United States v. Otha Dennis and James Brown, A/K/A Donald Ray Washington

sitting porch. the front After WOOD, Jr., Before RIPPLE and inspector the announced that he had Ex- KANNE, Judges. Circuit Dennis, press package Mail Dennis signed package placed for' the and it on the WOOD, Jr., HARLINGTON Circuit corner porch. After surveying the Judge. area, picked up Dennis package, the and he (“Dennis”) Defendants Otha Dennis and Washington and went into the first floor Brown, Ray Washington James Donald a/k/a apartment. After the defendants entered (‘Washington”), appeal from their convic- apartment, the beeper electronic inside attempting possess tions cocaine sounded, package signaling that someone it. Washington intent distribute and opened package. had Dennis raise several issues. Both defen- police The apart- entered the first floor challenge dants anticipatory as invalid an ment to execute the search ap- warrant and search authorizing warrant search prehended in Dennis the bathroom while he apartment Dennis’s after a controlled deliv- attempting to flush down the a pair toilet ery Express of an containing Mail of socks that had in police been the box. The cocaine. Dennis also contends that the ini- also found a tennis next shoe to the toilet. tial Express warrantless seizure Mail The cocaine had been hidden in socks stuffed package violated his Fourth Amendment pair in one of a of tennis shoes the box. rights government’s and that pre-trial police piece paper found containing discovery rule violations warrant a trial. new tracking number of the Express Mail meanwhile, Washington, contends that Dennis’s wallet. In addition to government presented insufficient evidence items, police these baggies recovered support guilty against verdict him. apartment. However, police from We affirm the defendants’ on all convictions did not discover other narcotics indi- grounds. cia of trafficking, narcotics such as scales or cash, police appre- inside the residence. The Background I. Washington attempted hended as he to flee 10,1995, August postal On United States apartment. they stopped from the When inspector Express determined that an Mail Washington, he identified himself as “James Angeles mailed from Los ad- produced Brown” and a false California I.D. dressed “Otha Dennies” at resi- Dennis’s listing his residence as the same address Decatur, dence in Illinois matched a narcotics used package. return address on the package profile developed by the United arrest, Washington At the time of his inspector States Postal Service. The de- had several from Angeles business cards Los tained the and had a trained piece paper containing Dennis’s dog package. detection sniff the After the address in his wallet. dog signaled that narcotics were age, inspector obtained a search warrant and Dennis were indicted on opened package. attempt possess addition to mis- one count of cocaine with items, personal cellaneous inspector intent to distribute violation of 21 U.S.C. approximately found 16 ounces of eocaine. sec.sec. 841 and 846. After the district court legal con We review determinations suppress, the district motions denied two validity proba cerning trial. of a warrant and eases for the defendants’ court severed trials, Washington Den- de novo. Ornelas separate jury cause determinations At ble — convicted, States, -, -, court the district v. United U.S. nis were (1996); seventy-eight 134 L.Ed.2d 911 defendant sentenced each super- Leidner, years three imprisonment and months — -, denied, (7th Cir.1996), vised release. cert. (1997); L.Ed.2d 542 II. Discussion Adames, Cir.1995). Anticipatory Search Warrant A. Ex- discovering cocaine in the After 1. Conditions Precedent delivering the

