115 F.3d 524 (7th Cir. 1997), 96-1961, United States v. Dennis

Docket Nº:96-1961, 96-2076.
Citation:115 F.3d 524
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Otha DENNIS and James Brown, a/k/a Donald Ray Washington, Defendants-Appellants.
Case Date:June 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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115 F.3d 524 (7th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,


Otha DENNIS and James Brown, a/k/a Donald Ray Washington,


Nos. 96-1961, 96-2076.

United States Court of Appeals, Seventh Circuit.

June 11, 1997

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Argued Oct. 23, 1996.

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Lawrence S. Beaumont (argued), Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Thomas A. Bruno (argued), Bruno & Associates, Urbana, IL, for Defendant-Appellant Otha Dennis.

Anthony Novak, Urbana, IL, Kristin R. Solberg (argued), Novak & Associates, Urbana, IL, for Defendant-Appellant James Brown aka Donald R. Washington.

Before WOOD, Jr., RIPPLE and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

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 cocaine. The inspector replaced a portion of the cocaine, 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 indicia 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

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denied two motions to suppress, the district court severed the defendants' cases for trial. At separate jury trials, Washington and Dennis were convicted, and the district court sentenced each defendant to seventy-eight months imprisonment and three years supervised release.

II. Discussion

  1. 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, 517 U.S. 690, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); United States v. Leidner, 99 F.3d 1423, 1425 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1434, 137 L.Ed.2d 542 (1997); United States v. Adames, 56 F.3d 737 (7th Cir.1995).

    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, 99 F.3d at 1425. However, at the time a court issues an anticipatory warrant, probable cause exists to believe that contraband will be located at the premises to be searched after certain events transpire. Id. Thus, conditions precedent to the execution of an anticipatory warrant are integral to its validity. As the Second Circuit explained, probable cause to uphold an anticipatory search warrant exists when a government official presents independent evidence indicating that delivery of contraband will, or is likely to, occur and when the magistrate conditions the warrant on that delivery. United States v. Garcia, 882 F.2d 699, 702 (2d Cir.1989). In Garcia, a seminal case on anticipatory warrants, the court also recognized that warrants conditioned on future events present some potential for abuse. As such, the court cautioned that a magistrate issuing an anticipatory warrant should protect against premature execution "by listing in the warrant the conditions governing the execution which are explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents." Id. at 703-04.

    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

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    the face of the warrant and that the anticipatory warrant issued in this case is invalid because it failed to list these conditions on its face. However, the Second Circuit has expressly rejected this argument. United States v. Moetamedi, 46 F.3d 225, 228-29 (2d Cir.1995). In Moetamedi, the court held that an anticipatory warrant need not state on its face the conditions precedent for its execution if the warrant affidavit contains "clear, explicit and narrowly drawn" conditions and the executing officers actually satisfy those conditions before executing the warrant. Id. at 229. The court reasoned that conditions precedent need not appear on the face of a warrant itself because the affidavit containing the conditions also will contain a sworn representation that the warrant will not be executed until the package is delivered and accepted. Id. (citing United States v. Tagbering, 985 F.2d 946, 950 (8th Cir.1993)). Even though a copy of the warrant affidavit was not attached to the warrant at issue in Moetamedi, the court upheld the warrant because the affidavit contained satisfactory conditions, the issuing magistrate accepted those conditions and the officers executing the warrant satisfied those conditions. Id.

    We see no reason to depart from the Second Circuit's interpretation...

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