U.S. v. Grubbs

• Citation: 377 F.3d 1072
• Decision Date: 26 July 2004
• Docket Number: No. 03-10311.,03-10311.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey GRUBBS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

377 F.3d 1072

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey GRUBBS, Defendant-Appellant.

No. 03-10311.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2004.

Filed July 26, 2004.

Quin Denvir, Federal Defender; Mark J. Reichel, Assistant Federal Defender, Sacramento, CA, for defendant-appellant Jeffrey Grubbs.

McGregor W. Scott, United States Attorney; Camil A. Skipper, Assistant United States Attorney, Sacramento, CA, for appellee the United States of America.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief Judge, Presiding. D.C. No. CR-02-00164-1-WBS.

Before: B. FLETCHER, REINHARDT, Circuit Judges, and RESTANI, Chief Judge.^*

REINHARDT, Circuit Judge:

Jeffrey Grubbs appeals following his conditional guilty plea on a charge of receiving a visual depiction of a minor engaged in sexually explicit conduct. 18 U.S.C. § 2252(a)(2). He contends that the district court should have granted his motion to suppress evidence, including his statements, because the anticipatory search warrant that authorized the search of his premises was invalid under the Fourth Amendment. To resolve Grubbs' claim, we must determine whether a facially defective anticipatory search warrant may be cured by information contained within an affidavit when that affidavit is not presented to the person or persons whose property is to be searched. We answer that question in the negative, and hold that the search of Grubbs' premises violated the Fourth Amendment.¹

I. FACTUAL AND PROCEDURAL HISTORY

On April 17, 2002, United States Postal Inspector Gary Welsh ("Welsh") presented an "Application and Affidavit for Anticipatory Search Warrant" to a federal magistrate judge. The application sought authority to conduct a search of Grubbs' residence on the basis of an order Grubbs allegedly placed for a videotape entitled "Lolita Mother and Daughter." Grubbs allegedly ordered the videotape from a website that advertised for sale numerous videos depicting illegal child pornography. Welsh averred that Grubbs sent him a letter which contained $45 in cash and a note stating: "I hope this makes it to you please send film asap thanks Jeff Grubbs." On the basis of this evidence, the magistrate judge issued an anticipatory search warrant. The face of the warrant stated:

Affidavit(s) having been made before me by ______ who has reason to believe that on the premises known as residence of Jeffrey Grubbs, [Address] as more particularly described in Attachment A to the attached Affidavit, in the Eastern District of California there is now concealed a certain person or property namely the records and materials described in Attachment B to the attached Affidavit. I am satisfied that the affidavit(s) and any recorded testimony establish probable cause to believe that the person or property so described is now concealed on the person or premises above-described and establish grounds for the issuance of this warrant.

As revealed by the "now concealed" language, the inartfully drafted warrant approved by the magistrate was written on a form "forthwith" search warrant.² The only indication that the warrant was an anticipatory search warrant was the word "ANTICIPATORY," handwritten at the top of the page above the words "SEARCH WARRANT." The warrant itself did not state what triggering conditions needed to occur in order to make the warrant valid; nor did it state the criminal activity of which Grubbs was suspected.

The warrant relied on a 25-page affidavit to satisfy the specificity and particularity requirements of the Fourth Amendment. According to the affidavit, the warrant would become operative once the videotape Grubbs ordered was "received by a person(s)" and "taken into the residence." Pages five and nineteen of the affidavit set forth these "triggering events," or conditions precedent, upon which a search would become authorized. The affidavit also had two attachments: Attachment A described the premises to be searched; Attachment B listed the items to be seized, including the videotape and packing material, Grubbs' Web TV components, and various other items.

The search took place two days later. At approximately 7:20 A.M., an undercover postal inspector delivered the videotape to Grubbs' residence. Grubbs' wife accepted the delivery of the package, signed for it, and took it into the house. A few minutes later, Postal Inspector Thomas Brucklacher saw Grubbs leaving. At approximately 7:24 A.M., Brucklacher and Inspector Esteban approached Grubbs and, after identifying themselves, told him to remain where he was standing. Grubbs asked Brucklacher why he and the other inspectors were there. Brucklacher did not answer, but instead referred him to Inspector Welsh, who was then approaching the residence. Meanwhile, Inspector Esteban performed a patdown search of Grubbs.