press package but before Mail inspector package, obtained Anticipatory differ warrants residence anticipatory to search the warrant they warrants in that other search been addressed. package had to which the by probable cause to supported believe supporting application and In the warrant premises to be contraband exists at affidavit, that he discov- stated they are issued. searched at the time way to mail on its ered fact, anticipatory warrant court issues an and that he the residence to be searched not knowledge the that contraband does with delivery perform a controlled would at the to searched. presently exist location be the war- authorities executed before However, Leidner, 99 F.3d at See Additionally, the to rant. because residence anticipatory war the time a court issues an a two- was addressed was the rant, probable to cause exists believe independent story consisting of two house premises at the to contraband will be located application affi- the warrant and apartments, transpire. after certain events be searched sought permission to search one davit execu precedent Id. conditions However, . application apartments. integral anticipatory tion of an warrant permission apart- sought to determine which validity. ex its As the Circuit Second at the time of the ment would be searched uphold an antici plained, probable cause to delivery, upon accepted based who controlled govern patory warrant exists when a search apartment it was and into which independent presents ment official evidence requested: affidavit Specifically, taken. will, delivery or indicating that of contraband permission first floor ... to search the to, likely magistrate occur and when the only occupant and an apartment if if delivery. conditions the warrant on opens accepts delivery or apartment Garcia, apartment or the second floor (2d Cir.1989). Garcia, a seminal case on occupant only an of the second if if warrants, recog anticipatory the court also opens accepts delivery or floor on future nized that warrants conditioned age. present for As potential some abuse. events application, upon Based this affidavit such, magistrate cautioned that a the court anticipatory issued an search district court pro issuing anticipatory warrant should an Washington and Dennis contend warrant. listing against “by premature tect execution reasons. warrant was invalid two governing the the warrant conditions First, they argue specified that it neither clear, nar explicit, which are execution face, its precedent conditions to execution on misunderstanding rowly drawn so as avoid containing nor attached the warrant affidavit by government agents.” Id. manipulation Second, those conditions the warrant. at 703-04. sup- they contend that the warrant was Dennis contend that no inde- ported by probable cause because obligates cautionary language the dis package and pendent nexus between the precedent list all conditions place exist- trict court to defendants or the searched anticipatory an on the execution of warrant ed. case, anticipa face of the warrant and that the relying on uphold affidavit tory warrant issued this case is invalid the warrant would serve both pur- those it failed to on because list these conditions its poses. Likewise, anticipatory Id. warrants However, face. the Second Circuit has ex protect subjects balance the need pressly rejected argument. searches from the abuses of warrantless (2d Moetamedi, States v. (under exigent searches circumstances Cir.1995). Moetamedi, the court held that exception) practical needs of law anticipatory warrant need not state its Leidner, personnel. enforcement See precedent face the execu conditions its Thus, relying F.3d at 1425-26. on an affida- “clear, tion if the warrant affidavit contains vit uphold anticipatory warrant under explicit narrowly drawn” conditions and circumstances similar to Jones would like- executing actually satisfy officers those promote wise purposes behind the executing conditions before the warrant. Id Fourth Amendment. . at 229. court reasoned that conditions Here, the application warrant and affidavit precedent appear need not on the face of a satisfactory contained conditions. The face warrant itself the affidavit because contain of the warrant stated execution of the ing the conditions will contain a sworn subject warrant was to the conditions stated representation that the warrant will not be in the affidavit.1 This evidences that executed until the is delivered and issuing judge read and considered the affida- accepted. (citing Tag United States v. vit issuing the warrant. The record also (8th Cir.1993)). bering, 985 F.2d establishes that complied the officers though a copy Even of the warrant affidavit precedent conditions in executing the was not attached to the warrant at issue in example, warrant. For Moetamedi, upheld the court the warrant executing testified officers searched satisfactory the affidavit contained apartment first floor and conducted conditions, issuing magistrate accepted that search accepted delivery after Dennis executing those conditions and the officers package, the Dennis and took the warrant satisfied those conditions. package the apartment the into first floor depart We see no reason from to the Sec beeper package the electronic in the interpretation ond Circuit’s its lan own sounded, indicating that opened someone had Indeed, guage. our reasoning an analo package Thus, the apartment. inside the the gous Fourth Amendment compels case the anticipatory warrant though was valid even Jones, result. same United States v. 54 did list precedent not the to conditions execu- (7th Cir.), F.3d cert. de copy tion append on its face or a - nied, -, 133 supporting affidavit. (1995), L.Ed.2d 186 we held that an affidavit supplying requisite specificity needed to 2. Nexus uphold challenged a warrant need not be stated, previously As we have physically appended explic to the warrant or presently the contraband located at the itly incorporated by reference where the place be anticipa to searched at the time an magistrate issuing considered the affidavit tory probable warrant is issued and because complied the warrant and the officers events, depends contingent cause on executing future affidavit when the warrant. reaching anticipatory present greater poten holding, warrants recognized this that the tial particularity requirement be abuse than other warrants. Most applied must notably, protects subject party, a manner or that of a a third potential acting intentionally accidentally, search from the either general abuses recognizing warrant could while the realistic needs controlled to a substance resi of law probable enforcement authorities. Id. at 1291. dence to create search cause to that premises concluded under the circumstances where otherwise would not exist. anticipatory apartment warrant states: Note first floor apartment depending or second floor being on conditions met expressed application. which are in the

530 Lawson, (Diane Wood, 704; Leidner, at v. 999 P. F.2d United States 99 at 1430-31 F.3d Cir.1993). (6th Rey, J., v. These courts concurring); United States Cir.1991) (6th J., (Keith, 1217, 1224-25 that authorities must demonstrate F.2d reason concurring). prevent indicating to law enforce that the some other circumstances creating the circum package ment authorities arrive sender intended the to at probable cause to give rise to stances which to residence to be searched and intended search, probable Circuit held Ninth recipient. to the actual send the anticipatory warrant support cause adopt ap- Even if the latter we were be unless a sufficient nexus does not exist in this proach, the warrant issued action place to be parcel tween Lawson, valid. In Garcia and would be both Hendricks, v. searched exists. upheld at be- the courts the warrants issue Cir.1984). n. F.2d supporting in the affi- cause additional facts explained example, Hendricks court For gave probable cause to davits rise search on a showing that contraband was example, in the residences. For Garcia to the destination to “sure course” provided court noted someone had nex would demonstrate sufficient searched telephone drug couriers with the number of circuits, including this Id. at 655. Other us. apartment police be searched before circuit, adopted have “sure course” re couriers, stopped of the couriers that one Leidner, quirement. E.g. at 1427- F.3d drugs to the in the had delivered residence Ricciardelli, 28; F.2d police at past had observed least (1st Cir.1993); United States Dornhof person suspected activity one enter (4th Cir.1988). er, F.2d and leave the residence. 882 F.2d argue that Washington and Dennis Lawson, Likewise, in the court held that all government failed establish that the of the information contained the affidavit Express Mail was on sure course reasonably person “could lead a to believe govern apartment because the Dennis’s experienced that an trafficker in narcotics con established very likely the package” sent and that “it was resi taining contraband was mailed to the address the one showing They reason that dence. at which it was intended arrive.” must es insufficient because reaching holding, 988. In court either connection tablish some between noted that the amount of cocaine be searched residence large ounces—was too an amount to —six government-controlled independent be sent on a whim and that the cocaine had delivery de or some connection between the attempt in been concealed an to avoid detec- package. We have not fendants and the tion. Id. placing in the package decided whether a Here, although Washington and Dennis requirement. satisfies the sure course mail Express maintain that the that fact Mail However, anticipatory at least where the package was mailed Decatur residence a seizure warrant authorizes search and supporting only fact in the affidavit containing the package of the contra cause, establishing probable additional facts band, placing held that some circuits have supporting support in the a affidavit also in mail sure contraband satisfies the finding probable example, the of cause. For requirement. E.g. Dornhofer, course upon postal inspector testified his Goodwin, based 1198; F.2d at States v. experience drug trafficking intelligence Cir.1988); United States F.2d drug (9th Cir.1986). likely he knew that were to Hale, 784 F.2d traffickers priority Express ship Mail use to narcot- hand, recog other other circuits have On the importantly, he ics. More stated that he a a authorizes nized where warrant in the found sixteen ounces of cocaine drug paraphernalia search for well as contraband, of like simply quantity cocaine which the six package containing the —a great ounces in Lawson is too an amount to discovering package a has mailed been Finally, a stated that may insuf be sent on whim. he the residence to be searched Garcia, investigators had connected Dennis nar- satisfy probable ficient to cause. past. in cotics activities based band was on a sure course to the residence affidavit, upon all of the information before law intercept- enforcement authorities reasonably the district court could conclude Otherwise, ed it. Id. at 1429 n. 7. the defen- drug an experienced trafficker sent the reasoned, dant any- the courier could name package package and that the address on the one punishment. effort to lessen his one which was intended to Id. at 1429. We construed this as a chal- arrive. lenge to reliability rejected the courier’s it, adopting “totality instead a

