U.S. v. Bieri

• Decision Date: 26 May 1994
• Docket Number: Nos. 93-1870,93-1872,s. 93-1870
• Parties: UNITED STATES of America, Appellee, v. Susan D. BIERI, Appellant. UNITED STATES of America, Appellee, v. Leonard BIERI, III, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 811

21 F.3d 811

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.

Submitted Nov. 8, 1993.

Decided April 13, 1994.

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

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.

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 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, 76 L.Ed.2d 527 (1983). Probable cause exists when there are sufficient facts to justify the belief by a prudent person that contraband or evidence of a crime will be found in the place to be searched. United States v. Reivich, 793 F.2d 957, 959 (8th Cir.1986). The district court found probable cause existed because the officers had apprehended Ruiz with approximately forty-five pounds of marijuana, and he told them he was delivering it to the Bieris' farm. We take a "totality of circumstances" approach in determining whether probable cause existed, see Gates, 462 U.S. at 230, 103 S.Ct. at 2328, and conclude that the facts set forth in the affidavit regarding Ruiz's delivery were sufficient to establish that contraband would probably be found on the farm. ³

The Bieris next argue that the search warrant was invalid because it was overbroad as to the areas to be searched and the location of the premises. The Fourth Amendment requires that a search warrant describe with particularity the items to be seized. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.1987). The warrant must also enable the searcher to locate and identify the premises with reasonable effort. United States v. Ellison, 793 F.2d 942, 947 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986). "The requisite specificity of a description differs for rural and urban areas and depends heavily on the facts of each case." United States v. Dorrough, 927 F.2d 498, 500 (10th Cir.1991). We examine applications and affidavits for issuing a search warrant using a "common sense approach and not in a hypertechnical fashion." Williams, 10 F.3d at 593.

The search warrant listed the items to be seized as "MARIHUANA (sic) to include those items used for weighing, packageing (sic) and distribution thereof." It described the place to be searched as the "Residence and other buildings and vehicles belonging to Leonard & Susan BIERI, located on the property known as N 1/2 of Sec. 24, township 24N, range 17 West of Taney County Missouri." At the suppression hearing, Leonard Bieri testified that his farm buildings are the only structures on the described tract of property, and that the only road through the property ends at their farm buildings. An aerial photo map accompanied the search warrant, showing that the Bieri property is in an extremely remote area. The district court concluded the warrant described the location with sufficient clarity to allow the officers to locate the premises. We believe the district court did not err in that conclusion.

The Bieris' argument that the warrant was overbroad because it failed to describe which buildings the officers could search is without merit. Because the judge did not know which building contained the contraband, he made a reasonable decision to allow the officers to search the home and outbuildings. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (substantial deference owed to issuing judge's decision). The judge allowed the warrant for the buildings and vehicles on the farm because he reasonably expected the officers would find drugs and paraphernalia in both the house and farm buildings. There is "no reason why a search warrant based upon a controlled delivery must be more limited than other warrants." Tagbering, 985 F.2d at 951 n. 8 (observing that warrants to search for drug paraphernalia and records based upon controlled deliveries have been upheld in many cases). We believe the district court did not err in concluding the search warrant was not overbroad.

Next, the Bieris contend the court should have suppressed the evidence because the search warrant violated state law. In a federal prosecution, we evaluate a challenge to a search...