U.S. v. Hernandez-Rodriguez

• Decision Date: 16 December 2003
• Docket Number: No. 02-1238.,02-1238.
• Citation: 352 F.3d 1325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Arturo Hernandez-Rodriguez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

352 F.3d 1325

UNITED STATES of America, Plaintiff-Appellee, v. Jose Arturo Hernandez-Rodriguez, Defendant-Appellant.

No. 02-1238.

United States Court of Appeals, Tenth Circuit.

December 16, 2003.

John W. Suthers, United States Attorney and James C. Murphy, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Richard A. Hostetler, Denver, Colorado, for Defendant-Appellant.

Before HARTZ, BALDOCK and McCONNELL, Circuit Judges,

McCONNELL, Circuit Judge.

An anticipatory search warrant is a "warrant which only becomes effective upon the happening of a future event" — often called the "triggering event" — which is, more often than not, the controlled delivery of drugs or other contraband by law enforcement officers. United States v. Hugoboom, 112 F.3d 1081, 1085 (10th Cir.1997). Anticipatory warrants are generally permissible under the Fourth Amendment, but care must be taken to describe the triggering event with sufficient specificity to ensure that any judgment call regarding probable cause is made by a neutral magistrate and not by the enforcing officer. This case raises the question whether a warrant that is to be executed when "delivery" of a package is "made" by an undercover officer posing as a UPS delivery man is sufficiently specific, and whether it is necessary that this language be contained in the warrant itself or papers attached to the warrant.^*

Background

The events leading up to the issuance of the warrant in question began on December 10, 1996, when federal and state Drug Task Force agents in Denver, Colorado received information from Drug Task Force agents in Cerritos, California regarding a suspicious UPS package. California authorities determined that the package had a fictitious return address and telephone number. They also found it suspicious that the package was sent via overnight mail costing $35.25, while the description of the package's contents was $90.00 in ceramics. The package was also wrapped tightly in brown paper with an abundance of tape, appearing to be overwrapped. The authorities in California forwarded the UPS package to Denver police, who worked with the state and federal Drug Task Force in Colorado. When the package arrived at Denver International Airport, task force agents brought in a trained narcotics canine which "alerted" to the package. Subsequently, a federal DEA agent, Special Agent Gregory B. Salazar, applied for and received a search warrant for the package from Denver County Court Judge Bowers. Upon investigation, the officers found that the package contained three kilograms of cocaine.

After the agents determined that the package contained drugs, they made an application to Judge Bowers for a warrant to search the residence to which the package was addressed. The package was addressed to a Terry Rivera, residing at 4260 Perri Street, Denver, Colorado. Agents noted that Denver contains no street named "Perri" and therefore sought a search warrant for 4260 Perry Street. The affidavit from Agent Salazar, supporting the warrant, described the circumstances surrounding the discovery and search of the package. It explained that the package was currently in the possession of police officers, and that Detective Ketcher of the Denver Narcotics Task Force intended to make a controlled delivery of the package to the residence. The affidavit further stated that it was Agent Salazar's experience that persons trafficking in narcotics and receiving such packages commonly also possess other controlled substances, weapons, paraphernalia, drug transaction ledgers and records, and assets, including currency. The affidavit requested that a search warrant be granted for 4260 Perry Street in order to search for "additional evidence in regards to the violations of the Colorado Revised Statutes concerning controlled substances, when the delivery is made by Det. Kechter." Judge Bowers issued the search warrant. The warrant itself did not set forth the condition precedent for execution of the warrant — namely, "when the delivery is made by Det. Kechter" — but it "incorporated by reference" Agent Salazar's affidavit, which contained this instruction.

The officers executed the search warrant for the residence on the morning of December 11, 1996. Detective Kechter, dressed as a UPS driver, went to 4260 Perry Street and knocked on the door. A young woman, later identified as Aracely Rodriguez-Rios, answered the door. It seemed to Detective Kechter that the woman did not speak English, but they apparently were able to communicate in a limited manner. Ms. Rodriguez-Rios signed for the package, signing the name addressed: "Terry Rivera." After delivery of the package, the agents executed the warrant. In their search of the residence, they found two other occupants — including Appellant Jose Arturo Hernandez-Rodriguez — as well as two large soap boxes containing between two and four pounds of methamphetamine. Agents also located two plastic bags containing cocaine, which had Mr. Hernandez-Rodriguez's fingerprints on them.