Moreover, of the circum- recognized in Leidner we stances” approach similar to that which types government-controlled all deliveries likely Lawson and employed. more Garcia courts reach their Id. destinations that, other 1429-30. types totality than of deliveries and We found that the con- magistrate sequently, may a supported finding conduct a lesser circumstances Leidner a inquiry requirement probable into sure course particular, cause. we noted request a anticipatory when warrant that authorities had corroborated certain upon government-controlled delivery. based a portions of the allegations, courier’s Leidner, Thus, in 99 F.3d at 1429. a case local officer knew the courier and considered this, nothing such as where in the record him rehable that the courier made his might indicates that the contraband not have against statements penal his interest. Id. at been delivered the residence to be above, 1429-30. As we have stated the total- searched, simply discovering ity here, likewise, sup- circumstances placing stream and it back into the ports a finding probable cause.2 controlled-delivery mail stream effect satisfy requirement. should the sure course B. Dennis’s Claims result, sidestep In an effort Wash- Stop 1. Warrantless ington apparently argue and Dennis that the postal inspector initially The detained government must establish be- connection Express subjected Mail it to premises tween the searched and the contra- a sniff detection dog prior band existed to the controlled possessed several characteristics which met delivery. example, suggests For Dennis the U.S. Postal Service’s narcotics showing that he or agents one his mailed profile upon and which own experi based However, Angeles. in Los ence were consistent with a contain implicitly rejected argument in Leidner. ing narcotics. Dennis contends this ini There, at 1429-30. law enforcement tial warrantless detention violated his Fourth pounds marijua- authorities discovered rights. Supreme Amendment Court has na a drug during car courier’s a traffic recognized that individuals have Fourth stop. The courier person then identified the right Amendment to be free from delivering unreason whom he was the narcotics and they able searches and agreed cooperate delivery. in a seizures of items controlled place in Id. Authorities the mail. anticipatory obtained an Van 249, Leeuwen, 1029, search warrant for 397 U.S. 90 S.Ct. the residence which the (1970). id., However, marijuana delivered, 25 was to be L.Ed.2d 282 if law defendant, recipient marijuana, possess of the enforcement authorities reasonable warrant, challenged contending suspicion package that to believe that a contains anticipatory contraband, they may warrant is invalid package unless the detain government demonstrates that length eontra- a reasonable of time investigat- while Judge concurring opinion government's (Di- 2. As Diane P. Wood's 99 at control. F.3d 1431 demonstrates, Wood, J., However, required concurring). in Leidner even if we a P. ane she also preexisting nexus as and appearing Dennis indicated that an address on the urge, intercepted warrant issued this case would be at the time the authorities it concurrence, Here, Judge valid. satisfy requirement. her Wood stated would Id. at require she showing pre- postal would a some time that the authorities discovered the existing Express package, already nexus between the contraband and the Mail was it addressed place wholly to be searched is not within to the Decatur residence. 532 (1989). Instead, 252-53, at 104 1 in re- L.Ed.2d Id. at 90 S.Ct.

