United States v. Pedro Ernesto McGregor
31 F.3d 1067
11th Cir.
1994
Check Treatment

*4 would alert them when KRAVITCH, Circuit Judge, dissenting: opened. Inspector Perone, applied who I respectfully dissent. my view, the warrant to monitor beeper, testified in this case violated the that he did not ask the federal Fourth Amendment because the claimed exi- who issued that warrant for an additional gency was law enforcement offi- apartment cials ample who had time to obtain a warrant. once the cocaine was delivered because he part As investigative of an strategy post- believed that due to the relatively small al in a package amount of involved, the United they delivered to McGregor and then relied Attorney prosecution decline upon possible his discovery of that beeper as favor of prosecution.1 a state majori- As the an exigency to enter his home. The conclu- ty opinion notes, cooperating agent sion of did began process of securing a state search not create defies common sense. warrant but when the federal officers learned After the United Customs that a state warrant could not be executed tors in Miami discovered the cocaine secreted until fifteen minutes after the beeper sound- notebook, in a delivery was made ed the agents federal proceed decided to addressee, Jorge Chavez, Naper- without a warrant. Once the agent ville, Illinois. He was arrested immediately learned, prior delivery to the of the package, accepted when he delivery of the package. agents federal involved were not agreed cooperate with authorities proceeding in compliance law, with state and stated had offered him refused participate operation. in the one thousand dollars to accept delivery of the package containing cocaine and to Disguised forward it postal as a delivery worker, In- to McGregor in Miami. In electronically spector Perone delivered the package to monitored calls that Chavez made to McGre- McGregor apartment. his 2. Defendant Duchi, cites United States v. (which in this case doubt), we we decline to (8th Cir.1990), F.2d 1278 as posi- for his follow it. Although tion. we think distinguishable Duchi is point on the "denouement of a initially Perone testified that a state search investigation,” binding it is not on us. To the obtained, warrant had been testimony but that extent that Duchi would dictate a different result was corrected at a later date. Lynch, signed for himself identified Cir.1991) (following Burgos); surveillance conducted then Edmondson, beeper. monitored apartment exist Cir.1986) circumstances (exigent delivery, Five-and-a-half obtain impractical to impossible it is package when alerted Louisiana, warrant); Vale made inspectors then cf. had been 1971-73, 34-35, S.Ct. entry into a warrantless im of home (1970) (warrantless search the occu- 409 inspectors located inside, the showing exception con- proper pants obtaining impracticality exterior clause Although the taining cocaine. note- leather say warrant). hidden cocaine was covers which book as soon as obtaining McGre- be secured After intact. remained grounds apartment, legally sufficient are to search there consent gor’s co- rule constitutional per se quantities one; is no other discovered who officials forbidding law enforcement McGregor confessed. caine *5 exigen acting on cause probable juris- Amendment Fourth settled Under Law enforce arise. subsequently cies that seizure search or a warrantless prudence, may cause probable possessing officials ment unreasonable. presumptively is a home inside re the warrant however, not, circumvent 586, 573, 100 York, U.S. 445 v. New Payton exigen causing an intentionally by quirement (1980). 1380, 639 L.Ed.2d 1371, 63 S.Ct. “This situation.2 stable in an otherwise cy circum- exigent cause probable Where a warrantless ... held has Circuit however, action exist, stances possess police illegal when is at 590, S.Ct. 100 Id. be allowed. may obtaining a warrant of instead cause undisputed It is United circumstances.” exigent create appellant to arrest (11th 1506, 1511 Tobin, F.2d 923 v. States con- the notebook for v. banc) (en (citing States Cir.) United Schef whether only is issue taining cocaine. Cir.1972)), (5th 567, 575 F.2d fer, 463 justified the exigency an — 116 -, denied, exigent when may become 243 A situation destruction, re loss, danger is there this of the facts Under United of evidence. concealment moval act for the reason no simply (11th 1315, 1325 Blasco, F.2d 702 v. States con- theAs a warrant. without 914, 104 S.Ct. 464 U.S. Cir.), cert. package, delivery of of time trolled exigency 275, 78 L.Ed.2d disputed that eases” in narcotics compelling “particularly after Even a warrant. to secure ample time destroyed. easily may be narcotics delivered, five over 442, 446 Young, 909 F.2d v. United that the beeper indicated before passed exception, exigency (11th Certainly, “the inevitable however, applies to have for was sufficient must obtaining a delay incident an ar- A obtained. immediate urgent need an way to give given the rest F.2d Burgos, 720 United action.” entering grounds legal Cir.1983); United also (11th see (quoting Lynch, inherently unstable nothing 2. There was Cir.1989) (cita George,883 delivered the cocaine circumstance " Tobin, omitted)); also their see are inside 'Suspects who tions appellant. banc) (cir Cir.) (en impending arrests of their and unaware homes flee, sus usually nor reason are not generally have no cumstances surveillance), cert. any immedi- ordinarily they unaware pects are their crime.’" fruits ately to home.3 Payton York, v. New ty’s U.S. at conclusion that did not 589-90, 100 S.Ct. at 1381-82. create exigency by placing but that McGregor spite facts, created con- exigency by it, opening cludes twists beyond recog- entry justi- nition the meaning fied exigency. an our purported rule that law en- forcement may in this officials possibility exigen- cy.5 might have seen when he destroyed In a factually similar Eighth case the Cir- cocaine in the exigency, notebook.4 An how- cuit concluded that “postal inspector cre- ever, be a circumstance