U.S. v. Johnson, 89-2060

• Decision Date: 08 August 1990
• Docket Number: No. 89-2060,89-2060
• Citation: 904 F.2d 443
• Parties: UNITED STATES of America, Appellee, v. Vernon Lorenzo JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 443

904 F.2d 443

UNITED STATES of America, Appellee, v. Vernon Lorenzo JOHNSON, Appellant.

No. 89-2060.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1990.

Decided May 31, 1990.

Rehearing Denied Aug. 8, 1990.

Frank Anzalone, Clayton, Mo., for appellant.

John E. Hall, St. Louis, Mo., for appellee.

Before ARNOLD, BOWMAN, Circuit Judges, and HUNTER, ^* District Judge.

BOWMAN, Circuit Judge.

Appellant Vernon Johnson was convicted after a jury trial of attempting to possess with intent to distribute more than five hundred grams of cocaine. 21 U.S.C. Secs. 841(a)(1), 846 (1988). Johnson appeals his conviction, arguing that the District Court ¹ should have excluded evidence taken from his home because agents of the Drug Enforcement Agency had seized the evidence after entering his home without a search warrant. The government argues that obtaining a warrant was infeasible and that the agents were compelled to enter without a warrant because of exigent circumstances. We affirm.

The investigation that led to Johnson's arrest began when a package sent in the overnight express mail from Los Angeles to St. Louis aroused the suspicions of a postal inspector in Los Angeles. After advising Inspector Hearne, the postal inspector in St. Louis, of his hunch that the package contained narcotics, the inspector in Los Angeles forwarded the package to St. Louis at Inspector Hearne's request. When the package arrived in St. Louis, Inspector Hearne arranged for a trained dog to sniff the package. On the basis of the dog's reaction, which indicated the presence of controlled narcotics, the inspector applied for and received a search warrant to open the package. Within the package he found a one kilo block of pure cocaine and two bottles containing one half of a kilo of procaine, a substance commonly used to dilute cocaine prior to distribution. The inspector then applied for and received a warrant to place a transmitting device inside the package in order to effect a controlled delivery. The original contents of the package were removed and the device was enclosed, along with a stack of index cards, a can of soda, and a bottle of Maalox meant to simulate the brick of cocaine and the bottles of procaine. Transcript Vol. I at 34-35.

At this point the postal inspector was joined by several agents from the Drug Enforcement Agency. Their plan to make a controlled delivery of the package was complicated by the fact that the package was improperly addressed. Johnson's counsel at trial described the opacity of the mailing label in her opening argument:

When the Express Mail package arrived in St. Louis it was addressed to a non-existant [sic] address or location. The address could not be located in a criss-cross directory. The Postal Service had to surmise what address this package should be delivered to. There are misspellings. The street is misspelled. The city is listed as Normandy and the state is listed as Lucas and Hunt. There are three very important errors just on the label.

Transcript Vol. I at 22. The address the agents settled on as that most similar to the one on the mailing label turned out to be Vernon Johnson's address. (The package was addressed to "Albert Nixson.") Over the course of the next three days the agents attempted four times to deliver the package to Johnson's address before the door was answered. The man who finally answered the door stated that Albert Nixson would be back soon and accepted the package, signing the name "J. Peters." About ten minutes after the package was delivered, the appellant was seen entering the apartment. A few minutes after that, two men, including the man who had signed for the package, departed.

Shortly thereafter, the agents monitoring the transmitter lost the signal completely. The transmitter was not a tracking device but, rather, had the capacity to indicate when the package was being opened by sending a more rapid signal. Because the transmissions from the device simply stopped altogether without indicating that the package had been opened, the agents became concerned that the device had been found and dismantled. If the occupants had found the transmitter, the agents feared that they would destroy other evidence. ² The agents, therefore, decided to enter the apartment. When in response to their loud knocks on the door and shouts of "Police! Open the door!" they heard only the sound of footsteps rapidly retreating from the door, they broke down the door with a battering ram and entered the apartment.