ing package. viewing suspicion determina- Thus, reasonable may uphold detention we 1032-33. tion, require law enforcement authorities we reasonably sus postal inspector if here specific characteristics ex- to articulate package contra contained pected that object person be de- or hibited for a reason if the detention lasted band and suspi- aroused the authorities’ tained which Mayomi, v. States able duration. United us, particular in the ease before and cion (7th Cir.1989).3 F.2d those characteristics determine whether rea determination of review a reasonably suspicion arouse under would v. suspicion de novo. Ornelas Unit sonable presented in the ease. See circumstances — -, -, States, U.S. 116 S.Ct. ed 1586; Sokolow, 490 U.S. (1996). 1657, 1663, Howev- 134 L.Ed.2d 911 LaFave, Hanson, 762, Wayne F.2d at R. er, findings of historical fact we review (3d 9.4(e) § at 174 ed. Seizure Search and only give weight due clear error 1996). judges local law that resident inferences Here, postal inspector stated from facts. officers draw those enforcement suspicion package his be aroused Here, postal inspector sev- articulated heavily taped, had been sent cause was He suspicion. which aroused his eral factors private person private from a to another met that these factors some stated Angeles, from Los person, had been mailed narcotics Postal Service’s elements city for city known to be a source narcotics Thus, appeal, par- on package profile. both distribution, zip mailed and had been validity invalidity rely ties on the zip than the code in the code different listed arguing against profile in for or reasonable postal ex return address. suspicion. example, For maintains Dennis years experi five plained that based lacked reasonable postal that the authorities investigator aas narcotics and based ence suspicion to detain his because profile, upon the narcotics these fac unreliable, vague profile are too criteria were tors consistent with characteristics that the fact while the asserts packages other found to contain contraband. pro- Express that the Mail met example, explained he of its For suspi- finding of reasonable supports file cost, high percent Ex about five of all cion. press personal correspondence Mail However, profile irrele itself is speed reliability and that because of its suspicion determination. vant a reasonable free postal provides because the service fact that certain characteristics The mere service, drug telephone tracking traffickers fit a officer observes law enforcement frequently personal use the service to send suspi profile not establish reasonable will correspondence containing contraband. Hanson, v. cion. States United correspon personal he concluded that (5th Cir.1986); Georgia, see Reid v. Express likely to con dence sent via Mail 2752, 2753-54, 438, 440-41, 100 these tain contraband. Under circum (1980) (rejecting appellate stances, L.Ed.2d suspicion postal inspector’s finding suspicion court’s of reasonable based justified detaining Ex reasonable and solely fact fit a on the the defendant press package. Mail See United States Likewise, Cir.1990) profile). Lux, the mere (finding courier 905 F.2d 1379 au fact that the characteristics which the where the met reasonable profile may be set forth in a unspecified thorities observe three factors ser evidentiary signifi aff'g profile) does not detract from vice’s narcotics Hill, F.Supp. n. 5 cance of those characteristics. United States (the Sokolow, 1, 10, 1581, (D.Kan.1988) size, shape and package’s 490 109 v. U.S. S.Ct. Place, 696, 709, Here, subjected postal inspector Ex- v. 462 S.Ct. 3. the States U.S. 103 dog 2637, 2645, (1983). Thus, press package as only sniff as well Mail to 77 L.Ed.2d 110 However, exposure detaining to a trained it. implicated the detention Dennis’s Fourth Amend- canine does not constitute a search within rights. ment meaning United. Fourth Amendment.

533 long profile, unreasonably period sender hand- met of time destination before ob- had an taining Mayomi, wrote the label and the sender unusu- a search warrant. 873 F.2d name/address). return Brevity al at 1053-54. of a detention is an “important determining factor” in whether it Dennis contends may justified by be suspicion reasonable postal inspector articulated factors which the Place, 709, only. 462 U.S. at 103 S.Ct. at suspi are insufficient arouse reasonable However, may 2645. we also consider is consistent cion because each factors police diligently pursued whether the their packages contra with which do not contain investigation. Accordingly, Mayomi, However, band. certain circumstances we detaining determined that one of the let- wholly may justify an lawful conduct officer’s day ters at issue for less than one awas de suspicion activity afoot. that criminal Sok implicate minimis intrusion that did not olow, 9, 109 (quoting 490 at at 1586 U.S. S.Ct. rights defendant’s Fourth Amendment Reid, 2754); see, at U.S. at S.Ct. detaining remaining two letters for Ohio, 22, 1, e.g., Terry U.S. S.Ct. hours, weekend, forty-eight over a so that (reasonable (1968) 1868, 1880,20 L.Ed.2d 889 inspector subject could them to a canine acts, suspicion based “a series of each of enough sniff was by brief to be sustained perhaps them innocent” but when “viewed suspicion. reasonable 1054. together investigation”). warranted further Moreover, appear circumstances which inno Here, clearly the record does not reveal may suggest cent the outside observer (A when package placed was in mail. activity experienced criminal law enforce photocopy Express appears Mail label personnel, determining and in whether 9,1995.) postmarked August However, to be exists, suspicion reasonable law enforcement clearly postal the record shows that in- may authorities assess these circumstances spector Express discovered the Mail light experience. of their United States v. in the mail and detained it at some time on Cordell, 1283, Cir.1983); August By p.m. 1995. 6:05 on that same Sharpe, see day, inspector completed had the canine 682-83 n. 1573-74 n. sniff and open obtained search warrant (1985) (“[T]aken together L.Ed.2d ap as package. Additionally, ap- praised by experienced law enforcement time, pears to have been delivered on officer, provided [the factors] articulated inspector postal record indicates that the justification stop clear the vehicles and Thus, diligent investigation. in his de- Here, pursue investigation.”). a limited ad forty-eight tention was less than hours and mittedly, any one of the factors which the necessary long subject lasted as inspector may articulated found such, to a canine As sniff. mailings innocent packages as well as con postal inspector’s suspicion justi- reasonable taining However, contraband. the conflu comported fied stop, and the search single pack ence of all of these factors in a the standards set forth in Van Leeuwen. appraised postal inspector, when experienced investigator, narcotics amounted to Discovery reasonable. Rule Violations Express may Mail have contained trial and between Dennis’s Wash justified investigatory contraband and trial, ington’s government obtained the detention. fingerprint analysis results of a which found Washington’s fingerprints both and Dennis’s time, however, point

