U.S. v. Paul

• Decision Date: 29 December 1986
• Docket Number: No. 86-1459,86-1459
• Citation: 808 F.2d 645
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Lee PAUL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 645

808 F.2d 645

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Lee PAUL, Defendant-Appellant.

No. 86-1459.

United States Court of Appeals Seventh Circuit.

Argued Nov. 12, 1986.

Decided Dec. 29, 1986.

Arthur M. Lerner, Greaves, Lerner & Kirchnew, Champaign, Ill., for defendant-appellant.

Paul L. Kanter, Asst. U.S. Atty., Danville, Ill., for plaintiff-appellee.

Before POSNER and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.

POSNER, Circuit Judge.

Ronald Lee Paul appeals from his conviction for possession of marijuana, for which he was sentenced to 18 months in prison to be followed by 5 years on probation. The only issue is the lawfulness of a search of Paul's home, which yielded marijuana that was used as evidence in his trial.

Michael Moore, a confidential informant for the federal drug authorities, arranged to buy a bale of marijuana from Paul for $44,000. In three phone conversations between Moore and Paul, taped by Illinois officers who were cooperating with the federal agents, Paul indicated that the sale would take place on September 6. In the last call, made at 9:00 a.m. on the sixth, Paul told Moore to bring the money to Paul's home at 11:00 a.m. The agents didn't want to entrust an informant with so much cash, but on the other hand Moore didn't want to go in empty-handed, since he believed (correctly) that there were loaded guns in the house. The agents decided to give Moore an electronic transmitting device, the button of which he was to press when he saw marijuana, to summon the agents, who would be waiting outside. Thus equipped, Moore went to Paul's house. Paul led him to the basement where Moore saw two bales of marijuana. Moore then pressed the button, agents knocked on the door of the house, and when there was no answer they entered the house (United States v. Andrus, 775 F.2d 825 (7th Cir.1985)), went to the basement, saw the bales of marijuana, and arrested Paul.

Unless there is an emergency ("exigent circumstances"), government agents need a warrant to conduct a search of or make an arrest in a person's home without his consent, even if they have probable cause to believe there is contraband or other incriminating evidence there. Payton v. New York, 445 U.S. 573, 587-88, 100 S.Ct. 1371, 1380-81, 63 L.Ed.2d 639 (1980); United States v. Altman, 797 F.2d 514, 515 (7th Cir.1986) (per curiam). Moore would have been in danger if, having agreed to bring the $44,000 for the marijuana, and having been shown the marijuana all neatly baled and ready to go, he had told Paul, "Oh, gee, I forgot to bring any money. I'll run home and get some." Without more, such danger would create an emergency justifying the agents in entering Paul's house without a warrant. See United States v. Dowell, 724 F.2d 599, 602-03 (7th Cir.1984). But if the danger could readily have been averted by the federal agents' either getting a search warrant and executing it in lieu of sending Moore into the house, or giving him $44,000 in marked money (a conventional method of using confidential informants to incriminate drug dealers), then the danger, having been created by the agents' lack of imagination, would not justify a search without a warrant. See id. at 602; United States v. Berkwitt, 619 F.2d 649, 654 (7th Cir.1980). The government, very short-sightedly as it seems to us, argues that it could not have gotten a warrant because (1) until Moore pushed the button the agents didn't have probable cause to believe there was marijuana in Paul's house and (2) it couldn't satisfy the requirement of particularity found in the warrant clause of the Fourth Amendment because Paul's house was on a farm that had other buildings and the agents weren't sure where the transaction would take place. These are very shallow arguments. The fact that Paul had been taped the morning of the sixth telling Moore to bring the $44,000 later that morning established not a certainty, but a probability (all that is necessary to satisfy the requirement of probable cause), that Paul had the marijuana either in the house or elsewhere on the farm. And the requirement of particularity would have been satisfied by specifying the house and other buildings, vehicles, and yard areas at Paul's farm. Cf. Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925); United States v. Gusan, 549 F.2d 15, 19 (7th Cir.1977).

What is true is that there was some chance that the marijuana wouldn't be there. Illegal drug deals frequently fall through at the last minute. Moreover, dealers are sometimes wary, and it is not beyond the bounds of probability that when Moore showed up Paul would drive him somewhere else to complete the deal. These possibilities were not enough to defeat a showing of probable cause but they did create a danger that a search...