U.S. v. Garcia

• Decision Date: 15 August 1989
• Docket Number: 1306,G,1334,Nos. 1289,D,FIGUEROA-RIVER,s. 1289
• Parties: UNITED STATES of America, Appellee, v. GARCIA, et al., Defendants. Appeal of Jose A.abriel Grant, Celina Wilson-Grant, Defendants-Appellants. ockets 88-1499, 88-1509, 88-1510.
• Court: U.S. Court of Appeals — Second Circuit

Page 699

882 F.2d 699

58 USLW 2136

UNITED STATES of America, Appellee, v. GARCIA, et al., Defendants.

Appeal of Jose A. FIGUEROA-RIVERA, Gabriel Grant, Celina

Wilson-Grant, Defendants-Appellants.

Nos. 1289, 1306, 1334, Dockets 88-1499, 88-1509, 88-1510.

United States Court of Appeals, Second Circuit.

Argued June 16, 1989.

Decided Aug. 15, 1989.

Cheryl L. Baratta, New York City, for defendant-appellant Jose Figueroa-Rivera.

Donald L. Graham, Miami, Fla. (Raskin & Graham, Miami, Fla., of counsel), for defendant-appellant Celina Wilson-Grant.

Jesse Berman, New York City, for defendant-appellant Gabriel Grant.

Leslie R. Caldwell, Asst. U.S. Atty., for the Eastern District of New York (Andrew J. Maloney, U.S. Atty., for the Eastern District of New York, David C. James, Asst. U.S. Atty., of counsel), for appellee.

Before OAKES, Chief Judge, and VAN GRAAFEILAND and PRATT, Circuit Judges.

George C. PRATT, Circuit Judge:

The only issue worthy of extended discussion on this appeal is whether government agents may obtain from a magistrate an anticipatory search warrant conditioned upon future events which, if fulfilled, would create probable cause and allow a search of the premises identified in the warrant. Jose A. Figueroa-Rivera (Figueroa), Gabriel Grant, and Celina Wilson-Grant (collectively "the defendants") appeal from judgments after a jury trial before the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, convicting them of various narcotics offenses. On appeal, defendants raise a host of claims, none of which, with the exception of the anticipatory warrant issue, requires a formal opinion. We write therefore only to address whether an anticipatory warrant was proper here.

BACKGROUND

We recite only the facts necessary to our determination.

Defendants, participants in an operation which smuggled cocaine into the United States from Panama, were indicted in the Eastern District of New York for conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and cocaine importation.

Defendants' operation used as couriers military servicemen stationed in Panama. Periodically, when they obtained leave or came to the United States for government purposes, these couriers--including defendant Figueroa and two other servicemen, Darryl Hooks and Kendell Oliver--obtained the cocaine from Panamanian sources and then smuggled it through Miami to New York, where they delivered it to Grant, Wilson-Grant, or another codefendant in the case, Francisca Caballero.

On one of these courier runs in early February 1988, Hooks and Oliver arrived in Miami from Panama carrying a combined total of thirty-three kilograms of cocaine in their duffel bags. Customs officials noticed that the two servicemen appeared nervous, and after recognizing Oliver's name from a "customs alert list", searched both couriers and discovered the cocaine.

After being flown from Miami to New York to meet with DEA agents, Hooks and Oliver agreed to cooperate with the government and to proceed with a controlled delivery of the cocaine. They then telephoned Wilson-Grant at Caballero's apartment and, after convincing her that they had been legitimately delayed, made arrangements to bring the cocaine to her at that apartment.

On February 4, 1988, before Hooks and Oliver delivered the cocaine, and without any probable cause to believe that contraband was currently located on the premises, DEA agents applied for and received an anticipatory warrant to search Caballero's apartment for cocaine, traces of cocaine, currency, drug records, and narcotics paraphernalia. Execution of this warrant was "contingent upon the delivery of cocaine by [Oliver] and [Hooks]". With the cocaine still in the duffel bags, DEA agents then accompanied Hooks and Oliver to Caballero's apartment, and waited while the couriers approached the door.