At some Express package. on the Mail outside stop will detention mail extend from to a did not learn of these test probable requiring support seizure cause results until trial. after Dennis’s Conse suspicion. it rather than mere reasonable quently, failed disclose Sharpe, U.S. at See these results to Dennis trial but also also must wheth before determine necessarily er the detained the for an did not use this evidence in its mony attempting to flush con- that Dennis was Dennis against Dennis.4 case-in-chief the government could the at the time the cocaine down toilet because the tends that using reason- him to the that apprehended results and fact police have about the learned along the efforts, to learn about the box fingerprints its failure Dennis’s were on able evidence, violates Washington’s. light them Dennis In of this and disclose with results discovery requirements under pre-trial the agree its the district court we with 16. He of Criminal Procedure fingerprint Federal Rule not have affected evidence would that, substan- the omission according- that because reasons of the trial and the outcome him, a new tially he is entitled to prejudiced by prejudiced govern- the ly, Dennis not was rejected argu- this trial. The district court it to him. Because ment’s failure to disclose it in trial post ment Dennis raised trial, when fair the district court Dennis received motions, so do we. refusing not abuse its discretion did sanctions, impose and a new trial is not war- may, provides that court Rule ranted. to, impose required sanctions but not against violates its disclosure party who Washington’s Claim Jackson, C. requirements. United States Cir.1995). (7th sanc Those F.3d Washington govern that the argues discretion, and we to the tions are left court’s presented trial insufficient evidence at ment guess the decision will second court’s not against guilty him. to sustain the verdict Thus, a abuse of that discretion. absent evidence, sufficiency of the challenging the only if government new trial is warranted the Washington must a formidable overcome remedy offered violated Rule Crowder, F.3d hurdle. States v. United inadequate provide court was district Cir.1994). (7th uphold a We will Id.; with a fair trial. United defendant if, light most conviction when viewed Mounts, States v. government, favorable to evidence Cir.1994). rational trier of fact establishes fingerprint evidence fail to see how the of a could have found the essential elements Dennis, govern- helped would have doubt, beyond a and we will crime reasonable in its case. not use the evidence did jury’s not overturn a unless the rec verdict government are uncertain we evidence, it regardless ord no of how contains However, government 16. violated Rule weighed, jury find from which the could Ac- has that it violated the rule. conceded Id.; guilt beyond a reasonable doubt. Unit analyze the dis- cordingly, we will whether Wyhe, ed States v. Van refusing to trict court abused its discretion (7th Cir.1992). Moreover, will re not government. Because neither sanction weigh credibility of judge evidence fingerprint party about the evidence learned Wyhe, F.2d at witnesses. Van n untilafter the trial, avail- sanction Washington remedy jury viola- A of at able district court to convicted However, tempting possess tion a new the district cocaine with the intent was trial. sanction, finding charge required This impose court this to distribute it. refused Washington government prove acted light “overwhelming” that in evidence underlying guilt, specific not intent to fingerprint evidence would commit Washington took a have affected the outcome of the case. offense and that substan step committing underlying reaching holding, court tial noted towards Cea, videotape evidence Den- offense. States v. entered into showed (7th Cir.1990). receiving putting government present package, nis down 887 surveyed present while he the area determine if ed evidence accepted delivery pack any police present picking officers were when Dennis bringing accompanied apart into up into the Dennis Washington at- apartment. package, to testi- ment with the The court referred presenting did obtain the also refrained from evidence Because trial, Washington's day trial. information until the testimony when his tempted police impossible, to flee executed the is testify nor did he pro- Washington warrant and that any search as to events which he could not have police apprehended a false when duced I.D. jury observed. was aware of Dennis’s Additionally, him. false which I.D. in role crime and inconsistencies between Washington produced listed the ad- return his testimony in-court and out-of-court state- Washington’s on dress ad- ments was and entitled to determine Den- dress, arrest, Washing- his and at the time of credibility weigh nis’s testimony his as it ton had his wallet business cards from Los upon saw fit. Based testimony his Angeles piece paper and a of with Dennis’s government’s evidence, other it found Wash- government address written on it. The in- ington guilty. may reweigh not Dennis’s Finally, all troduced into evidence. Thus, testimony. affirm we the verdict. Washington that told him Dennis testified Moreover, in arguing that gov “something with sweet” it presented ernment no sufficient coming Washing- evidence was to his house and that aside from brought testimony, Dennis’s opened Washington ton after Dennis Clearly, jury inspector’s testimony it inside the house. a rational discounts beyond Washington present find a could reasonable doubt that was apart Washington specific pos- with acted intent when box was delivered and the sess cocaine with the intent distribute I.D. and business cards which admitted were Washington step and that took substantial into conceding evidence. While these committing toward on this crime based “suggest[ items possibility guilt,” ] the of his evidence. Washington maintains that this evidence is insufficient to sustain the verdict because Washington maintains that Den explanations “other suggesting innocence testimony waffling, “vague, nis’s 13). plausible.” (Washington’s atBr. How and, therefore, constantly impeached” is in ever, government present need not evi (Washing sufficient to sustain verdict. every hy dence that excludes reasonable 13-14). Br. at ton’s He reasons that without pothesis of so long innocence as the total testimony Dennis’s present permits guilt beyond evidence a conclusion of jury ed from no evidence could find a reasonable doubt. The which the evidence beyond Washington reasonable doubt government presented jury met this step possessing took substantial toward Thus, Washington’s burden. we affirm con cocaine. if agree Even we were to viction. Washington presented evidence, may no other sufficient testimony. III.

discount Dennis’s Conclusion Absent ex circumstances, traordinary we cannot reeval Both represented, defendants were well testimony uate a witness’s determine its reasons, but for foregoing the convictions Crowder, credibility. F.3d at must Dennis be Af- even when the defendant’s conviction rests FIRMED. accomplice’s on his testimo uncorroborated ny, uphold we must the verdict unless the RIPPLE, Judge, concurring Circuit in part testimony is incredible as matter of law. dissenting part. testimony Id. A is witness’s incredible as a join I in the affirmance of the conviction of matter of if it law is unbelievable on its Brown, Ray defendant James Donald Testimony Id. at face. n. is unbelievable a/k/a Washington. correctly The court concludes physically impossible face if is its that his have no merit. I re- the witness to contentions observe that which he claims dissent, however, spectfully majori- impossible to have or if it observed under ty’s affirmance of defendant Otha Dennis’ laws nature the occurrence to have place because, record, testimony taken conviction on this au- all. Dennis’s the instant thorities lacked de- action not incredible as mat reasonable may testimony ter of law. tain the mailed While have led his con- self-serving, nothing been inconsistent viction. case, passage Inspector the normal In this Postal Moreno said

