U.S. v. Leidner

• Decision Date: 09 December 1996
• Docket Number: No. 96-1570,96-1570
• Citation: 99 F.3d 1423
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles H. LEIDNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1423

99 F.3d 1423

UNITED STATES of America, Plaintiff-Appellant, v. Charles H. LEIDNER, Defendant-Appellee.

No. 96-1570.

United States Court of Appeals Seventh Circuit.

Argued Aug. 6, 1996.

Decided Nov. 7, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 9, 1996.

Thomas Edward Leggans (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellant.

J. William Lucco (Argued), Lucco, Brown & Mudge, Edwardsville, IL, Jane M. Lawinger, Lefevre, Zeman, Oldfield & Schwarm, Vandalia, IL, for Defendant-Appellee.

Before BAUER, MANION, and DIANE P. WOOD, Circuit Judges.

BAUER, Circuit Judge.

The government appeals the district court's decision granting a motion filed on behalf of defendant Charles H. Leidner ("Leidner") to quash an anticipatory search warrant and suppress evidence seized from Leidner's residence in violation of the Fourth Amendment. Based on the totality of the circumstances, we find that the search warrant was a valid anticipatory search warrant and was supported by probable cause, and therefore, we reverse the decision below.

I. Background

On October 15, 1995, Steven Sapp ("Sapp") was stopped in Missouri by a state trooper for a traffic violation. During the stop, the patrolman discovered that Sapp was transporting 200 pounds of marijuana in the trunk of the car he was driving. Upon being arrested, Sapp revealed that he rented the car for purposes of transporting marijuana from Texas to Leidner's residence in rural Fayette County, Illinois. He alleged that Leidner agreed to pay him to make the delivery. He further admitted to successfully making and being paid by Leidner for such deliveries on previous occasions. After incriminating himself, Sapp agreed to assist the authorities by showing them where he was supposed to deliver the drugs and by wearing a recording device during the controlled delivery to Leidner's residence in Fayette County. After verifying that the car was rented, the Missouri police contacted Inspector Kelvin Worker ("Worker") of the Southeastern Illinois Drug Task Force. Worker acknowledged that Sapp was a local Fayette County resident known to Worker. Worker then spoke with Sapp on the telephone to confirm Sapp's arrest and that Sapp had agreed to cooperate by participating in a controlled delivery of the marijuana to Leidner's home.

Subsequently, Worker signed, verified, and submitted a "Complaint for Search Warrant" to a Fayette County Circuit Court Judge, James R. Harvey ("Judge Harvey"). This sworn complaint or warrant affidavit averred that Worker had probable cause to believe that marijuana would be located at Leidner's residence based on the information obtained from Sapp (identified as "John Doe" in the complaint) during the traffic stop by the Missouri police. More specifically, the complaint avouched that "John Doe was in the process of delivering said cannabis to Charles Leidner at Leidner's residence;" that Worker considered the informant's statements to be reliable since they were offered against the informant's penal interest; and that Doe "agreed to cooperate with law enforcement personnel ... and is expected to deliver said cannabis to Charles Leidner's residence located in rural Fayette County, Illinois today being October 15, 1995." (Gov.'s Br.App. A-1). After reviewing this sworn complaint, Judge Harvey issued a search warrant authorizing a search of Leidner's residence. (Gov.'s Br.App. A-3). According to the government, the judge orally ¹ (though he did not so specify in the warrant) instructed the officers to execute the warrant only after Sapp made the delivery.

Although Leidner was not home when Sapp delivered the marijuana to Leidner's residence later that same evening, another person at the residence, James Thompson, helped Sapp unload the marijuana and then telephoned Leidner. Sapp then left and the officers waited until Leidner returned, approximately forty-five minutes later, to execute the search warrant. They subsequently arrested Leidner after finding at his residence the earlier-delivered marijuana along with lighted marijuana cigarettes, a firearm, ammunition, and Thompson.