Shortly after Grubbs was detained outside of the house, Inspector Welsh arrived at the premises with a number of other law enforcement personnel. In all, there were ultimately ten officers and inspectors at the scene. Welsh allegedly 9971 announced "Police/Search Warrant" at the front door. Grubbs' wife, Ms. Bradstreet, disputed hearing that announcement, but did testify that she heard a knock and answered the door. Welsh briefly entered the house to help several other officers perform a "protective sweep." During that "protective sweep," the officers searched the house for other people and stopped to prepare sketches of the interior. They permitted Grubbs' children to leave for school after searching their backpacks. After assisting the officers inside, Welsh went back outside to speak with Grubbs, who was on the sidewalk with other officers. Welsh identified himself, and stated either "You know why we're here" or "Do you know why we're here?"³ Grubbs replied "yeah," and said that what the officers were looking for was in the garage. Welsh told Grubbs that he was not under arrest, but that they were there to serve a search warrant, and that they should go inside the house to talk.⁴

Grubbs and Welsh, accompanied by Officer Esteban, entered the house together and sat down at the dining room table. It was not until 7:53 A.M., approximately 30 minutes after the search began, that Welsh presented Grubbs with the search warrant.⁵ The copy of the search warrant provided to Grubbs included the two attachments, which described the place to be searched and the items to be seized, but did not include the affidavit that contained the "triggering events" or conditions precedent that would serve to make the warrant operative. Welsh contended that he had a copy of the affidavit with him at all times during the search, and that his team had all read the affidavit on the previous evening. However, the government concedes that the affidavit was not presented to Mr. Grubbs or Ms. Bradstreet, and that no copy of the affidavit was left at the residence following the search.

After the warrant was presented, Welsh reminded Grubbs that he was not under arrest, advised him of his Miranda rights, and asked if he understood those rights. Grubbs said that he did and agreed to speak to Welsh. The interview lasted approximately 55 minutes. In it, Grubbs admitted that he had ordered the pornography. He further admitted that he possessed child pornography in various digital forms in his home. At the conclusion of the interview, Grubbs was arrested and handcuffed. The officers seized the videotape in question along with several other items, including Grubbs' computer and several computer diskettes.⁶

Within a few days, a grand jury returned an indictment charging Grubbs with receiving a visual depiction of a minor engaged in sexually explicit conduct. 18 U.S.C. § 2252(a)(2).⁷ Grubbs filed a motion to suppress evidence, in which he challenged the admissibility of all of the seized evidence and his statements to Welsh. Grubbs made three principal claims: (1) that the agents' failure to present the affidavit to Grubbs or his wife rendered the warrant inoperative; (2) that the agents violated Fed.R.Crim.P. 41(d) by failing to present the search warrant at the outset of the search; and (3) that his statement that the video was in the garage should be excluded as the product of an impermissible custodial interrogation. The first and third claims alleged constitutional violations.

Following an evidentiary hearing, the district court denied the motion to suppress in a written order. With respect to Grubbs' first claim, the Fourth Amendment claim, the district court held that the anticipatory warrant could constitutionally be executed even though it failed to designate the triggering event for the implementation of the anticipatory search. It did so on the basis that the warrant incorporated the affidavit by reference, and that the affidavit was in the immediate presence of the officers while they searched Grubbs' residence. The court did not consider the officers' failure to present the affidavit to the residents of the home to be searched as constituting a constitutional defect. The district judge admitted that "it is logical that officers would be required to actually present the affidavit setting forth the triggering event to the people whose property they are searching in order to provide those people with information regarding the parameters of the search." However, after concluding that no case from our circuit had ruled on the precise question, the court declined to apply that logic "in the absence of specific guidance from the Ninth Circuit."⁸ Thus, it upheld the search, even though none of the persons whose residence was searched were shown the affidavit that identified the triggering event.

After filing a motion for reconsideration, which the district court denied, Grubbs entered a conditional guilty plea to the sole charge of the indictment — receiving a visual depiction of a minor engaged in sexually explicit...