After knocking for several minutes, Hooks and Oliver were admitted by Caballero's husband, who informed them that Wilson-Grant was not there, and who gave his permission for them to wait inside. They entered, sat down in the living room, and placed the duffel bags containing the cocaine next to them. Five to ten minutes later, while they were still waiting and before Wilson-Grant or anyone else had taken possession of the duffel bags, the DEA agents entered the premises, announced that they had a warrant to search the apartment, began their search in the living room, and seized the cocaine and duffel bags. Thereafter, upon further search of the apartment, DEA agents found Wilson-Grant in a bedroom and arrested her on drug-trafficking charges, and found other items, including airline stickers in Wilson-Grant's name and Panamanian newspapers.

Before trial, Wilson-Grant moved to suppress the items seized in the search, arguing first, that the anticipatory warrant was void because, at the time it was issued, there was no probable cause to believe that contraband was located in Caballero's apartment, and second, that even if the warrant was validly issued, the condition which governed its execution--that the cocaine be delivered to the premises--had not yet occurred when the DEA agents entered the apartment and conducted the search.

The district court rejected Wilson-Grant's arguments and denied the motion to suppress. At trial, when the evidence was offered by the government, Wilson-Grant renewed her objections, but Judge Sifton overruled them and allowed the items to be admitted.

The jury convicted Wilson-Grant on one count of conspiracy to import cocaine, three counts of cocaine importation, and two counts of possession of cocaine with intent to distribute. It also convicted the remaining defendants on various narcotic charges.

This appeal followed.

DISCUSSION

Wilson-Grant challenges the refusal of the district court to suppress the evidence obtained by the government agents when they searched Caballero's apartment pursuant to the anticipatory search warrant. Ordinarily, Wilson-Grant, who did not reside at the apartment, might lack standing to make this challenge for lack of any expectation of privacy in the premises. See Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980). At oral argument, however, the government conceded that it had not raised this standing issue in the district court; consequently, it waived the standing argument. See Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38 (1981) (factual question of whether defendant had reasonable expectation of privacy in the searched dwelling waived by government because it "failed to raise such questions in a timely fashion during the litigation"); cf. United States v. Persico, 832 F.2d 705, 715 n. 2 (2d Cir.1987) (where "government concedes that it did not raise [the] issue in the district court, and has offered no justification for its failure to do so" we will "deem the issue to be Wilson-Grant challenges the district court's failure to suppress on two fronts. First, she claims that anticipatory warrants are unconstitutional per se because they violate the fourth amendment's requirement that all warrants be based on probable cause. Second, Wilson-Grant argues that even if the warrant was valid when it was issued, the police executed the warrant prematurely when they entered and searched the apartment before Hooks and Oliver had delivered the cocaine to Wilson-Grant.

waived"), cert. denied, --- U.S. ----, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988).

A. The Constitutionality of the Anticipatory Warrant.

Relying upon several decisions holding that, before government agents may obtain a warrant to search a residence for stolen property, they must have probable cause to believe that this property "is located at the residence", see, e.g., United States v. Travisano, 724 F.2d 341, 345 (2d Cir.1983), Wilson-Grant argues that the magistrate invalidly issued the warrant to search Caballero's apartment because, at the time he did so, there was no probable cause to believe that the drugs were then located on the premises. As she correctly points out, the magistrate knew that the drugs were not yet at the apartment, because the affidavit stated that the police were still in possession of them, pending delivery by Hooks and Oliver. Thus, Wilson-Grant concludes, the magistrate violated the fourth amendment when he issued the anticipatory search warrant based, not upon present probable cause, but upon an expectation that, at some point in the future, probable cause would arise when the drugs would be delivered to Caballero's residence.

While there is authority in some other circuits for this position, see United States v. Hendricks, 743 F.2d 653, 654 (9th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985); United States v. Rundle, 327 F.2d 153, 163 (3d Cir.1964), we think it is unsound. An anticipatory warrant, by definition, is a warrant that has been issued before the necessary events have occurred which will allow a constitutional search of the premises; if those events do not transpire, the warrant is void.

This is not to say, however, that such warrants are not based on probable cause. To the contrary, when a government official presents independent evidence indicating that delivery of contraband will, or is likely to, occur, and when the magistrate conditions the warrant on that delivery, there is sufficient probable cause to uphold the warrant. United States ex rel. Beal v. Skaff, 418 F.2d 430, 433-34 (7th Cir.1969). Thus, 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 will be there when the search warrant is executed." 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); see United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir.1988), cert....