998 F.2d 8 (1st Cir. 1993), 92-1424, United States v. Ricciardelli

Docket Nº:92-1424.
Citation:998 F.2d 8
Party Name:UNITED STATES of America, Appellee, v. Steven RICCIARDELLI, Defendant, Appellant.
Case Date:June 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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998 F.2d 8 (1st Cir. 1993)

UNITED STATES of America, Appellee,


Steven RICCIARDELLI, Defendant, Appellant.

No. 92-1424.

United States Court of Appeals, First Circuit

June 22, 1993

Heard Jan. 5, 1993.

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John H. LaChance, with whom LaChance & Whatley, Framingham, MA, was on brief, for defendant, appellant.

Robert E. Richardson, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for appellee.

Before TORRUELLA, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Steven Ricciardelli was convicted at a bench trial of violating 18 U.S.C. § 2252(a)(2) (1988), a statute that criminalizes the knowing receipt through the mails of a "visual depiction [that] involves the use of a minor engaging in sexually explicit conduct...." Ricciardelli appeals, contending that the district court erred in denying his motion to suppress evidence obtained pursuant to the execution of an anticipatory search warrant. We conclude that, although the Constitution does not altogether proscribe the use of such anticipatory warrants, the warrant employed here was constitutionally infirm. We, therefore, reverse.


In 1988, Houston police breathed life into a moribund child pornography investigation by giving federal postal inspectors a customer list unearthed during a 1975 probe of a suspected pornography distributor. Appellant's name appeared on the list. The postal inspectors subsequently spawned a fictitious "front" company, Globe-Tex Specialties, and targeted Ricciardelli in a sting operation. After preliminary correspondence elicited interest on Ricciardelli's part, Globe-Tex sent him a catalog from which he ordered several videotapes. Globe-Tex notified him that only one tape was immediately available and promised to mail it forthwith.

On the day prior to the scheduled delivery, the postal inspectors applied for, and a magistrate judge issued, a search warrant. The warrant authorized the investigators to search appellant's residence for, inter alia, correspondence, documents, and objects related to contacts with either Globe-Tex or the Houston pornography dealer. By its express terms, the search warrant would "not be effective until after delivery by mail to and receipt by Steven L. Ricciardelli of the ... package containing the videotape."

The day after the warrant was issued, postal inspectors gave the package containing the videotape to the local post office for delivery. A return receipt, affixed to the parcel, required that appellant sign for it. The letter carrier tried to deliver the package that day but appellant was not home.

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Following standard practice, the postman left a notice on the premises indicating that appellant could collect the item at the post office. That afternoon, appellant retrieved the package and returned to his home. About thirty minutes later, postal inspectors executed the warrant, recovering the videotape, some correspondence, and a number of other films and magazines not mentioned in the warrant.

Appellant was indicted. The district court summarily denied his motion to suppress the materials seized from his dwelling. Subsequently, appellant stipulated to the pertinent facts and the judge found him guilty. This appeal ensued.


We divide our analysis of this case into segments. We first discuss the constitutionality of anticipatory search warrants as a general matter. We then turn to specifics, discussing certain alleged deficiencies in the warrant obtained by the postal inspectors. We end by addressing the government's contentions that appellant's submissiveness and/or the postal inspectors' good faith palliated any defects in the warrant.

  1. Anticipatory Search Warrants.

    At the outset, appellant seeks to bowl a ten-strike: he asks us to rule that so-called anticipatory search warrants are per se unconstitutional. This initiative presents a question of first impression in this circuit. 1

    Anticipatory search warrants are peculiar to property in transit. Such warrants provide a solution to a dilemma that has long vexed law enforcement agencies: whether, on the one hand, to allow the delivery of contraband to be completed before obtaining a search warrant, thus risking the destruction or disbursement of evidence in the ensuing interval, or, on the other hand, seizing the contraband on its arrival without a warrant, thus risking suppression. Anticipatory warrants--warrants that are issued in advance of the receipt of particular property at the premises designated in the warrant 2--strike a third chord, protecting privacy rights by requiring advance judicial approval of a planned search while simultaneously satisfying legitimate law enforcement needs. See United States v. Garcia, 882 F.2d 699, 703 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); see also 2 Wayne LaFave, Search and Seizure § 3.7(c), at 97 (1987).

