145 F.3d 1194 (10th Cir. 1998), 96-1512, United States v. Rowland

Docket Nº:96-1512, 97-1016.
Citation:145 F.3d 1194
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Frederick ROWLAND, Defendant-Appellant.
Case Date:June 02, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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145 F.3d 1194 (10th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Frederick ROWLAND, Defendant-Appellant.

Nos. 96-1512, 97-1016.

United States Court of Appeals, Tenth Circuit

June 2, 1998

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Arthur S. Nieto, Denver, Colorado, for Defendant-Appellant.

Mark J. Barrett, Assistant United States Attorney, Denver, Colorado (Henry L. Solano, United States Attorney, Charlotte J. Mapes, Assistant United States Attorney, Denver, Colorado, on brief), for Plaintiff-Appellee.

Before TACHA, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

James Rowland appeals the district court's denial of his motion to suppress evidence obtained from his residence pursuant to an anticipatory search warrant. Rowland argues the warrant was invalid for lack of probable cause because the supporting affidavit failed to establish a sufficient nexus between the items to be seized and Rowland's residence. Although we conclude the warrant was not supported by probable cause, we affirm the district court's denial of the motion to suppress based on the good-faith exception to the exclusionary rule.

BACKGROUND

In 1993, United States Postal Inspector Patrick Carr learned that Rowland had filled out and mailed a questionnaire distributed by a sexually oriented business, expressing an

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interest in child pornography. In this questionnaire, Rowland gave his name and the address of a private post office box and indicated that he was interested in incest, pedophilia, and transvestites. About three years later, Carr targeted Rowland in a child pornography sting operation. On February 5, 1996, Carr mailed to Rowland's private post office box a brochure which had a picture of a young girl on a bicycle and which stated: "New in Colorado!! Not your typical fantasy!!! Forbidden Lifestyles!!!" The brochure provided a telephone number and an e-mail address. Within a few days, Rowland called the telephone number and left a message indicating an interest in young girls, video tapes, magazines, and "possibly meetings." Rowland gave the telephone number of a public pay phone and left the address of his private post office box.

On February 13, in response to the telephone message, Inspector Carr sent a second solicitation letter to Rowland. This letter thanked him for calling the "Family Affairs Hotline." The letter contained descriptions and prices of nine sexually explicit video tapes, referred to the availability of "a wide variety of both foreign and domestic magazines," and provided an order form. The following day, Rowland mailed an order for two video tapes, along with a money order for $125. Rowland also requested information about the magazines.

After receiving this order, government agents conducted surveillance of Rowland's post office box to determine his identity and to determine where he went after collecting his mail. The agents obtained a description of Rowland, learned that he worked for the Colorado Department of Revenue, and determined his home address. The agents also learned that the private post office box had been rented by someone other than Rowland, but Rowland was authorized to receive mail there.

On March 7, 1996, the government applied for and a magistrate judge issued an order for the installation of a mobile tracking device ("beeper") in a package containing the two ordered video tapes to be delivered to Rowland's private post office box. The government also obtained an anticipatory warrant to search Rowland's residence. The search warrant allowed investigators to search Rowland's residence once the package containing the video tapes was brought into the residence.

On March 8, the government delivered a package containing the two ordered video tapes and the beeper to Rowland's private post office box. At about 10:30 a.m., government agents observed Rowland pick up the package and walk back to his place of employment. While Rowland was walking back to work with the package, the beeper went into alarm mode, indicating that the package had been opened. The agents maintained surveillance outside Rowland's place of employment for the remainder of the day. Rowland was observed leaving his work at lunch time, but the beeper indicated that the package remained in the building.

Before Rowland left work at about 4:30 p.m., the beeper stopped functioning because the batteries had been exhausted. Government agents observed Rowland leave the building and walk to his car carrying a backpack and plastic bag, but they could not determine visually or by radio signal whether Rowland had the video tapes. The agents followed Rowland as he then drove for about six blocks, turned around, went back to his work, parked his car, and entered the building for a minute or two. He then returned to his car and the agents followed as he drove straight home.

