995, at 39. If we assume that 5.5% of express mail packages are sent individual to individual,
The zip code factor adds nothing of value to the mix. Los Angeles was assigned 101 zip codes for possible use in 1994, see 2 U.S. Postal Service, National Five-Digit ZIP Code and Post Office Directory: 1995, at 6-43, a number which does not include the numbers assigned to such nearby areas as, for example, Pasadena and Van Nuys. The package in this case was mailed from Inglewood, California-assigned 13 zip code numbers itself — and contained a Los Ange-les return address. It should not raise an eyebrow that a citizen living in Los Angeles
Also disturbing is the high correlation between the zip code factor and the “source” city factor. It turns out that the Nation’s “source” cities, like Los Angeles, are also the Nation’s largest cities; they are by necessity covered by many zip codes, and their residents are therefore more likely to mail from a zip code different from that of their respective homes. Indeed, in some very large cities, it may be downright unlikely that the originating and return address zip codes would match. See United States v. Ornelas-Ledesma,
I turn, then, to whether the “heavy” taping of the package adds enough to sustain this seizure as one based on “particularized” suspicion. Common sense says not. Taping is simply indicative that the sender wants to secure the package’s contents, whether they be dishes or drugs. Indeed, a mother is likely to tape the seams of a “care package” to ensure that her child’s cookies arrive fresh to the college dormitory. There is no indication that the taping was so excessive as to violate the postal regulations; indeed, the package was accepted for mailing.
In sum, these four particular profile characteristics are innocent when considered independently and innocent when combined. Reasonable suspicion is not a numbers game; the inquiry must turn on whether the sum of the articulated facts is qualitatively significant.
The government tries to shore up its case with the affidavit of the postal inspector purporting to explain the significance of the profile’s factors. The government also reminds us that we must “give due weight to inferences drawn from [historical] facts by ... local law enforcement officers.” Ornelas, — U.S. at -,
Given the state of the record in this case, the inferences drawn by Inspector Moreno ought to be assessed with caution. The main support for his inferences is contained in two pages of an affidavit. This affidavit is con-clusory in nature and reads more like an advertisement for the Postal Service than a statement of empirical fact. It tells us, for example, that express mail is favored by drug dealers because of the “speed, reliability, and low cost of this service.” We are also told, in some contrast, that individuals (as opposed to corporations) rarely use express mail because it is too expensive. Neither of these propositions is supported by data or any other citation to authority. This lack of support is especially important because the affidavit is couched in terms of the collective experience of the Postal Service, not in terms of Inspector Moreno’s particularized experience with packages that have the four characteristics of Mr. Dennis’. Indeed, Inspector Moreno focuses on the profile and on characteristics that are not involved in this case. For example, he notes that express mail is rarely used on a “consistent basis” for personal correspondence. Notably, although it has been considered suspicious in some eases, see swpm note 2, for a defendant to receive several express mail packages over a short time, when Mr. Dennis’ package was detained, the inspector did not know, as far as the record reveals, of any other packages being involved in the case. His statement therefore is without relevance to the case before us. Inspector Moreno also says that drug dealers prefer express mail because they can utilize an 800 number to confirm the whereabouts of their packages. No data support this assertion and Inspector Moreno offers no basis for his having a view of the nationwide experience of the Postal Service. Moreover, there is no particularized indication that Mr. Dennis’ modus operandi included use of the 800 number. On the key point of the nature of the package’s taping, Inspector Moreno merely states that Mr. Dennis’ package was heavily taped. He carefully asserts that this situation is “consistent” with — not characteristic of — narcotics packages.
In short, the affidavit gives the judicial officer no real sense of the frequency with which express mail is used by drug dealers. Five to six percent of express mail packages^ — about 3 million packages in 1995 — are mailed from an individual to an individual. But what percentage of those contain drugs? How many personal express mail packages are mailed from California? What percentage of the packages are heavily taped? What does the eonclusory characterization “heavy taping” mean? What is Inspector Moreno’s experience with these four seemingly innocuous factors? How many innocent packages have these four characteristics? How many guilty packages have them? What is the error rate?
There are, no doubt, particular permutations of the profile’s factors that amount to “a particularized and objective basis for suspecting the particular [package] stopped.” Cortez,
We cannot accept this assertion on faith alone. If the State is to argue that this combination of attributes is of special significance when viewed through the collective wisdom of the State police, it must provide an objective basis for its determination. In this ease, however, the State has not disclosed any underlying statistics or data to explain why the combination of circumstances at issue here produces reasonable suspicion. No attempt was made to explain how this profile was formulated, or even whether empirical evidence which might lead to its development exists.
Here, ... the officer did not attempt to offer his own experience or training as support for the conclusion that the characteristics of the local profile were related to the activities of a drug courier. A “profile” suggests that others, based upon their experience or collected empirical data, have made those conclusions. Where the characteristics of the profile suggest the conclusion for which the profile is offered as a matter of common knowledge and experience, the Court is able to test the validity of the inference. Where, as here, the aggregate of facts does not as a matter of common knowledge permit a reasonable suspicion that criminal activity is afoot, but requires explanation by reason of experience or empirical data that the witness advancing the conclusion does not have, something more will be required. Otherwise, the courts would be required to place blind faith in conclusions of absent law enforcement officials whose hypotheses or*540 statistical foundations cannot be tested for accuracy.
Derricott v. State,
The government in this case offered no testimony from which to assess the effectiveness of this profile, especially in a situation in which only these four factors are present. Accordingly, in my view, it did not meet its burden of proving that a reasonable postal inspector would have suspected Mr. Dennis’ package of containing contraband.
Recently, the Supreme Court cautioned against making exceptions to the Fourth Amendment that are tailored to the drug culture. See Richards v. Wisconsin, — U.S. -,-& n. 4,
Today, despite the Supreme Court’s admonition, the court interprets the requirements of the Fourth Amendment to meet the exigencies of the current drug problem that plagues the Nation. Yet the rules that we now formulate to expedite the eradication of that scourge also will set the vectors of our jurisprudence for other situations and, indeed, for other times. The “hydraulic pressure” of which Justice Holmes spoke in Northern Securities Co. v. United States,
. In his affidavit, Inspector Moreno wrote that postal records indicate that about 5% of express mail correspondence is personal. At trial he estimated the correct percentage was 6%.
. The majority favors a quantitative approach. It cites United States v. Lux,
The vast majority of cases deals with permutations of the profile's attributes that are more convincing than the permutation we have in our case. See, e.g., United States v. Van Leeuwen,
. This passage from Ornelas, read expansively, is fast becoming a major threat to Ornelas’ basic holding. Unless this development is scrutinized consistently by the Supreme Court, it may so
. Inspector Moreno informs us that California has acquired the devilish distinction of being labeled a "source” state. The criteria employed to bestow that title — or that of "destination” city or region — on a municipality or a region are vague. Indeed, at trial, Inspector Moreno testified that the entire West Coast qualifies, as well as many of the country's largest and most populous states: He volunteered as examples Texas, Florida, Arizona, and parts of the State of Washington. When specifically questioned about New York, the inspector admitted that state's inclusion into the club as well. We, see Ornelas-Ledesma,
. There is some evidence, albeit anecdotal, that the profile's error rate is quite high. In United States v. Hill,
. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a), at 143 (3d ed.1996) (opining that the Cortez Court properly relied on the inferences of trained law enforcement personnel to find a particularized basis for a stop because “the inferences and deductions had been fully explained at the suppression hearing”).
. Cf. United States v. Ho,