21 F.3d 811 (8th Cir. 1994), 93-1870, United States v. Bieri

Docket Nº:93-1870, 93-1872.
Citation:21 F.3d 811
Party Name:UNITED STATES of America, Appellee, v. Susan D. BIERI, Appellant. UNITED STATES of America, Appellee, v. Leonard BIERI, III, Appellant.
Case Date:April 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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21 F.3d 811 (8th Cir. 1994)

UNITED STATES of America, Appellee,

v.

Susan D. BIERI, Appellant.

UNITED STATES of America, Appellee,

v.

Leonard BIERI, III, Appellant.

Nos. 93-1870, 93-1872.

United States Court of Appeals, Eighth Circuit

April 13, 1994

Submitted Nov. 8, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied May 26, 1994.

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[Copyrighted Material Omitted]

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Jacqueline A. Cook, Kansas City, MO, argued (James R. Wyrsch, on the brief), for appellant.

Richard E. Monroe, Springfield, MO, argued, for appellee.

Before HANSEN, Circuit Judge, JOHN R. GIBSON [*], Senior Circuit Judge, and JACKSON, District Judge [**].

JOHN R. GIBSON, Senior Circuit Judge.

Susan and Leonard Bieri appeal their convictions for conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. Sec. 846 (1988) and possession with intent to distribute marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(C) (1988). The Bieris argue on appeal that the district court 1 erred in: (1) denying their motions to suppress evidence seized pursuant to an anticipatory search warrant for the Bieris' farm; (2) calculating the total weight of marijuana for purposes of determining the base offense level and applying the sentencing guidelines; and (3) denying their motions for downward departures from the applicable guidelines. We affirm the Bieris' convictions and the sentences imposed.

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On January 14, 1992, George Ruiz, who had previously delivered marijuana from Arizona to the Bieris' farm in rural Missouri, was stopped by an Oklahoma trooper. Ruiz consented to a search of the car he was driving. When the officer found forty-five pounds of marijuana in the car, Ruiz agreed to assist the authorities by showing them where he was supposed to deliver the drugs and to tape-record the delivery. On January 15, 1992, Judge Chowning of Taney County, Missouri, issued an anticipatory search warrant after reviewing the deputy sheriff's affidavit, oral statements, and an aerial photograph of the Bieris' property. The judge directed the officers to execute the warrant only if Ruiz made the delivery and the facts developed as the officers expected. When Ruiz delivered approximately forty-five pounds of marijuana to the Bieris' house on their farm that evening, Susan Bieri paid him $300 as she had for previous deliveries. Shortly after Ruiz left, the officers arrived and the deputy sheriff asked Susan Bieri if he could search the premises. When she refused, the deputy sheriff presented the search warrant, advised her of her Miranda 2 rights, and proceeded with the search. The officer found marijuana (including the forty-five pounds Ruiz just delivered), cash, papers, a loaded gun, a large scale, wrapping papers, and other drug paraphernalia during the search of the house and outbuildings. The Bieris' two children, ages four and seven, were placed into protective custody by juvenile services at the time of the execution of the search warrant.

A grand jury indicted Leonard and Susan Bieri for conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana, use of a firearm in relation to drug trafficking, and ordered a forfeiture of certain real estate. Following a bench trial, the court convicted the Bieris of conspiracy to possess with intent to distribute and possession with intent to distribute marijuana, acquitted them of the firearm charges, and ordered a forfeiture of the tract of their farm that contained the house and outbuildings. The court sentenced Susan Bieri to 51 months in prison and Leonard Bieri to 57 months. This appeal followed.

I.

The Bieris first argue that the district court erred in denying their motions to suppress evidence seized from their farm. They contend the anticipatory search warrant was invalid for several reasons: (1) no exigent circumstances or probable cause existed; (2) the warrant did not comply with state law; (3) the search warrant was overbroad in the description of the place to be searched; (4) it did not comply with Federal Rule of Criminal Procedure 41; and (5) it was not executed in good faith. After a suppression hearing, the district court denied their motions.

We review the district court's denial of a motion to suppress evidence under a clearly erroneous standard. United States v. Hyten, 5 F.3d 1154, 1156 (8th Cir.1993). We affirm the district court's decision unless it is unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made. Id.

The Bieris first argue the anticipatory search warrant was invalid because no exigent circumstances existed and the warrant did not sufficiently limit the officer's discretion if the events did not develop as anticipated. Anticipatory search warrants may be issued even absent exigent circumstances. United States v. Tagbering, 985 F.2d 946, 950 n. 6 (8th Cir.1993). An anticipatory search warrant should be upheld if independent evidence shows the delivery of contraband will or is likely to occur and the warrant is conditioned on that delivery. See id. at 949 (citing United States v. Garcia, 882 F.2d 699, 702 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989)). Statements of a reliable informant can provide sufficient basis for issuing a warrant. United States v. Pressley, 978 F.2d 1026, 1027 (8th Cir.1992). The record shows that the issuing judge found probable cause based on the officer's affidavit stating that Ruiz was planning to deliver marijuana to the Bieris' farm. The judge studied the affidavit and

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the aerial photograph before issuing the warrant. Thus, the district court did not err in denying the motions to suppress evidence. See United States v. Koelling, 992 F.2d 817, 823 (8th Cir.1993).

The Bieris also argue the anticipatory search warrant was invalid because the officers did not show probable cause to the issuing judge. We review the district court's determination of probable cause under a clearly erroneous standard, and give considerable deference to the issuing judge's determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331...

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