904 F.2d 443 | 8th Cir. | 1990
Lead Opinion
Appellant Vernon Johnson was convicted after a jury trial of attempting to possess with intent to distribute more than five hundred grams of cocaine. 21 U.S.C. §§ 841(a)(1), 846 (1988). Johnson appeals his conviction, arguing that the District Court
The investigation that led to Johnson’s arrest began when a package sent in the overnight express mail from Los Angeles to St. Louis aroused the suspicions of a postal inspector in Los Angeles. After advising Inspector Hearne, the postal inspector in St. Louis, of his hunch that the package contained narcotics, the inspector in Los Angeles forwarded the package to St. Louis at Inspector Hearne’s request. When the package arrived in St. Louis, Inspector Hearne arranged for a trained dog to sniff the package. On the basis of the dog’s reaction, which indicated the presence of controlled narcotics, the inspector applied for and received a search warrant to open the package. Within the package he found a one kilo block of pure cocaine and two bottles containing one half of a kilo of procaine, a substance commonly used to dilute cocaine prior to distribution. The inspector then applied for and received a warrant to place a transmitting device inside the package in order to effect a controlled delivery. The original contents of the package were removed and the device was enclosed, along with a stack of index cards, a can of soda, and a bottle of Maalox meant to simulate the brick of cocaine and the bottles of procaine. Transcript Vol. I at 34-35.
At this point the postal inspector was joined by several agents from the Drug Enforcement Agency. Their plan to make a controlled delivery of the package was complicated by the fact that the package was improperly addressed. Johnson’s counsel at trial described the opacity of the mailing label in her opening argument:
When the Express Mail package arrived in St. Louis it was addressed to a non-ex-istant [sic] address or location. The address could not be located in a criss-cross directory. The Postal Service had to surmise what address this package should be delivered to. There are misspellings. The street is misspelled. The city is listed as Normandy and the state is listed as Lucas and Hunt. There are three very important errors just on the label.
Transcript Vol. I at 22. The address the agents settled on as that most similar to the one on the mailing label turned out to be Vernon Johnson’s address. (The package was addressed to “Albert Nixson.”) Over the course of the next three days the
Shortly thereafter, the agents monitoring the transmitter lost the signal completely. The transmitter was not a tracking device but, rather, had the capacity to indicate when the package was being opened by sending a more rapid signal. Because the transmissions from the device simply stopped altogether without indicating that the package had been opened, the agents became concerned that the device had been found and dismantled. If the occupants had found the transmitter, the agents feared that they would destroy other evidence.
As the agents entered the apartment, Johnson emerged from the bathroom with his hands in the air. In the bathroom the agents found the index cards that had been planted in the package to simulate the cocaine brick in the original contents. The cards had been dumped in the commode and the brown paper wrapping discarded on the floor by its side. Immediately after entry, some of the agents had scanned the apartment for additional suspects. Although they found no one else in the apartment, during the course of this survey they did find and seize various drug paraphernalia that were in plain view.
Johnson argues that the evidence seized during this entry should have been excluded at trial because the agents entered without a warrant. He does not contest that the evidence taken was in the agents’ plain view. Rather, he contends that the government’s claim to exigent circumstances is inapposite because the agents could have obtained a warrant for a search of Johnson’s home prior to their execution of the controlled delivery.
If the address on the package had identified a real person at an accurate address, Johnson would have at least a colorable claim. If, in addition, this package had not been the first shred of evidence suggesting the existence of a narcotics operation, but rather had arrived in the mail during the denouement of a governmental investigation of Johnson, he would have a compelling argument. Indeed, it would have been a serious omission for the agents not to have applied for a search warrant had they known in advance that Vernon Johnson was the intended recipient of the package; that he, or someone at that address, would be willing to accept delivery of the package; and that Johnson’s apartment was in fact the situs of a drug operation. It also, we might add, would have been an omission completely incongruous with the agents’ meticulous behavior in the investigation of this drug shipment up until that point. As is generally the case with stories that depend upon the concerted irrational behavior of multiple individuals, Johnson’s description of events in this case does not conform to the facts.
The agents knew neither whether the address they credited the package label with describing was the intended address, nor whether the occupant of that address would be willing to accept the package. Secreting a transmitter within the package would have been rather redundant had there been no reason to doubt that the agents were delivering the package to its final destination. Moreover, there would have been no reason for the agents not to have applied for, and a magistrate not to
Johnson’s suggestion that the agents had sufficient information for a warrant prior to the time the package was finally accepted at his address must fall before the Fourth Amendment’s mandate that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched.” U.S. Const, amend. IV. Had the agents obtained a general warrant based on the information they had prior to the controlled delivery and then filled in the remaining details at the time of execution, this Court would have been compelled to condemn their conduct as violative of the Warrant Clause. See Lo-Ji Sales v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323, 60 L.Ed.2d 920 (1979). Nor, it seems, could the agents simply have described the address they assumed had been intended, because “the information put forth [in a warrant affidavit must be] believed or appropriately accepted by the affiant as true,” Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978), and the agents obviously had nontrivial doubts as to the intended mailing address of the package. In light of the false name given for the addressee and the numerous mistakes in the address itself these doubts were well-founded. The agents' assignation of Johnson’s address to the package label is more properly described as their best guess than as an actual belief. Similarly, it is far from assured that a court would be willing to characterize this hunch as “appropriately accepted ... as true.”
