U.S.A. v. Limares

• Decision Date: 13 November 2001
• Docket Number: No. 00-3560,00-3560
• Citation: 269 F.3d 794
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Luis C. Limares, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 794

269 F.3d 794 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Luis C. Limares, Defendant-Appellant.

No. 00-3560

United States Court of Appeals Seventh Circuit

Argued September 28, 2001

Decided October 16, 2001

Rehearing and Rehearing En Banc Denied November 13, 2001

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:99-CR-6--William C. Lee, Chief Judge. [Copyrighted Material Omitted] Before Posner, Easterbrook, and Kanne, Circuit Judges.

Easterbrook, Circuit Judge.

Postal inspectors detected a suspicious parcel bound from Ft. Wayne, Indiana, to Fresno, California. Wendy, a drug-detection dog, gave an alert that served as the basis for a search warrant. The package turned out to contain $18,000 in currency and was sent on its way. The next day the inspectors came upon a package mailed in Fresno and bound for Ft. Wayne. Again Wendy alerted. A second warrant was obtained. This package contained more than four pounds of methamphetamine. Most of this was replaced by an inert look- alike but some was left for a controlled delivery; the postal inspectors added a radio transmitter that would signal the package's location and whether it had been opened.

The drug-bearing package was addressed to Ramon Lopez at 148 E. Leidh Street in Ft. Wayne. The address was misspelled (it should have been Leith Street) and the sender's name was fictitious. Agents obtained a third search warrant--an anticipatory authorization to enter 148 Leith St. after the delivery and opening of the package. Baltazar Ramirez signed for the parcel, using the name "Ramon Lopez." Within minutes Ramirez left 148 E. Leith St., toting a bag large enough to contain the parcel; the radio beacon told the agents that the unopened parcel was in the bag. Ramirez walked a few blocks to 2705 S. Harrison Street, and agents followed while trying to remain hidden. One used a cell phone to call an Assistant United States Attorney to initiate the process for obtaining a fourth warrant, but during the call the agents' receiver told them that the parcel had been opened. Whoever opened the package was bound to notice the transmitter. Fearing that the occupants would destroy evidence (not only the contents of the package but also any other evidence in the house), agents entered immediately. They found Ramirez (who attempted to escape out a back door with the parcel), Luis Limares, and two women. Limares soon made inculpatory statements. With federal agents in control of the house, others returned to the courthouse and secured the fourth search warrant. When executing that warrant agents found drugs and evidence of drug dealing in addition to the methamphetamine inside the parcel from Fresno.

After the district court denied a motion to suppress the statements made and evidence found at 2705 S. Harrison St., Ramirez and Limares pleaded guilty to possessing methamphetamine with intent to distribute that drug. Limares reserved the right to appeal the denial of the mo tion to suppress and was sentenced to 135 months' imprisonment. Ramirez agreed to give up his right to appeal and cut a better deal by promising to testify against his confederates, if need be; he was sentenced to only 70 months' imprisonment.

Limares contends that the first two warrants should not have issued because Wendy could not reliably detect drugs, and that the evidence found at 2705 S. Harrison St. must be suppressed because the agents entered before securing the fourth warrant. It is far from clear that Limares had any privacy interest in the parcels, which were not sent by or to him, so the validity of the warrants for the two parcels may be irrelevant. See Minnesota v. Carter, 525 U.S. 83 (1998); Rakas v. Illinois, 439 U.S. 128 (1978). But we need not decide whether he had some concealed interest; there is no problem with any of the searches.

According to Limares, the agents defrauded the magistrate who issued the first two search warrants by asserting that Wendy reliably detects drugs by smell. This is impossible, the argument goes, because so much currency has acquired at least some drug residue that dogs today alert more to folding money than to drugs--exemplified by what Limares calls the "false alert" to the first package, which had $18,000 in currency but no drugs. When seeking the second warrant agents told the magistrate that the first package had contained cash rather than drugs but did not add (as Limares says they should have) that this established Wendy's unreliability. For all the magistrate knew, Limares asserted, Wendy alerts to anything within smelling range and thus is useless at ferreting out drugs.

The district judge held a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to explore the possibility that the agents had made materially false representations about Wendy's sense of smell. He concluded that they had not done so--that Wendy can and does reliably distinguish drugs from innocuous substances. That factual finding cannot be called clearly erroneous, given its evidentiary support. According to the record, 62% of Wendy's alerts were followed by the discovery of drugs; another 31% signaled the presence of currency. Some alerts to currency may have been false positives, but a considerable number likely resulted from currency with unusually high concentrations of drug residue, a telltale sign of money sent between drug dealers to pay for inventory. The $18,000 bound for Fresno had all the earmarks of such a shipment; people do not conduct legitimate business by mailing wads of cash hidden inside stuffed rabbits and jars of hair cream, as the sender of this package did. Only 7% of Wendy's "hits" are unambiguous false positives, according to this record. We can't exclude the possibility that Wendy's success is just a mirror of the agents' ability to find drug-laden packages to put under her nose; maybe she would not fare as well on a randomly selected sample, but that possibility was not pursued at the hearing.

Limares stresses that several investigations have found that some molecules of cocaine, heroin, and other drugs can be found by sophisticated apparatus on almost all currency. This has the potential to increase the rate of false positives, and if the rate becomes high enough then dogs will no longer be able to separate drugs from innocent activities. See United States v. $506,231 in U.S. Currency, 125 F.3d 442, 453 (7th Cir. 1977). It is inevitable that some molecules of drugs will adhere to every Federal Reserve note. Even a small quantity of drugs has an unimaginably large number of molecules, and these get around. A single mole of gas (which would weigh only 12 grams if all of the atoms...