An into intrusion drug pack- four met traditionally has been the United States profile’s package characteristics: The of utmost serious as a matter treated (1) California, Angeles, Los was mailed from convey the mails to contra ness. The use of (2) mail, individual, express individual obviously dangerous re materials band and (3) (4) heavily taped, zip from a code privacy that quires traditional of return different from that address. carriage of with the the mails be associate Although permutations profile’s other of the assess tempered practical, with a realistic might package suspi- a factors well render contemporary law of the of en needs cious, of these the combination four factors Postal forcement. The United States Ser completely produces a situa- unremarkable profile is drug package no doubt an vice’s tion, surely very one that “a would include establishing in important useful tool pack- of large category presumably innocent” probability particular contains Reid, 441, ages. 448 at U.S. 100 S.Ct. at Nevertheless, of the use contraband. profile particular in decision detain with, begin City mail must be an exercise of defensible Angeles To Los of had (one judgment professional just law enforcement be under 3.5 million in 1994 inhabitants year justify package. of a of fore can detention before seizure Mr. Dennis’ Census, brief, qualitative sig age). Bureau of the assessment U.S. Statistical 1996, at particular factors determined Abstract the United States: nificance of population justify figure balloons over present to be must the detention. The 15 if presence million one includes the inhabitants resid- simple The of several factors— ing surrounding metropolitan in any particularized assessment of without area. Inspector Although at 41. meaning legitimate Moreno could no basis for their —offers numbers, provide precise guessed he matching “Mere mechanical detention. probably parcels hundreds of thousands of thought to be common to of characteristics through system express sent are mail drug rigorous can meet the all couriers never fact, 1995, daily. in pieces 56.7 million of requirements of the fourth amendment.” through postal system. express mail went 757, Hanson, United States v. 801 F.2d 762 Service, Report Postal Annual U.S. Cir.1986); Georgia, also Reid v. 448 see of 1995, Postmaster General: at 39. If we as- 438, 440-41, 2753-54, U.S. S.Ct. express packages mail sume that 5.5% of (1980) curiam); (per L.Ed.2d 890 individual,1 over sent individual 3 million Sterling, v. States express person per- mail were items sent (7th Cir.1990). Instead, detaining “the offi mailing son 1995 alone. Such a from the objective particularized cers must have a country’s populous city second most is re- [or, suspecting particular person basis for soundingly unexceptional. case, particular package] stopped in this activity.” criminal Cor zip nothing The code factor adds of value tez, 411, 417-18, 449 U.S. 694- Angeles assigned to the mix. Los was (1981); 66 L.Ed.2d 621 see also United possible zip codes for see 2 use Sokolow, 1, 7-8, 490 U.S. Service, Five-Digit U.S. Postal National 1581, 1585-86, (1989); 104 L.Ed.2d Han Directory: ZIP Code Post Office (“To son, reasonable, be 6-43, at number does not include and, specific must officer’s assigned nearby numbers such areas extent, particular individualized to the as, some example, Nuys. Pasadena and Van exhibited....”). must characteristics this case was mailed from determining use our common sense in Inglewood, California-assigned zip wheth code ought er the facts to raise the Ange- articulated numbers itself —and contained a Los Cortez, requisite suspicion. It See les return address. should not raise an . eyebrow living Angeles S.Ct. at 695 citizen Los affidavit, personal. Inspector correspondence 1. In his Moreno wrote that mail is At trial he percentage express records indicate that about estimated the correct 5% 6%. turn, then, Inglewood. would mail a I to whether “heavy” taping Angeles mailing Even a Los resident enough adds to sustain this Angeles easily from Los could have “particularized” seizure as one based on sus- satisfying profile the misfortune picion. says Common sense Taping not. Many characteristic. us not simply indicative that the sender wants to culture, cities, reside in who smaller contents, package’s secure the they whether satisfy every this factor time we Indeed, drugs. be dishes or a mother way item on the to work. likely tape package” seams of “care disturbing high Also is the correlation be to ensure that her child’s cookies arrive fresh zip tween the code factor and the “source” college dormitory. There is no indica- city factor. It turns out that the Nation’s tion that taping was so excessive as to cities, Angeles, “source” like Los are also the postal regulations; indeed, violate the cities; largest they by necessity Nation’s are accepted mailing. was codes, by many zip covered and their resi sum, particular profile these four char- likely dents are therefore more mail from acteristics are zipa innocent when in- respec code different from that of considered their Indeed, very dependently tive homes. large some cit and innocent when combined. ies, may downright unlikely suspicion game; Reasonable is not a numbers originating zip return address codes inquiry must turn on whether the sum of match. See United v. would States Ornelas qualitatively articulated facts is signifi- -Ledesma, 714, (7th Cir.1994) 16 F.3d 716-17 cant.2 that, (noting not were circumstances on The up tries to shore its case themselves, by officers which relied innocent affidavit of the inspector pur but “the confluence of the[] circumstances porting explain significance of the well, pretty innocuous especially [was] as profile’s factors. The also re many since [were] circumstances cor “give minds us that weight we must related due independent”), rather than vacated States, inferences drawn grounds, by on other from [historical] Ornelas v. United facts — Ü.S.-, 1657, 116 ... local law S.Ct. 134 L.Ed.2d enforcement officers.” Orne — (1996). las, at -, 911 U.S. 116 1663.3 We 667, (1st (individual majority quantitative 1993) approach. favors a 671 Cir. had received Lux, (10th It cites United States v. 905 F.2d 1379 months, express packages three mail in five in 1990), says presence Cir. that the of three spector suspi knew that individual had received profile's enough factors is to sustain a mailings past, cious from West Coast in re seizure, regardless of what the factors are. See turn addresses were different but in the same ("Here, id. at 1382 met three factors handwriting, and one of the senders had the 'drug package profile’, giving of the Service's previously same name as another who had suspicion_"). authorities sufficient reasonable Daniel, drugs); mailed United States v. 982 F.2d that, noting despite It is worth Lux's broad lan (5th Cir.1993) (package 150 exhibited six of it, guage majority’s reading liberal that, characteristics, profile’s including package in Lux bore a false return address. See package’s shape shipment size and belied a Hill, F.Supp. United States “parts," alleged by contents declared (D.Kan. 1988) (case Lux; by noting affirmed Martinez, sender); F.Supp. United States v. the return addressee and return did address not (S.D.N.Y.1994) (facts tip included a match). from a confidential informant and different re majority permuta- The vast of cases deals with handwriting); turn addresses in the same profile's tions of the attributes that are more Contrall, (D.Kan. F.Supp. convincing permutation than the we have in our 1991) (several factors, including that the return See, Leeuwen, e.g., case. United States v. Van match); address and return addressee did not 249, 252, 1029, 1032, 25 L.Ed.2d Holden, 88-20105-01, United States v. No. (1970) (among suspicious 282 stances, other circum- (D.Kan. Jan.9, 1989) (including WL 7914 return address); package had fictitious return fictitious; packages address was six had been Glover, United States v. year). sent in less than a Cir.1997) (package detained because of a pattern suspicious packages, knowledge Ornelas, passage expansively, 3. This read daughter possibly defendant's drug was involved in becoming major trafficking, fast threat to Ornelas’ basic and research that had revealed prior holding. development packages the names or addresses on the Unless this is scrutinized fictitious); Allen, Court, consistently by Supreme may were United States v. so eases, swpm for a import of see note defendant the overall must remember cause probable express packages several over announce receive was to Ornelas time, are determinations when Mr. Dennis’ and reasonable short deferentially— detained, know, novo—not far to be de did not reviewed making appeals. reveals, the courts of packages record other as the assessment, it is true