Mr. Hernandez-Rodriguez was subsequently charged in a two count indictment with one count of conspiracy to possess with intent to distribute cocaine, and a second count of conspiracy to possess with intent to distribute methamphetamine, both in violation of 21 U.S.C. §§ 841 and 846. Mr. Hernandez-Rodriguez was found guilty by a jury on both counts in a trial in the District of Colorado. The district court granted a post-trial motion for acquittal on the second count, but found the methamphetamine involved to be relevant to sentencing factors. Mr. Hernandez-Rodriguez was ultimately sentenced to 235 months in prison.

Prior to his trial, Mr. Hernandez-Rodriguez moved to suppress evidence gathered pursuant to both the search warrant of the UPS package and the search warrant for the residence on Perry Street. The district court denied both motions. It is only the second search warrant, of the residence, that is at issue in this appeal. The principal issue raised by Mr. Hernandez-Rodriguez in district court was whether the evidence concerning the drug package provided probable cause to justify a search of the entire home. He did not raise the issue posed by this appeal: whether the warrant and affidavit for search of the residence articulated the condition precedent for execution of the warrant with sufficient specificity. The district court, however, raised this issue sua sponte. The court concluded:

I'm not going to suppress it because one sentence, the last sentence of the affidavit: "In order to search for additional evidence when delivery is made by Detective Kechter." There is a condition precedent. But boy, you are so close, in my opinion it could go either way.

App., Vol. II, at 105.

On appeal, Mr. Hernandez-Rodriguez presents two arguments relating to the anticipatory warrant. First, he argues that "[t]he search warrant for the residence was not a valid anticipatory warrant because neither the warrant nor the affidavit in support of the warrant set forth a sufficient description of the triggering event as determined by the issuing magistrate." Second, he argues that the warrant was legally insufficient because the warrant itself did not describe the triggering event, nor was the affidavit describing the triggering event attached to the warrant at the time it was executed. Aplt. Br. 2. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the district court's denial of Mr. Hernandez-Rodriguez's motion to suppress, as well as his conviction and sentence.

Analysis

I. Standard of Review

We confront at the outset the standard of review to be applied to the decision below. As already noted, Mr. Hernandez-Rodriguez did not raise before the district court the issues he now pursues on appeal. Ordinarily, appellate courts will not consider arguments for the first time on appeal, and can do so only if the record is sufficiently developed; when an appellate court reaches an issue not raised below, review is for plain error. See, e.g., United States v. Avery, 295 F.3d 1158, 1182 (10th Cir.2002). With respect to his first issue, however, the district court raised the issue sua sponte and decided the question explicitly on the merits. As to the second issue, there was no ruling by the district court.

We conclude that when the district court explicitly resolves an issue of law on the merits, the appellant may challenge that ruling on appeal even if he failed to raise the issue in district court. In such a case, review on appeal is not for "plain error," but is subject to the same standard of appellate review that would be applicable if the appellant had properly raised the issue. Thus, we review de novo the district court's determination that the warrant was sufficiently specific with respect to the triggering event. In reviewing the district court's denial of the motion to suppress, we accept the district court's "factual findings and view the evidence in the light most favorable to the government." United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir.1998) (citing United States v. Dahlman, 13 F.3d 1391 (10th Cir.1993)). With respect to the second issue, which was neither raised by Appellant nor resolved by the district court, we review for plain error. "Under this standard, reversal is warranted only where there is: (1) an error; (2) that is plain or obvious; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Avery, 295 F.3d at 1182 (citation omitted).

It may seem counterintuitive that we would apply a more exacting standard of review when a diligent district court judge thinks to raise and resolve an issue that a party neglected to raise on its own behalf. This may seem to fall into the all-too-familiar category of "no good deed goes unpunished." But the reasons for requiring a party to raise issues before the district court are to give that...