On November 20, 1995, a federal grand jury in the Southern District of Illinois indicted Leidner for conspiracy to distribute marijuana and possession with intent to distribute marijuana. On January 12, 1996, the defendant, through counsel, filed a Motion to Suppress, alleging (1) that the search warrant was an unconstitutional anticipatory search warrant, ² and (2) that the search warrant insufficiently identified the place to be searched. The court rejected the second ground but agreed that the anticipatory search warrant was constitutionally defective. The court found the warrant's "fatal defect" was its lack of any specified requirement that the drugs be delivered prior to execution of the warrant. (R. at 57). The court also rejected the government's argument that any defect in the warrant was cured by the officers' good-faith and justifiable reliance on the warrant. Id. On appeal, the government challenges both of these latter rulings.

II. Probable Cause for Anticipatory Search Warrant

In Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), the Court held, as a general matter, that Fourth Amendment probable cause determinations are to be reviewed de novo. "Having said this, [the Court] hasten[ed] to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. This circuit has recently acknowledged the application of Ornelas to Fourth Amendment warrant cases. United States v. Navarro, 90 F.3d 1245, 1251 (7th Cir.1996).

Anticipatory search warrants are peculiar to property in transit. Such warrants are issued in advance of the receipt of particular "property" (usually contraband) at the premises designated in the warrant based on probable cause that the property will be located there at the time of the search. See United States v. Gendron, 18 F.3d 955, 964 (1st Cir.), cert. denied, 513 U.S. 1051, 115 S.Ct. 654, 130 L.Ed.2d 558 (1994). As one commentator put it:

[A]s a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be searched at the place to be searched.

2 Wayne R. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed.1987). This circuit has long recognized the constitutionality of such warrants. See United States ex rel. Beal v. Skaff, 418 F.2d 430, 434 (7th Cir.1969) [hereinafter Beal]. Illinois courts have likewise noted that "the objective of the fourth amendment is better served by allowing the police to obtain a warrant in advance of delivery, rather than have the police go to the scene and proceed under the exigent circumstances exception to the warrant requirement." People v. Ross, 267 Ill.App.3d 711, 205 Ill.Dec. 49, 54, 642 N.E.2d 914, 919 (1994) (citations omitted).

While acknowledging that anticipatory search warrants are not per se unconstitutional, Leidner contends that the warrant here was unconstitutional because (1) it lacked an explicit statement that delivery of the marijuana was a condition precedent to its execution, and (2) because the complaint (or warrant affidavit) failed to establish an independent connection or "nexus" between Leidner's residence and the contraband found within, ³ and (3) the complaint failed to demonstrate that the marijuana was on a "sure course" to Leidner's residence. (Def.'s Br. at 9). The government resolutely seeks reversal of the district court's suppression ruling, arguing that " '[c]ontraband does not have to be presently located at the place described in the warrant if there is probable cause to believe that it will be there when the search warrant is executed.' " (Gov.'s Br. at 7) (citing United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.1978)). The government also contends that the warrant's lack of an explicit conditioning statement is not a constitutional defect and, in any event, is of no significant consequence since the judge verbally advised the officers at the hearing to wait until delivery before executing the search and since the officers, in fact, understood and abided by these admonitions. Id.

First, we consider whether the district court erred in holding that the warrant's "fatal defect" was its failure to explicitly limit its execution until after the delivery occurred. Although approving the use of anticipatory warrants as early as 1969 in Beal, 418 F.2d at 434, the Seventh Circuit has sparingly addressed the question of appropriate safeguards. In Beal, the magistrate issued a search warrant pursuant to an affidavit from the district attorney stating that a parcel believed to contain marijuana was in the post office and would be delivered to the defendant's residence. Id. at 433. The defendant challenged the warrant noting that there were no facts before the magistrate to support the belief that an offense "has been or is being committed." Id. at 433. The court upheld the anticipatory warrant finding little doubt that the warrant would be executed after delivery of the parcel. See id. Notably, the court did not address the issue of whether the Constitution requires the search warrant or the warrant affidavit to explicitly condition the search upon delivery of the contraband to the stated residence. See id.

In a subsequent case, this court focused on the language in the affidavits submitted with the anticipatory warrant request. See United States v. Odland, 502 F.2d 148 (7th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed.2d 680 (1974). Odland upheld the warrant noting that the affidavits...