577 F.3d 231 (4th Cir. 2009), 08-4721, United States v. Andrews

Docket Nº:08-4721.
Citation:577 F.3d 231
Opinion Judge:TRAXLER, Chief Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raymond Lewis ANDREWS, Defendant-Appellant.
Attorney:Stephen Clayton Gordon, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant. George E...
Judge Panel:Before TRAXLER, Chief Judge, GREGORY, Circuit Judge, and FREDERICK P. STAMP, JR., Senior United States District Judge for the Northern District of West Virginia, sitting by designation. Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge GREGORY and Senior Judge S...
Case Date:August 12, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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577 F.3d 231 (4th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond Lewis ANDREWS, Defendant-Appellant.

No. 08-4721.

United States Court of Appeals, Fourth Circuit.

August 12, 2009

Argued: May 13, 2009.

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ARGUED:

Stephen Clayton Gordon, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant.

Jennifer P. May-Parker, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant.

George E.B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, GREGORY, Circuit Judge, and FREDERICK P. STAMP, JR., Senior United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge GREGORY and Senior Judge STAMP joined.

OPINION

TRAXLER, Chief Judge:

Following a bench trial, Raymond Lewis Andrews was found guilty of illegally possessing a firearm after having been convicted of a felony. See 18 U.S.C. § 922(g)(1). On appeal, Andrews challenges the district court's denial of his motion to suppress evidence seized from his house and used to secure a conviction against him. Finding no error in the ruling of the district court, we affirm.

I.

On August 24, 2006, Cumberland County law enforcement officials were conducting a parcel interdiction at a Federal Express (" FedEx" ) shipping center in Fayetteville, North Carolina. Through the use of drug dogs, officers identified a suspicious package. The package was addressed to " Crystal Rhodes" at 1528 Cashiers Lane, Apartment 7, Fayetteville, North Carolina. Pursuant to a search warrant, officials opened the package and discovered approximately eight pounds of marijuana.

At the request of the Cumberland County officers, Detective Roy Gallegos of the Fayetteville Police Department agreed to arrange a controlled delivery of the intercepted package to the addressee. After taking custody of the package, Detective Gallegos learned that FedEx had received a telephone call instructing that the package in question be delivered to Apartment 9 rather than Apartment 7. Detective Gallegos met with FedEx employees to

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confirm that FedEx changed the delivery address at the request of the shipper. Detective Gallegos obtained a " Customer Exception Request" computer printout reflecting that " Becky Rhodes," the purported customer who was shipping the package, called on August 24 and requested that the delivery address be changed to " Apartment 9" -the rest of the delivery address, including the street number, remained unchanged.

With this additional information in hand, Detective Gallegos dispatched police officers to investigate the new delivery location. The officers discovered that 1528 Cashiers Lane, Apartment 9, did not exist and that the only Apartment 9 located on Cashier's Lane had a street address of 1520 Cashiers Lane. Detective Gallegos also determined that no one by the name of Crystal Rhodes, the addressee named on the package, resided at either 1528 Cashiers Lane, or at 1520 Cashiers Lane. Based on these facts, Detective Gallegos concluded that the intended destination for the package was Apartment 9, 1520 Cashiers Lane.

In order to apprehend the unknown persons involved in the shipping and receiving of this package, Gallegos applied for an anticipatory search warrant for marijuana and other controlled substances, firearms and " items of drug furtherance." J.A. 83. The anticipatory warrant was to be executed following the controlled delivery:

WITHIN 48 HOURS OF THE ISSUANCE OF THIS WARRANT AN ATTEMPTED DELIVERY OF THE PACKAGE WILL TAKE PLACE. UPON DELIVERY AND ACCEPTANCE OF THE PACKAGE, PROBABLE CAUSE WILL EXIST THAT CONTROLLED SUBSTANCES WILL BE PRESENT. BASED UPON DELIVERY OF THE PACK AGE ..., AN ANTICIPATORY SEARCH WARRANT IS SOUGHT FOR THE PREMISES OF: 1520 CASHIERS LN, APT # 9 FAYETTEVILLE, NORTH CAROLINA 28311.

J.A. 83. In the application, Gallegos explained that an intercepted FedEx package containing marijuana was addressed to 1528 Cashiers Lane, Apartment 9, but that " A SEPARATE INVESTIGATION REVEALED THAT 1528 CASHIERS LN APT # 9 WAS ACTUALLY 1520 CASHIERS LN FAYETTEVILLE, NORTH CAROLINA 28311." J.A. 83 (emphasis added). The application did not explain that the package was originally to be delivered to Apartment 7 at 1528 Cashiers Lane, or that FedEx changed the delivery address to Apartment 9 at the request of the customer. Also, the application provided no further details about the " separate" investigation.