Once Rowland was home, government agents observed him enter his residence, but they were still unable to determine whether he had the video tapes. Accompanied by three or four police officers, Inspector Carr then approached Rowland's residence and knocked on the door. Rowland's wife answered the door. Carr identified himself and said he wanted to speak to Rowland. Rowland's wife invited them in. Rowland then appeared and Carr questioned him about the package he had received in the mail. Rowland at first stated he didn't know what Carr was talking about. Carr told Rowland he had been observed picking up the package and taking it to his place of employment. Rowland responded that the package was at work. Carr then asked him where the contents

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of the package were. Rowland pointed to a backpack about four or five feet away and said the video tapes were in the backpack. Carr then showed Rowland the search warrant and notified him that the officers were going to search his residence. In the course of the search, the video tapes were found in the backpack. In accordance with the warrant, the officers also seized other items during the search of Rowland's home, including sexually oriented magazines and books.

Rowland was charged with knowingly receiving in the U.S. mail a package containing video tapes with visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). Rowland subsequently filed a motion to suppress the evidence seized at his home pursuant to the anticipatory search warrant. After a hearing on the motion to suppress, the district court denied Rowland's motion, determining that the warrant was supported by probable cause and that the police had satisfied the warrant conditions in executing the warrant. Alternatively, the district court determined that even if the warrant was invalid, the evidence need not be suppressed because the Leon good-faith exception applied to the search.

Rowland then entered a conditional guilty plea to the charge of receiving child pornography, reserving the right to appeal the district court's denial of his motion to suppress. See Fed.R.Crim.P. 11(a)(2). Rowland was sentenced to fifteen months imprisonment, followed by three years of supervised release.

On appeal, Rowland argues the district court erred in failing to suppress the evidence obtained from his home pursuant to the anticipatory search warrant. Rowland specifically asserts the anticipatory warrant was defective for lack of probable cause to believe the contraband would be found in Rowland's home. 1 Alternatively, Rowland asserts that, assuming the warrant was valid when issued, "the warrant's efficacy dissipated" when the beeper failed. Rowland also argues the Leon good-faith exception does not apply and therefore suppression of the evidence obtained pursuant to the invalid search warrant is appropriate.

This court exercises jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing the district court's denial of Rowland's motion to suppress, we accept the district court's factual findings unless clearly erroneous and view the evidence adduced at the suppression hearing in the light most favorable to the government. See United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995). The ultimate determination of the reasonableness of the search and seizure under the Fourth Amendment, however, is a question of law which we review de novo. See id.

ANALYSIS

I. ANTICIPATORY WARRANTS

This court first considered the constitutionality of anticipatory warrants in United States v. Hugoboom, 112 F.3d 1081 (10th Cir.1997). In Hugoboom, the court joined the majority of other circuits in holding that anticipatory search warrants, or warrants "which only become[ ] effective upon the happening of a future event, [are] not unconstitutional per se." Id. at 1085; see also United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir.1993) (reviewing general approval of anticipatory warrants by federal circuits). The court further recognized that anticipatory warrants are not " 'somehow suspect or legally disfavored,' " but have instead "repeatedly been upheld, assuming probable cause and so long as the conditions precedent to execution are clearly set forth in the warrant or in the affidavit in support of the anticipatory warrant." Hugoboom, 112 F.3d at 1085 (quoting United States v. Gendron, 18 F.3d 955, 965 (1st Cir.1994)).

In determining that anticipatory warrants are not per se unconstitutional, the court

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noted that the United States Constitution only requires that " 'a search ... not be "unreasonable," and that warrants ... be supported by "probable cause." ' " Id. (quoting Gendron, 18 F.3d at 965 (quoting U.S. Const. amend. IV)). The court recognized that

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