that independent being involved case. statement in the His infer- weight” to officers’ give “due case is without relevance to the therefore expe- law their enforcement ences because of says that Inspector us. Moreno also before rience, weight” “due does giving but express prefer dealers mail because judicial responsibility abdicating our mean they utilize number to confirm the can an 800 given by law critically the reasons examine packages. No data whereabouts of their individu- agents for invasions of enforcement Inspector Moreno support assertion privacy. al having no basis a view of the offers case, experience nationwide of the Postal Service. in this Given the state of record Moreover, particularized no indica- by Inspector Moreno there is inferences drawn operandi main Mr. includ- with caution. The tion that Dennis’ modus ought be assessed key point is in two support for his inferences contained number. On the ed use of This affidavit is con- pages package’s Inspec- an affidavit. taping, of the nature of the an clusory in and reads more like nature merely Moreno states that Mr. Dennis’ tor than a for the Postal Service carefully advertisement heavily taped. package was He us, fact. empirical It tells statement of is asserts this situation “consistent” by express mail example, that is favored pack- with —not characteristic of—narcotics drug “speed, of reliabili- dealers because ages.4 ty, and low cost of this service.” We are short, gives judicial In affidavit (as contrast, told, in individuals some frequency officer no real sense of the rarely express opposed corporations) use express mail is used dealers. of expensive. mail it is too Neither percent express Five to six of mail supported by or propositions is data these ages^ packages 3 million in 1995—are —about of any authority. other This lack citation mailed from an individual an individual. especially important is because the support percentage drugs? But what of those contain is of the collective affidavit couched terms many personal express packages How Service, experience the Postal not in terms of percent- are mailed from California? What Inspector particularized experi- Moreno’s packages heavily taped? are packages that the four char- ence with have eonclusory does the characterization What Indeed, Inspector acteristics of Mr. Dennis’. “heavy taping” Inspector mean? What profile Moreno focuses on the and on charac- experience Moreno’s with these four seem- case. teristics that are not involved this ingly many factors? How inno- innocuous example, express notes that mail is For he packages four cent have these characteris- rarely per- used on a “consistent basis” many guilty packages correspondence. Notably, although it tics? How have them? sonal suspicious been in some is the error rate?5 We not told has considered What are York, holding keep place, as as admitted that inclu enfeeble Ornelas’ state's matter, We, practical deferential stan- sion into the club as well. see Ornelas former -Ledesma, (noting one dard of circuit. F.3d at 716 that about this California), eight Americans are from Inspector Moreno informs us that California Reid, Court, Supreme see U.S. at being acquired devilish has distinction of probative S.Ct. at discounted val have employed labeled a state. The criteria "source” ue of defendant's connection to a "source” city to bestow that title —or of "destination” ought impressed by We not be the fact state. region municipality region or or —on was mailed from the Nation’s trial, Indeed, Inspector vague. Moreno testi- populous most state. qualifies, well fied that the entire West Coast as evidence, anecdotal, many country's largest popu- as and most 5. There some albeit Texas, examples profile's quite high. volunteered rate is In United lous states: He error Hill, Florida, Arizona, (D.Kan.1988), F.Supp. parts of the State of Wash- States v. ington. questioned eighteen specifically packages New When about that matched various criteria judicial perform has asked. Unfortu- tion. cannot meaningful and no officer review nately, opportunity do not having we have see adequately without been informed of which the Postal has cases Service the nature and agents’ basis infer- pulled suspected only to find out ences, knowledge experience. Judge did contain narcotics. McAuliffe, highest who sits on the court of Those result in no conviction and ac- cases Maryland, point State of made the well in produce appellant complain. cordingly no a similar context: sum, given In been we have not sort of accept We cannot assertion faith job assigned do the information need to If argue alone. the State is to that this byus the Constitution. combination of special sig- attributes is of are, doubt, particular permuta There no nificance when through viewed the collec- profile’s tions of the factors that amount to “a police, tive wisdom of the State must particularized objective for sus basis provide objective basis for determi- its particular stopped.” pecting [package] ease, however, nation. the State Cortez, 449 U.S. at has not disclosed underlying statistics Moreover, if government, did for as it explain why or data to the combination of Cortez, Supreme fully Court in were to ex produces circumstances at issue here rea- deductions, plain its inferences and and their suspicion. sonable No attempt was made bases, other combinations even more explain formulated, profile how this govern might innocent factors sustain the empirical even whether evidence which circumstances, ment’s burden.6 such how might development lead to its exists. ever, requires Fourth Amendment explain knowledge “why officer problem practices crime and ... of the of Here, ... attempt the officer did not planning engaging those or in forms certain experience offer own training or as significance of gives special criminal conduct support for the conclusion that the charac- 9.4(a), § to what he observed.” LaFave at of profile teristics the local were related to 142; accord United States v. Buenaventura- drug of a A “pro- activities courier. (2d Cir.1980) (“[T]he Ariza, 29, others, suggests upon file” their based experienced fact that an officer is does not experience data, empirical or collected require accept suspicions a court to all of his have made those conclusions. Where the reasonable, experience as nor does mere profile suggest of characteristics justi agent’s perceptions mean that an are profile conclusion for which the is offered facts.”) by objective (emphasis fied knowledge as a of matter common original). specialized these enforce law experience, the is test Court able to areas, judiciary where the federal lacks Where, here, validity inference. agents’ knowledge conflu where the aggregate does facts not as matter readily suspicious ence of factors is not knowledge permit of common a reasonable eye, reviewing judicial untrained officer afoot, suspicion activity that criminal is but require must more than “a wink and a nod” explanation by requires experi- reason of accepting from the before its empirical ence or data that the witness assertion that the was reasonable. have, advancing the conclusion does not judiciary’s responsibility It is the to ensure something authorities, required. more will be Other- law enforcement their wise, required place courts be courageous admirable at efforts would times laws, country’s blind faith in enforce the continue to re conclusions of absent law spect law, most hypotheses its fundamental the Constitu- enforcement officials whose profile Angeles properly were detained at Los Air- relied on the inferences of trained law port. Only eighteen three of those were eventu- personnel particularized find a enforcement ally found contain cocaine. Id. at 1526-27. stop basis “the for a inferences and fully explained sup- had deductions been at the LaFave, Wayne 6. See 4 R. and Seizure: Search pression hearing”). 9.4(a), § A on Treatise at Fourth Amendment (3d ed.1996) (opining that the Court Cortez 436, 400-01, cannot tested for L.Ed. foundations statistical (1904) (dissenting opinion), transform- accuracy. is ing shape of the Fourth Amendment into State, 611 A.2d Derricott 327 Md. quite different than intended form 9.4(e), (1992), § quoted 4 LaFave give Founding Fathers. want to our 174^75. society. drug-free But we also children offered no in this case give polity them constitutional want testimony the effective- from which to assess forged Lexington, and Philadel- Concord in a situation in profile, especially of this ness Today’s phia. might promote case the first present. these four factors are goal, but retards the second. With re- view, Accordingly, my meet did not its spect, join portion I cannot of the court’s proving that a reasonable burden judgment approach. that ratifies such suspected inspector would have Mr. Dennis’ containing package contraband.7

