U.S. v. Templeman, 90-2337

• Decision Date: 08 July 1991
• Docket Number: No. 90-2337,90-2337
• Citation: 938 F.2d 122
• Parties: UNITED STATES of America, Appellee, v. Charles Dwain TEMPLEMAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 122

938 F.2d 122

UNITED STATES of America, Appellee, v. Charles Dwain TEMPLEMAN, Appellant.

No. 90-2337.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1991.

Decided July 8, 1991.

Philip F. Miller, Des Moines, Iowa, for appellant.

Lester A. Paff, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

HENLEY, Senior Circuit Judge.

Appellant, Charles Dwain Templeman, entered a conditional guilty plea to a charge of conspiracy to distribute cocaine. The condition hinged upon the district court's ruling on Templeman's motion to suppress certain evidence seized from his home at the time of his arrest. The district court denied Templeman's motion and imposed sentence, so he now appeals that ruling to this court. Because there are insufficient findings in connection with the affidavit supporting the search warrant for Templeman's home, we remand to the district court for further action.

On October 6, 1989 a package addressed to Dwight Stowe was intercepted and opened by postal inspectors pursuant to a search warrant. The package contained a white, powdery substance which field tested positive for cocaine. When law enforcement officers confronted Stowe with these facts, he agreed to cooperate with them. He informed the officers that he generally delivered packages like this one to Templeman either at Templeman's home or place of business. Officers then replaced most of the cocaine in the package with corn starch. Pursuant to a court order, they also inserted a small beeper, about the size of a credit card, in the package so that the tone emitted by the beeper would change when the package was opened. The tone was only audible to officers who possessed equipment for receiving it.

Under the officers' surveillance, Stowe then delivered the package to Templeman at his trailer home. Stowe was "wired" so that the officers could hear any conversation between Stowe and Templeman. When the beeper tone changed, indicating that the package had been opened, the officers immediately rushed the trailer and identified themselves. Through a window in the trailer, they saw Templeman run towards the rear of the trailer, so the officers forced open the door. They quickly arrested Templeman and made a security sweep and quick search of the entire trailer. The only evidence they seized during this search was the package wrapping and the beeper, both of which were in plain view. When Templeman refused to consent to a search of his home, the officers presented an affidavit to a Cass County, Iowa magistrate who issued a search warrant. Two hours elapsed from the time of the officers' initial entry to the time of the second search made pursuant to the search warrant. During the execution of the warrant, officers discovered the contents of the package and several weapons.

Templeman claims that the officers violated his fourth amendment rights by breaking into his home without a search warrant or exigent circumstances. We address first the officers' initial entry and search. The district court found that Templeman's flight from the officers, the need to protect Stowe from possible harm, and the fact that the package had been opened so that its contents could be quickly destroyed, constituted exigent circumstances sufficient to justify the officers' entry.

In an attempt to persuade us that exigent circumstances existed in this case, the government cites United States v. Johnson, 904 F.2d 443 (8th Cir.1990), as being substantially similar to the case at hand. We disagree. There are some similarities between the cases, but Johnson is clearly distinguishable. Judge Bowman, writing for the majority in Johnson, made clear that a primary factor of the exigent circumstances in that case arose out of the uncertainty of the address on the package containing drugs.

Indeed, it would have been a serious omission for the agents not to have applied for a search warrant had they known in advance that Vernon Johnson was the intended recipient of the package; that he, or someone else at that address, would be willing to accept delivery of the package; and that Johnson's apartment was in fact the situs of a drug operation.... The agents knew neither whether the address they credited the package label with describing was the intended address, nor whether the occupant of that address would be willing to accept the package. Secreting a transmitter within the package would have been rather redundant had there been no reason to doubt that the agents were delivering the package to its final destination. Moreover, there would have been no reason for the agents not to have applied for, and a magistrate not to grant, a search warrant.

Johnson, 904 F.2d at 445.

Here, the officers knew that Templeman would receive the package, that he would most likely accept delivery of it, and that Templeman's home was likely a place of drug activity. The placement of the beeper was superfluous and cannot serve as a foundation for exigent circumstances. We simply do not understand why the officers did not apply for a search warrant before sending Stowe into the trailer home.

A case we find much more similar to this one is United States v. Duchi, 906 F.2d 1278 (8th Cir.1990). That case involved a package in which law officers discovered cocaine. The officers removed half of the cocaine and replaced it with a book. After having narrowed the suspects under investigation to two people living at the same address, the officers allowed one of the suspects to pick up the package and, under surveillance, take it home. Ten minutes after the suspect arrived home, the police entered the house without a warrant, announced their intentions, and conducted a security sweep of the home. After repeated requests, one of the suspects signed a form purporting to permit the...