U.S. v. Hugoboom, s. 96-8050

• Citation: 112 F.3d 1081
• Decision Date: 02 May 1997
• Docket Number: 96-8062,Nos. 96-8050,s. 96-8050
• Parties: 97 CJ C.A.R. 657 UNITED STATES of America, Plaintiff-Appellee, v. David Earl HUGOBOOM, Tina Marie Insana, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1081

112 F.3d 1081

97 CJ C.A.R. 657

UNITED STATES of America, Plaintiff-Appellee, v. David Earl HUGOBOOM, Tina Marie Insana, Defendants-Appellants.

Nos. 96-8050, 96-8062.

United States Court of Appeals, Tenth Circuit.

May 2, 1997.

Donald E. Miller, Cheyenne, Wyoming, for appellant Hugoboom.

Andrea L. Richard, Rothgerber, Appel, Powers & Johnson, LLP, Cheyenne, Wyoming, for appellant Insana.

David A. Kubichek, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Casper, Wyoming, for appellee.

Before ANDERSON, Circuit Judge, BRISCOE, Circuit Judge, and McWILLIAMS, Senior Circuit Judge.

McWILLIAMS, Senior Circuit Judge.

Pursuant to Fed.R.Crim.P. 11(a)(2), David Earl Hugoboom and Tina Marie Insana entered conditional pleas of guilty to Counts 1 and 4 of a four-count indictment. Count 1 charged them with unlawfully manufacturing methamphetamine within 1,000 feet of an elementary school in Casper, Wyoming, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 860(a) and 18 U.S.C. § 2. Count 4 charged them with criminal forfeiture in violation of 21 U.S.C. § § 853(a)(1) and (a)(2). In thus pleading, Hugoboom and Insana, with the approval of the court and the consent of the government, reserved the right to appellate review of the district court's order denying their pretrial motions to suppress. Hugoboom and Insana appeal that order. ¹ We conclude that the district court did not err in denying the motions to suppress, and therefore affirm. Some background facts are necessary to an understanding of the issue here presented.

On January 17, 1996, United States Postal Inspector Alarick Holt was working at the Denver International Airport when he spotted what to him was a suspicious express mail parcel addressed to one Rick DeVoe, 1745 Pine Street, Casper, Wyoming 82604. ² Inspector Holt had that parcel, along with several others, subjected to a "sniff" by a narcotics detection dog named Chris. When Chris sniffed the parcel addressed to DeVoe, it began barking, biting and scratching at the parcel. As a result of Chris' reaction, Inspector Holt sought and obtained a search warrant to open and inspect the contents of the parcel from the Hon. David L. West, a United States Magistrate Judge sitting in Denver, Colorado.

After receiving the search warrant, Inspector Holt opened the parcel in question and found, inter alia, a silver colored bundle wrapped in duct tape shoved inside a stuffed gorilla. When opened, the packet revealed the presence of approximately 215 grams of a white powdery material. A "presumptive field test," a Scott Reagent test, indicated the presence of cocaine. The substance was retested on January 18, 1996, again using the Scott Reagent test, and that test also indicated the presence of cocaine. ³ However, in this appeal, neither Hugoboom nor Insana has challenged the validity of the warrant issued by the United States Magistrate Judge sitting in Denver, Colorado, authorizing Inspector Holt to open the parcel and inspect its contents.

On January 18, 1996, Inspector Holt contacted the Drug Enforcement Administration (DEA) office in Casper, Wyoming, and made arrangements to carry out a "controlled delivery" of the parcel to DeVoe at the Casper address. In connection therewith, Inspector Holt applied for and received an "anticipatory search warrant" from the Hon. John C. Brooks, a United States Magistrate Judge sitting in Casper, Wyoming. In his affidavit, Inspector Holt recited the statements previously made by him in his affidavit to the Magistrate Judge sitting in Denver. In addition, Inspector Holt set forth the results of the presumptive field test and indicated that he and DEA agents proposed to make a controlled delivery of the parcel to the named addressee. Inspector Holt also stated that "[i]n the light of the above circumstances, there may be practical difficulties in obtaining access to the Magistrate Judge in a timely fashion." Accordingly, he requested a search warrant to be issued with its execution contingent upon the delivery of the parcel to a responsible adult at the residence located at 1745 Pine Street, Casper, Wyoming, who willingly "accept[s] delivery" and signs a receipt therefor. On the basis of Inspector Holt's affidavit, Magistrate Judge Brooks issued a search warrant which both Hugoboom and Insana do challenge in this appeal.