    Appellant's constitutional challenge to the use of anticipatory warrants proceeds under the aegis of the Fourth Amendment. His theory is epibolic. First, he remarks the obvious--that a warrant can issue only "upon a showing of probable cause," U.S. Const. Amend. IV--and interprets this as requiring probable cause to believe that the contraband to be seized is in the place to be searched at the time a warrant issues. He then erects a second proposition on this problematic pedestal, professing that a magistrate can have no constitutionally sufficient basis for issuing a warrant at a time when the contraband is elsewhere and, presumably, probable cause does not exist. In our view, appellant's theory misconstrues the meaning of probable cause.

    The probable cause doctrine does not require that the contraband to be seized must presently be located at the premises to be searched, only that there is probable cause to believe that a crime has been (or is being) committed and that evidence of it can likely be found at the described locus at the time of the search. See United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.1987). "Probability is the touchstone [of probable cause]...." United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (collecting cases). In the stereotypical case, an item's current location creates a probability that it will be at the same location when the search is executed--but there are no guarantees.

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    The suspect might move or destroy the contraband before the warrant is executed. Nevertheless, so long as the requisite probability exists, the possibility that things might go awry does not forestall the issuance of a warrant. After all, "[p]robable cause need not be tantamount to proof beyond a reasonable doubt." United States v. Hoffman, 832 F.2d 1299, 1305-06 (1st Cir.1987); accord Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (requiring "a fair probability that contraband ... will be found in a particular place"); United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.1990) (collecting cases).

    Seen from this perspective, it is difficult to discern the constitutional objection to an anticipatory warrant. In many cases, the facts put forward in support of an anticipatory search warrant predicated on the planned delivery of contraband to a particular location establish a greater likelihood that the contraband will be found there at the time of the search (which will be contemporaneous with the arrival of the contraband, or nearly so) than do facts put forward in support of a more conventional search warrant predicated on the known recent location of contraband at the proposed search site. Moreover, the method of the Fourth Amendment--inserting a neutral, detached judicial officer as a buffer between a citizen's privacy rights and potential government overreaching--works equally as well in connection with anticipatory warrants. In either instance, contemporary or anticipatory, the focal point of the magistrate's inquiry is whether there is probable cause to think that the contraband will be at the place to be searched at the time of the contemplated intrusion. That the event justifying the intrusion has not yet occurred does not distort the decisionmaking process. Rather, the magistrate must simply widen his horizons to take into account the likelihood that the triggering event will occur on schedule and as predicted in making his probable cause determination. 3

    Mindful of these considerations, we find it unsurprising that every circuit to have addressed the question has held that anticipatory search warrants are not categorically unconstitutional. See, e.g., United States v. Tagbering, 985 F.2d 946, 950 (8th Cir.1993); United States v. Wylie, 919 F.2d 969, 974-75 (5th Cir.1990); United States v. Goodwin, 854 F.2d 33, 36 (4th Cir.1988); United States v. Goff, 681 F.2d 1238, 1240 (9th Cir.1982); United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.), cert. denied, 439 U.S. 869, 99 S.Ct. 198, 58 L.Ed.2d 180 (1978); United States ex rel. Beal v. Skaff, 418 F.2d 430, 432-33 (7th Cir.1969); see also United States v. Nixon, 918 F.2d 895, 903 n. 6 (11th Cir.1990) (dictum). We, too, believe that there is no Fourth Amendment infirmity indigenous to anticipatory search warrants--although such warrants must, of course, be issued under proper circumstances, upon a proper showing, and with proper safeguards. We hold, therefore, that when law enforcement personnel offer a magistrate reliable, independent evidence indicating that a delivery of contraband will very likely occur at a particular place, and when the magistrate conditions the warrant's execution for the search of that place on that delivery, the warrant, if not overbroad or otherwise defective, passes constitutional muster. That the contraband has not yet reached the...

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