Perhaps more importantly, though, Johnson’s address might have been only a receiving depot for a larger operation somewhere else. In a case remarkably similar to this one — and in which we recognized the existence of exigent circumstances— this Court stated that officers conducting an investigation “were not required to seek a warrant as soon as they had probable cause to suspect a conspiracy to distribute cocaine [but] could legitimately wait in order to gather additional evidence.” United States v. Palumbo, 735 F.2d 1095, 1097 (8th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984). In that case, we cited with approval the distinction drawn by the Fifth Circuit between a planned arrest and an impromptu arrest made during the investigative process itself. The Fifth Circuit had written:
The government is not compelled to effect an arrest upon the occurrence of probable cause to believe a crime has been committed. Rather, the government may await that move in the hope of ferreting out any hitherto unknown individuals involved in the illicit undertakings, gathering additional evidence substantiating the crimes believed to have been committed, or discovering any other offenses in which the suspects are involved.... [U]nlike the case of the “routine” felony arrest, where a given individual and a distinct crime is [sic] involved, the fluidity of an ongoing investigation of the distribution of narcotics makes the obtaining of an adequate search warrant more difficult to time in the flow of events. While the possibili*447 ty of discovering additional participants or evidence of crimes does not negate the warrant requirement, we find that it is one factor to weigh in determining the reasonableness of the government’s warrantless arrest.
United States v. Hultgren, 713 F.2d 79, 87 (5th Cir.1983) (emphasis added).
Deference to the agents’ modus operandi in this case is appropriate. A package of drugs with an indeterminate address label suddenly fell into the agents’ hands. Moreover, as Johnson’s counsel at trial noted, Johnson did not fit the pattern of “a person who’s known to be involved in narcotics, someone who’s distributing, something of this nature.” Transcript Vol. I at 23. With no additional information about the package available to the agents, they had reason to question not only whether Johnson’s address was the address intended on the package label, but also whether that address was the actual site of the criminal activity. Thus, the agents planted a transmitter within the package and kept the house and its occupants under close surveillance in order to discover the package’s final destination.
It is irrelevant that there was a distinct possibility that, shortly after the package was delivered to Johnson’s address, it would be opened and that the exigent circumstances created by the likelihood of evidence being destroyed were therefore foreseeable. In United States v. Palum-bo, we explicitly stated that, because the exigency had not been manufactured by the officers, no amount of foreseeability could vitiate the officers’ justification of exigent circumstances. 735 F.2d at 1097. Here, none of the factors converging to create exigent circumstances was within the agents’ control.
As we already have observed, obtaining a valid search warrant would very likely have been impossible, as a result of a phony name and obscure address on the address label. Indeed, it is for the very purpose of evading detection that such fictional names and disarranged addresses are frequently employed by those who deal in drugs.
Judge Arnold’s dissent, post at 449, takes the view there is “nothing about this chain of events to distinguish it from what might well have happened if the package had been delivered to the home of a law-abiding citizen.” We disagree. Although the package label was indefinite enough to prevent the issuance of a warrant — undoubtedly this is one of the purposes of the cryptic addresses employed by those who send illegal goods through the mail — it was not so indefinite as to permit the assertion that Johnson’s address was, as likely as not, the apartment of a law-abiding citizen. Those who use the mails to traffic in illegal goods do not, after all, want their packages lost in the mail. The agents, of course, had no basis at all on which to conclude that Apartment E in the Lucas and Hunt apartment complex was the site of the main operation, but they could at least presume that it was fairly likely to be the intended first stop for the drugs.
In any event, the agents’ claim to exigent circumstances does not rely solely on their having accurately deciphered the address label: much more occurred before they entered Johnson’s apartment. First, the package was accepted at that address; second, the occupant of the apartment opened the package; and, third, the occupant did not respond to the announcement that the police were at his door but, rather, was heard dashing about inside the apartment. Judge Arnold’s consideration of the first two events in isolation allows him to formulate the proposition that because there is a reasonable possibility that each one of these acts could independently happen to, or be done by, a law-abiding citizen such as himself, there is also a reasonable possibility that both of them could take place with reference to a law-abiding citizen. (Judge Arnold does not suggest that he, like Johnson, might run away from his door, should the police ever come to it.)
It is basic to the law of probabilities, however, that “[i]f events A and B are independent, the probability of the intersection of A and B equals the product of the probabilities of A and B.” J. McClave & P. Benson, Statistics for Business and Economics, 135 (1982).