But, there is still another search warrant in the case! After receiving the anticipatory search warrant on January 18, 1996, Inspector Holt, dressed as a postal carrier and arriving in an official postal vehicle, delivered the parcel to the residence at 1745 Pine Street. Inspector Holt knocked at the door and persons later identified as Rick DeVoe and David Hugoboom responded thereto. When Inspector Holt indicated that he had a parcel for a Rick DeVoe, the latter identified himself as DeVoe and signed a receipt for the parcel, which was handed to him. Inspector Holt then left the residence and went to a staging area where other officers were waiting. About fifteen minutes later, Inspector Holt, along with DEA agents and officers from the Casper Police Department, returned to the residence and executed the anticipatory search warrant.

Upon arriving back at the Pine Street address, Inspector Holt and the others began the search by first knocking at the door and announcing their presence, and thereafter entering the residence and conducting a protective sweep of the premises. During the course of the protective sweep, Hugoboom attempted, unsuccessfully, to leave the house via the back door. Tina Insana was found in the lower level of the residence.

During the ensuing protective sweep of the residence, Inspector Holt and others looked into a small storeroom through an open door where they saw glass jars containing various liquids, a large plastic container, numerous coffee filters, a Pyrex dish, a beaker, plastic tubing and the like. Based on their observations, Inspector Holt and a DEA agent consulted with the United States Attorney's office to determine whether the laboratory apparatus could be properly seized under the authority of the anticipatory search warrant. After concluding that the anticipatory search warrant was not sufficiently broad to warrant seizure of the laboratory items, Inspector Holt sought and received a third search warrant from Magistrate Judge Brooks authorizing seizure of the laboratory paraphernalia. In his affidavit, Inspector Holt recited much of which he and the other officers had seen while executing the second search warrant.

This third warrant, also issued on January 18, 1996, at about 4:52 p.m., resulted in the seizure, on the same day, of the methamphetamine laboratory. Subsequent to the execution of this third warrant, each of the three defendants, after being advised of their rights, confessed to DEA agents, in varying degrees, to manufacturing methamphetamine at the residence at 1745 Pine Street. However, neither Hugoboom nor Insana has challenged the third warrant in the present appeal.

At the hearing on the motions to suppress, the government called as witnesses Alarick Holt, the postal inspector; Kenneth Gurule, a Denver Police officer who was the handler of the dog which "sniffed" the package at Denver International Airport; George Angelos, a forensic scientist who testified that "presumptive examinations" were designed "to get a general idea as to what you might be dealing with" and were not "definitive"; and Steven Perkins, a DEA agent in Casper, Wyoming, who participated in the execution of the anticipatory search warrant and later interrogated DeVoe, Hugoboom and Insana. ⁴ Defendant Insana also testified at the suppression hearing, and stated that she packed the parcel addressed to DeVoe at the Casper address with ephedrine and that her sister mailed it.

In denying the two motions to suppress, the district court found, inter alia, that the warrant issued in Denver to search the package was based on probable cause and was "neither overbroad nor too general." The district court then went on to hold that the anticipatory search warrant issued in Casper, Wyoming, to search the premises located at 1745 Pine Street also was based on probable cause. In connection therewith, the court also stated that "[a] heightened standard, in my judgment, is not required for such a warrant." Further, the district court concluded that the anticipatory search warrant was "neither overbroad nor too general." Finally, the district court held that the third warrant was based on probable cause and was "properly issued and executed."

As indicated, in the present appeal, Hugoboom and Insana challenge only the second warrant, i.e., the anticipatory search warrant issued by Magistrate Judge Brooks in Casper Wyoming, on January 18, 1996. They argue that the anticipatory warrant violates the Fourth Amendment to the United States Constitution which prohibits "unreasonable searches and seizures" and requires that search warrants be issued only upon "probable cause." ⁵

In denying the defendants' motions to suppress, the district court held, inter alia, that on the record before it there was probable cause to issue the anticipatory search warrant and that it was not otherwise unconstitutional. And that basically is the only issue to be resolved on appeal. We agree with the district court.

In reviewing a district court's denial of a motion to suppress, we should view the evidence adduced at the hearing on the motion in a light most favorable to the government and we should review a district court's findings of fact only for clear error. United States v. Glover, 104 F.3d 1570, 1576 (10th Cir.1997); United States v. Alarcon-Gonzalez, 73 F.3d 289, 291 (10th Cir.1996). However, questions concerning the reasonableness of a search under the Fourth Amendment, and the existence, or non-existence, of probable cause, are subject to de novo review by us. United States v. Alvarez, ...