In the affidavit accompanying the warrant application, Detective Gallegos identified the address of the premises to be searched as " 1528 CASHIERS LN. APT # 9." J.A. 82. Gallegos " informed the magistrate, under oath, that he had provided a mistaken address in the affidavit accompanying the warrant application, and that the address to be searched was 1520 Cashiers Lane, Apartment 9." J.A. 117. Then, " [i]n clear view of the magistrate, Detective Gallegos manually changed the address on the affidavit from 1528 to 1520, [and] placed initials next to the change." Id. Finally,

[w]hile still under oath, Detective Gallegos detailed the nature of the ‘ separate investigation’ referred to in the search warrant application. Specifically, he told the magistrate that he sent police officers to 1528 Cashiers Lane who determined that the only house number 9 on that street corresponded to 1520 Cashiers Lane.

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Id. (emphasis added). Detective Gallegos also told the magistrate that the supposed recipient of the drug package, " Crystal Rhodes," did not reside at Apartment 7, 1528 Cashiers Lane-the original delivery address-or any other address in the vicinity: " [T]here was no Crystal Rhodes out there, that lived out there." J.A. 52. The magistrate concluded that probable cause existed and issued the anticipatory search warrant for 1520 Cashiers Lane, Apartment 9.

Finally, Detective Gallegos sent an officer posing as a Federal Express employee to deliver the drug package to 1520 Cashiers Lane, Apartment 9. Andrews answered the door, and the undercover officer explained " that the parcel was going to 1528 Number 9 but that number 9 did not exist" and that Andrews' " trailer was the only one with a 9 on it." J.A. 45. Andrews signed for the package using " John" as an alias, thanked the undercover officer and placed the package inside his residence.

According to Detective Gallegos, Andrews' acceptance of the package " triggered" the anticipatory search warrant. Before agents executed the warrant, however, they observed Andrews take the package from his trailer, walk it down the street to 1524 Cashiers Lane, Apartment 8, and place the package outside of the trailer at that address. Agents then arrested Andrews at 1524 Cashiers Lane immediately after he placed the package there.

Following the arrest of Andrews, law enforcement officers executed the search warrant for Andrews' trailer, resulting in the seizure of illegal drugs, drug paraphernalia, a Ruger rifle and ammunition. Andrews, after being provided his Miranda warnings, told Detective Gallegos " that he was receiving the box that was supposed to be delivered on the 24th to the corner trailer, which was number 7, and give it to a subject named Mason." J.A. 46.

Andrews, having previously been convicted of a felony, was indicted for illegally possessing a firearm. Andrews moved to suppress the evidence seized in the search, arguing that the facts presented to the issuing judge were insufficient to establish probable cause because there was no evidence establishing a nexus between Andrews' home and the FedEx package containing marijuana.

Andrews' motion was considered initially by a federal magistrate judge, who concluded that the materials presented by Detective Gallegos, " combined with Gallegos' verbal statements to the [issuing] magistrate," established " a substantial basis [to believe] that following a controlled delivery of the intercepted parcel, a search of 1520 Cashiers Lane, Apartment 9 would uncover evidence of wrongdoing." J.A. 90. The magistrate judge rejected Andrews' contention that there were no facts presented connecting Apartment 9, 1520 Cashiers Lane, to the items sought in the search, concluding that a sufficient link was established through evidence that FedEx changed the apartment number at the request of the person shipping the package, making Apartment 9 " the current pack age address, regardless of what was actually written on the address label." J.A. 91. Andrews' residence was linked to the package because it was the only Apartment number 9 on the street.

Additionally, the magistrate judge concluded that even if the search warrant lacked probable cause, the evidence seized in the search would nevertheless be admissible under the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 919-21, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

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The district court agreed with the recommendation of the magistrate judge that Andrews' motion to suppress be denied and rejected Andrews' objections to the report and recommendation of the magistrate judge. Andrews argued that the issuing magistrate was not presented with sufficient evidence to find probable cause, and that the Leon good faith exception did not apply because Detective Gallegos intentionally or recklessly presented false information to the magistrate. See id. at 923, 104 S.Ct. 3405. Specifically, Andrews claimed that Detective Gallegos' affidavit incorrectly stated that the FedEx package was addressed to " 1528 Cashiers Ln Apt. # 9" when, in fact, the address written on the package was " 1528 Cashiers Ln Apt. # 7,"...

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