For the reasons discussed above, the District Court did not err in admitting the evidence seized at Johnson’s home. The judgment of the District Court is affirmed.
. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.
. Inspector Hearne testified that as he was approaching Johnson’s door he picked up the rapid signal indicating that the package was being opened. Transcript Vol. I at 40, 50. This would give rise to concern that the device was about to be discovered and, thus, the same danger that evidence would be destroyed.
. The package was addressed to: Albert Nixson, 5322 Ingelwood, Apartment E, Normandy, Lucas and Hunt Village, 63121. Appellee’s Brief at 2; see also, Transcript Vol. I at 44-45. There is no street named Ingelwood in St. Louis area, but the agents did discover one named Engle-wood; Normandy describes a suburban area within St. Louis; and Lucas and Hunt is obviously not a state, but rather is the name of an apartment complex within Normandy. Only the zip code was correct. Thus the agents delivered the package to: Vernon Johnson, 5322 En-glewood, Apartment E, St. Louis, Missouri 63121.
. The two men who were in Johnson's apartment when the package was delivered, for example, might have taken the package with them when they left without Johnson even having known that narcotics had been delivered to his address. The man who signed "J. Peters” for the package had been living with Johnson on an intermittent basis — indeed, much was made of his occasional residence at Johnson’s apartment by Johnson’s counsel at trial. But the agents scrutinized these two men as they left the apartment and saw that they did not have the package.
. One of the agents explained the reason for the controlled delivery in this case:
Well, for instance, if we hadn’t been in surveillance, this package had been delivered, it would have been signed for by a person that doesn’t exist. There’d be no way we could go back and find out what really happened to this package, other than it was delivered to an address and you could trace that it came from Los Angeles and it went to St. Louis and it went to that address, but as far as anybody actually being able to be held responsible for it, there wouldn't be anybody that you could hold responsible for it.
Transcript Vol. I at 113.
. Thus, we multiply the probabilities of each of these events independently occurring in relation to a law-abiding citizen in order to determine the probability that the entire string of events would occur to a law-abiding citizen. See also 25 Encyclopedic Americana 631 (1984).
. Although we do not believe these figures give short shrift to Judge Arnold’s concerns regarding the possible behavior of a law-abiding citizen, we note that various permutations of our estimates lead to the same general result: the probability that Johnson was a law-abiding citizen, based on the information the agents had just before entering his home, is extremely small. Thus, for example, ascribing a 100% probability to any one of the four factors, and assigning the other three factors a 25% probability, increases the odds of Johnson’s being a law-abiding citizen to only 1.56%. Similarly, placing the odds of two of these events happening to a lawTabiding citizen at 80% and two at 30% yields a 5.76% probability that the string would happen in relation to a law-abiding citizen.
Dissenting Opinion
dissenting.
To me, this is a case of exigent circumstances manufactured by law-enforcement agents. I believe that the motion to suppress should have been granted, and I therefore respectfully dissent.
The agents, having discovered illegal drugs in the package, caused it to be delivered to Johnson’s address. They placed in the package a transmitting device. Shortly after the package was taken into Johnson’s house, transmissions from the device stopped completely. The agents believed, rightly of course, that the device might have been found and dismantled. This led them to fear that other evidence would be destroyed. I see nothing about this chain of events to distinguish it from what might well have happened if the package had been delivered to the home of a completely law-abiding citizen. Such a citizen might have opened the package. He would then have discovered, no doubt to his complete puzzlement, a stack of index cards, a can of soda, a bottle of Maalox, and a transmitting device. Curiosity might well have led him to dismantle the device. In any event, he would surely have discovered it, and the agents would have known this, because the device would have sent a more rapid signal as the package was being opened. The agents would then have stormed the house, forced entry, and discovered nothing— nothing, that is, beyond an innocent person who had just opened a package that had been delivered to him and that he could have thought was intended for him. At most, we would have a case of someone who opened a package that he should have known was addressed to some other person. We would not have a case of a drug dealer reasonably supposed to be such according to information possessed by the officers before they broke into the residence.
It is not, as the Court concludes, irrelevant that the exigent circumstances relied upon by the police were foreseeable. The exigency lies not in the transmitter’s failure but in the transmitter’s presence. The officers decided upon this investigative strategy, and they are responsible for its likely result. See United States v. Munoz-Guerra, 788 F.2d 295, 298-99 (5th Cir.1986). People generally open the packages they receive. It was reasonably foreseeable that the package’s contents would be revealed upon delivery. It was reasonably foreseeable that the investigation would thus be revealed and an immediate entry required to preserve any evidence present. The genesis of the exigency claimed lies in the decision to replace the parcel’s contents — in spite of the replacement strategy’s probable consequences. The police, though well-intentioned, should be held accountable for manufacturing the urgency now appealed to as justifying their war-rantless entry.
There is a war on drugs, and we want to win it. But this war should be fought in accordance with rules. Otherwise, we may achieve victory, but it will be Pyrrhic.