Recently, Supreme Court cautioned making to the Fourth

against exceptions tailored to the

Amendment — Wisconsin, culture. See Richards v.

U.S. -,-& n. (1997) (stat 1420-21 & n. L.Ed.2d 615 “ exception

ing that based on the ‘culture’

surrounding general category of criminal inappropriate and that “[i]t

behavior”

always dangerous ground somewhat ex protections

ceptions constitutional moment”). given

social norms of historical

Today requirements the court dilutes suspicion. By accepting gov

reasonable faith, justification

ernment’s the court wa duty

ters down the traditional of Article III critically government

judges evaluate request

officer’s invade seizure citi protec privacy

zen’s and thus enfeebles the

tions of Fourth Amendment.

Today, despite Supreme Court’s admo-

nition, interprets requirements court

of the Fourth Amendment to meet the exi-

gencies problem the current

plagues the Nation. the rules that Yet expedite

now formulate to the eradication of scourge also will set the vectors our and,

jurisprudence for in- other situations

deed, pres- “hydraulic other times. spoke

sure” of which Justice Holmes States,

Northern Securities Co. v. United Ho, Pavelski, Cir.) (“The 937-38 Cf. (5th Cir.1996) (holding government establishing did not Government has burden satisfy proving investigatory stop burden of reasonable officer reasonableness of and ac search."), denied, probable companying 917, would have had cause to arrest defen- cert. (1986); suspicious readily dant nature 93 L.Ed.2d 295 Longmire, apparent no elicited testi- United States v. (7th Cir.1985) mony gauge (holding which to extent offi- bears knowledge experience establishing cer’s in the area of burden that officer had rea fraud). seizure). generally justifying card credit See United States v. sonable

Case Details

Case Name: United States v. Otha Dennis and James Brown, A/K/A Donald Ray Washington

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 11, 1997

Citation: 115 F.3d 524

Docket Number: 96-1961, 96-2076

Court Abbreviation: 7th Cir.