that was not ated the circumstances.” United intentionally law enforcement offi- Johnson, States v. cials who bypass chose to the warrant re- Cir.1993). The Johnson court reasoned: Tobin, quirement. Here, F.2d at 1511. As a matter investigative strategy, [the Inspector Perone testified they had de- postal inspectors] substituted another sub- cided proceed not to on a state warrant but stance for the cocaine base and instead to deliver wait until the beeper in By so, doing beeper alerted and then make a warrantless inspectors created, or at greatly least entry into McGregor’s Knowing creased, the risk that the evidence would McGregor was expecting the package, the destroyed. Had not altered the inspectors addressed it to him and delivered package’s contents, there would have been home, it to his placing within it little or danger being evidence de- designed to alert them when the package was stroyed obtained the search opened. McGregor proceeded to do what *6 warrant. most people can reasonably expected to do upon receiving a package addressed to Id. at 764-65. The recognized Johnson court them: Any it. exigency that that the was not by the arose in this case by was created the opening addressee the package, by the placed tors who the in the inspectors placed who the beeper in the and delivered it to McGregor. majori- The package and delivered it. denied, - U.S. -, 299, 112 S.Ct. 1119, 116 L.Ed.2d 1071, 111 S.Ct. 112 L.Ed.2d 1177 243 (1991); Acosta, United 1248, States v. 965 F.2d (3rd Cir.1992) 1254 (adopting reasoning of Mac course, 3. Donald). Of if the had an As majority war- opinion arrest the recognizes, rant, they would have been our entitled to arrest court has sided with those circuits that have McGregor any and seize plain contraband in police may that intentionally not by inside, view. legally however, pass could requirement the warrant creating exigent requested have See, consent to search his circumstances. e.g., United States v. Rich apartment. ard, 244, (5th 994 Cir.1993) 248 (citing Webster, 307, United States v. (5th 750 F.2d 327 Cir.1984), nothing There denied, is 1106, in record supports that rt. 471 U.S. ce 105 S.Ct. panel’s 2340, police conclusion that the (1985)); 85 were reason- 855 United States v. able Beltran, in their 641, that (1st concern would be 917 Cir.1990); 643 United discovered once Duchi, 1278, There v. (8th 906 F.2d 1284 Cir. was no evidence testimony 1990); or concerning Buchanan, the size United 349, States v. 904 F.2d shape beeper, (6th or the manner in Cir.1990); which it Timberlake, United States v. in package. Without 592, infor- this (D.C.Cir.1990); United States mation, we cannot know if the concern that the George, 1407, v. 883 F.2d 1989); 1413-14 Cir. beeper would be discovered was reasonable. United Napue, 1311, 834 F.2d 1327 n. Despite evidence, this lack of panel concludes (7th Cir.1987) (citing Rosselli, inspector’s concern was reasonable. 627, 506 F.2d Cir.1974)); cf. States v. Grissett 925 Cir.), F.2d 945, 5. Some circuits police denied, have held may that cert. create 500 U.S. exigent circumstances, provided they do not en L.Ed.2d 486 Although majority opin gage in otherwise unlawful conduct. See United ion states that it circuit, abides the law of this MacDonald, (2d through Cir. interpretation its of places the facts it (en 1990) banc) (provided police circuit, “act an in en practical our for purposes, all alongside tirely manner, they lawful do impermissibly not those courts have that may held that cre circumstances”), ate circumstances. it have that would suggests The in which case Johnson, is not Like inspectors to for the inefficient desti- been about unsure authorities unexecuted. it went in had warrant cocaine. nation mandates, constitutional ignore not McGregor would should expect that to every reason to be find them we however, because merely deliv- him and addressed open efficiency prop- Moreover, if inefficient. Perone testified Inspector his home. ered inefficiency consideration, my view pack- delivery of the er that war- unexecuted that than greater that even believed age the conducted searches rants results recipient ultimate result Amendment “were Fourth violation majority states however, In this where, by whom evidence. when, suppressed about unsure not would suggests obtaining a warrant opened,” would box a war- suspect reason inefficient. some had un- a federal beeper for rant would deliver could However, application there is else. an additional to someone pointed a con- As such time. much consumed record in the nothing not intended testified Perone Inspector above, if the Although even out clusion. still person, did another and exe- delivered it was cause open the else, evidence. for someone for farther intended cute with gone unexecut- conversations Thus, every with provided ed. McGregor was believe ruling court’s the district reverse I undisputed It distributor evi- McGregor’s motion denying about the if unsure even inspectors, dence. ample recipient of ultimate obtaining legal basis abso- and not requires simply Further, even certainty.6 lute *7 in- package was suspect certainly the else, someone tended McGregor and intended spectors evidence, as further indicated calls telephone America, STATES UNITED one drug transaction Plaintiff-Appellee, involved. not like case did war- of execution terms Barros, Carlos M. COSTA, Jose P. Luis sought. initially rant that Defendants-Appellants. Bicho, D. reasonably con- states No. 93-6113. imprac- that a cluded au- require that it would tical because Appeals, Court beeper indi- 15 minutes wait thorities Circuit. Eleventh cated executing Sept. warrant. however, for the explanation, provides warrant, which to obtain failure federal period waiting contained not have law. Florida under required else, no reason inspectors had someone inspectors when beeper alerted

6. The open the first he wouldn't think note- when the opened, not package was outside notebook sent the Thus, make sure cocaine. opened to reveal book containing to deliver McGregor intended even