As the agents entered the apartment, Johnson emerged from the bathroom with his hands in the air. In the bathroom the agents found the index cards that had been planted in the package to simulate the cocaine brick in the original contents. The cards had been dumped in the commode and the brown paper wrapping discarded on the floor by its side. Immediately after entry, some of the agents had scanned the apartment for additional suspects. Although they found no one else in the apartment, during the course of this survey they did find and seize various drug paraphernalia that were in plain view.

Johnson argues that the evidence seized during this entry should have been excluded at trial because the agents entered without a warrant. He does not contest that the evidence taken was in the agents' plain view. Rather, he contends that the government's claim to exigent circumstances is inapposite because the agents could have obtained a warrant for a search of Johnson's home prior to their execution of the controlled delivery.

If the address on the package had identified a real person at an accurate address, Johnson would have at least a colorable claim. If, in addition, this package had not been the first shred of evidence suggesting the existence of a narcotics operation, but rather had arrived in the mail during the denouement of a governmental investigation of Johnson, he would have a compelling argument. Indeed, it would have been a serious omission for the agents not to have applied for a search warrant had they known in advance that Vernon Johnson was the intended recipient of the package; that he, or someone at that address, would be willing to accept delivery of the package; and that Johnson's apartment was in fact the situs of a drug operation. It also, we might add, would have been an omission completely incongruous with the agents' meticulous behavior in the investigation of this drug shipment up until that point. As is generally the case with stories that depend upon the concerted irrational behavior of multiple individuals, Johnson's description of events in this case does not conform to the facts.

The agents knew neither whether the address they credited the package label with describing was the intended address, nor whether the occupant of that address would be willing to accept the package. Secreting a transmitter within the package would have been rather redundant had there been no reason to doubt that the agents were delivering the package to its final destination. Moreover, there would have been no reason for the agents not to have applied for, and a magistrate not to grant, a search warrant. There was, however, a great deal of doubt surrounding the controlled delivery in this case because the agents were not at all sure where the final resting place of the package was to be. ³ Using hindsight as his handmaiden, Johnson attempts to obscure this uncertainty, but our task is to "judge the constitutionality of [the agents'] conduct in light of the information available to them at the time they acted," and not on the basis of what is known retrospectively. Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1987); see also United States v. Gallo-Roman, 816 F.2d 76, 80 (2d Cir.1987).

Johnson's suggestion that the agents had sufficient information for a warrant prior to the time the package was finally accepted at his address must fall before the Fourth Amendment's mandate that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched." U.S. Const. amend. IV. Had the agents obtained a general warrant based on the information they had prior to the controlled delivery and then filled in the remaining details at the time of execution, this Court would have been compelled to condemn their conduct as violative of the Warrant Clause. See Lo-Ji Sales v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323, 60 L.Ed.2d 920 (1979). Nor, it seems, could the agents simply have described the address they assumed had been intended, because "the information put forth [in a warrant affidavit must be] believed or appropriately accepted by the affiant as true," Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978), and the agents obviously had nontrivial doubts as to the intended mailing address of the package. In light of the false name given for the addressee and the numerous mistakes in the address itself these doubts were well-founded. The agents' assignation of Johnson's address to the package label is more properly described as their best guess than as an actual belief. Similarly, it is far from assured that a court would be willing to characterize this hunch as "appropriately accepted ... as true."

Perhaps more importantly, though, Johnson's address might have been only a receiving depot for a larger operation somewhere else. In a case remarkably similar to this one--and in which we recognized the existence of exigent circumstances--this Court stated that officers conducting an investigation "were not required to seek a warrant as soon as they had probable cause to suspect a conspiracy to distribute cocaine [but] could legitimately wait in order to gather additional evidence." United States v. Palumbo, 735 F.2d 1095, 1097 (8th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984). In that case, we...