985 F.2d 946 (8th Cir. 1993), 92-1926, United States v. Tagbering

Docket Nº:92-1926.
Citation:985 F.2d 946
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gary F. TAGBERING, also known as Richard W. Gaines, Defendant-Appellant.
Case Date:February 01, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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985 F.2d 946 (8th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gary F. TAGBERING, also known as Richard W. Gaines,

Defendant-Appellant.

No. 92-1926.

United States Court of Appeals, Eighth Circuit

February 1, 1993

Submitted Sept. 18, 1992.

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[Copyrighted Material Omitted]

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Christopher Harlan, Kansas City, MO, argued, for appellant.

Christina Y. Tabor, Kansas City, MO, argued, for appellee.

Before McMILLIAN, WOLLMAN, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

After entering a conditional plea of guilty to narcotics and firearms charges, Gary F. Tagbering appeals the district court's 1 denial of his motion to suppress evidence seized after police arranged for a controlled delivery of narcotics and obtained an "anticipatory" warrant to search his apartment for the narcotics and for drug trafficking records and paraphernalia. We affirm.

I.

On August 8, 1991, a package mailed fro Montego Bay, Jamaica, to "Kim Smart c/o Gary Tagbering, 10557 Cypress, Apt. D, Kansas City, Missouri" was routinely inspected by the U.S. Customs Service in Miami. The package contained 900 grams of hashish oil and 142 grams of marijuana stuffed inside a toy. The Customs Service notified the Kansas City police and mailed the package in a locked mail pouch to the Postal Inspection Division of the Kansas City Post Office. Postal inspectors met with Kansas City police, replaced most (but not all) of the narcotics with look-alike substances, and resealed the package in preparation for a controlled delivery.

After determining by surveillance that 10557 Cypress appeared to be an occupied apartment complex, Kansas City police detective Charles Scudder prepared a form of search warrant and an accompanying affidavit, had these documents reviewed and signed by a county prosecutor, and presented them to Jackson County Associate Circuit Judge Robert Ianonne. Scudder's three-page affidavit reported his surveillance of the Cypress address and described in detail the package and its contents, the chemical testing of the narcotics, and the postal inspectors' preparations for a controlled delivery. The affidavit concluded:

Detective Scudder anticipates that the controlled delivery of the package to 10557 Cypress, Apt. D, will occur on 8-16-91. If delivery does not occur on 8-16-91 a second delivery attempt will be made to deliver the package on 8-17-91. Surveillance of the address at 10557 Cypress, Apt. D, will be conducted by members of the Kansas City, Missouri Police Department to observe the delivery and acceptance of the package.

Detective Scudder knows from experience that drug traffickers frequently maintain at the same location scales, additives and packaging items for narcotics. Dealers in narcotics also frequently maintain notebooks and informal ledgers pertaining to the sale of narcotics.

Detective Scudder further states that the warrant sought herein ... "will not" be executed unless the delivery occurs and the package is accepted.

Judge Ianonne issued the search warrant on August 14. The warrant recited "that there is PROBABLE CAUSE to believe that [the package] will be delivered through a controlled delivery." It authorized the search of 10557 Cypress, Apt. D, for the package and for "any records reflecting drug trafficking and/or any drug paraphernalia."

Early in the afternoon of August 16, a mail carrier brought the package to 10557 Cypress. Tagbering came out of the building, accepted the package, and walked back inside. Police Sgt. James Barbee, parked

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fifty yards north of the building, radioed word of the completed delivery to officers waiting in a van several blocks away. The van arrived on the scene within five minutes.

The first officer to arrive announced himself as a police officer with a search warrant, opened the unlocked door, and arrested Tagbering, who was standing inside Apartment D with his arms held above his head. Other officers from the "entry team" entered, found the unopened package on a kitchen counter, and secured the apartment by sweeping through it briefly to eliminate any threats to their safety. When the apartment was secure, officers from the "search team" entered to execute the search warrant. They seized a loaded .16 gauge shotgun, a loaded .38 pistol, Jamaican currency, numerous items of drug paraphernalia, and a telephone calling card and a driver's license issued to "Richard Gaines," the name above a fictitious return address on the package.

Tagbering was indicted for violations of 21 U.S.C. §§ 841(b)(1)(D), 846, and 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(c). He moved to suppress the evidence recovered from his apartment. After a two-day evidentiary hearing, the magistrate judge 2 recommended that the motion be denied, concluding that the warrant to search for and seize the package was based upon probable cause, that probable cause was lacking for the remainder of the warrant, but that the additional items seized should not be suppressed "based upon the good faith exception provided for in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)." The district court adopted these findings and conclusions and denied the motion to suppress. Tagbering then entered his conditional plea of guilty to two counts of the indictment, was sentenced to 120 months in prison, and appealed.

II.

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." To find probable cause to issue a warrant, the issuing magistrate must determine that, "in light of all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Martin, 866 F.2d 972, 976 (8th Cir.1989). In determining for suppression purposes the validity of the state court warrant to search Tagbering's apartment, 3 the issue for the district court was whether Judge Ianonne had a "substantial basis" for his probable cause determination. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Our review of that determination must be equally deferential. See United States v. Hibbard, 963 F.2d 1100 (8th Cir.1992); United States v. Anderson, 933 F.2d 612, 614 (8th Cir.1991).

On appeal, Tagbering notes that this court has not had occasion to consider the validity of an "anticipatory" warrant--one that is issued before the item to be seized has arrived at the place to be searched. 4 However, at least six other circuits have upheld such warrants. 5 As the

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Second Circuit explained in 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), "the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it...

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