U.S. v. Vesikuru

• Decision Date: 31 December 2002
• Docket Number: No. 01-30362.,01-30362.
• Citation: 314 F.3d 1116
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James VESIKURU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.3d 1116

UNITED STATES of America, Plaintiff-Appellee, v. James VESIKURU, Defendant-Appellant.

No. 01-30362.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 11, 2002.

Filed December 31, 2002.

David B. Bukey, Seattle, WA, for the defendant-appellant.

Ye-Ting Woo, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, District Judge, Presiding. D.C. No. CR-00-00492-01-BJR.

Before: BROWNING, FISHER, and TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

James Vesikuru appeals the district court's denial of his motion to suppress drug evidence found in his residence by authority of a search warrant. We conclude that the anticipatory warrant was facially valid because it adequately incorporated the supporting affidavit that established probable cause and articulated the conditions precedent to the warrant's execution. The searching officers were fully briefed on the restrictions found in the affidavit, and the district court correctly concluded after an evidentiary hearing that the officers complied with all of the required conditions. The district court properly ruled that incriminating evidence found inside the residence need not be suppressed. We affirm.

I

On September 26, 2000, a drug-sniffing dog alerted agents of the California Bureau of Narcotics Enforcement (BNE) to the possible presence of drugs inside a package being processed at a retail mail center. BNE agents opened the box after obtaining a search warrant and discovered a microwave oven with a jar inside containing more than 32 fluid ounces of a liquid believed to be phencyclidine (PCP). The package was addressed to "Pearl Jackson" at 5653 26th Ave. S.W., Seattle, WA (hereinafter "West Seattle residence"). It had no return address.

Drug Enforcement Administration (DEA) agents and local police officers assigned to a narcotics task force in Seattle were contacted, and they arranged to make a "controlled delivery" of a similar mock package to the West Seattle residence.¹ On September 28, task force agent Jonathan Haley applied for a state court search warrant using preprinted forms commonly employed in such matters.

In his supporting affidavit of probable cause provided to the court, Haley requested "an anticipatory Search Warrant" for the West Seattle residence. In relevant part, the affidavit set forth the following:

Based on the totality of the facts your affiant is requesting the court to ... Authorize an anticipatory Search Warrant for the [West Seattle] residence once the package has been accepted and observed to have been taken into the residence and that Officers are authorized to either immediately or upon activation of the radio transmitter² make entry into the residence located at 5653 26th Ave. SW, Seattle, WA. 98106.

King County District Court Commissioner A.C. Harper authorized the warrant. The preprinted warrant form did not state the above conditions precedent for the search, but the warrant did indicate that probable cause to search was based "[u]pon the sworn complaint" (the Haley affidavit), which was attached to the warrant as a supplemental form.

With both the search warrant and its supporting affidavit in hand, the agents conducted a pre-operational or "raid" briefing. At all relevant times prior to and during the search of Vesikuru's home, the affidavit physically accompanied the search warrant. DEA Special Agent Daniel Mancano, who led the operation, testified that he read both the warrant and the attached affidavit. He considered the language in the affidavit binding, and he briefed the other agents before surveillance began that entry into the West Seattle residence was not permissible until the package was first accepted by an occupant and then observed to be taken inside the residence.

On the afternoon of September 28, the operation began. A police agent posing as a commercial package carrier delivered the mock package to the West Seattle residence. Sabrina Castro, Vesikuru's girlfriend and co-defendant, answered the door and accepted the package. However, she did not bring the package into the house. Instead, she placed the package on the front porch. None of the agents conducting surveillance had a view of the front porch because Castro's minivan was parked in the driveway and blocked the agents' line of sight. After the delivery, agents twice observed Castro walk back and forth from the porch to the minivan. Returning to her minivan for the second time, Castro started the engine and pulled out of the driveway. As she drove away, the radio transmitter placed inside the package went off, alerting agents that the mock package had been opened. Once the vehicle left the driveway, Agent Mancano observed that the package was no longer on the front porch. Approximately three minutes passed from the time the package was delivered until Castro's departure.

Surmising that Castro might have taken the package with her, Agent Mancano directed other agents to pull over the minivan. They did, and quickly determined that the package was not in the van. Because the package was not in the van and was no longer on the porch, Agent Mancano then concluded that the package had been taken into the residence. He also concluded, based on the transmitter signal, that the package must have been opened by another person inside the house. He therefore authorized entry into the house. As agents approached, Vesikuru left the house and attempted to flee from the scene. He was stopped and arrested. Agents subsequently searched the home under the warrant's authority and found the mock package open on the living room floor and the glass jar broken into small pieces. Its contents had apparently been disposed of in a garbage can or the sink. More importantly, the agents discovered PCP, crack cocaine, and marijuana, among other incriminating evidence.

Vesikuru was charged with conspiracy to distribute PCP, attempted possession of PCP with intent to distribute, and possession of crack cocaine with intent to distribute. After the United States district court denied his motion to suppress the evidence, Vesikuru conditionally pled guilty to conspiracy to distribute PCP in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. See Fed. R.Crim. Pro. 11(a)(2). He was sentenced to serve 121 months. He now appeals.

We review de novo the conclusions of law made by the federal district court in denying the motion to suppress evidence. United States v. Hammett, 236 F.3d 1054, 1057 (9th Cir.2001). Factual findings based on evidence adduced at the suppression hearing are reviewed for clear error. Id.

II

Vesikuru first challenges the facial validity of the warrant, arguing that it is void for failure to state on its face the conditions precedent to the search. He correctly states the law of this Circuit, but misapplies the law in seeking to invoke its protection.

The execution of an anticipatory search warrant is conditioned upon the occurrence of a triggering event. If the triggering event does not occur, probable cause to search is lacking. See, e.g., United States v. Rowland, 145 F.3d 1194, 1201 (10th Cir.1998). Because the Fourth Amendment commands that warrants be drafted with particularity, we have held that the conditions precedent to any search must be stated in the warrant. United States v. Hotal, 143 F.3d 1223, 1226 (9th Cir.1998) (adopting the First Circuit rule that "when a warrant's execution is dependent on the occurrence of one or more conditions, the warrant itself must state the conditions precedent to its execution and these conditions must be clear, explicit and narrow"). Requiring the warrant to set forth the conditions precedent to the search serves two important purposes: it (1) limits the discretion of the officers executing the warrant, and (2) informs the property owner or resident of the proper scope of the search. Id. at 1227.

It is important to emphasize that we have not held that the condition precedent must be stated within the four corners of the warrant itself. The Fourth Amendment's particularity requirement is satisfied if (1) an affidavit setting forth the triggering event for the search accompanies the warrant at the time of the search, and (2) the warrant sufficiently incorporates that accompanying affidavit. See Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1026 (9th Cir.2002) (noting the "well-settled law of this Circuit" that "a warrant may be construed with reference to the affidavit" only if the affidavit is incorporated by and accompanies the warrant); United States v. McGrew, 122 F.3d 847, 849 (9th Cir.1997); United States v. Van Damme, 48 F.3d 461, 466 (9th Cir. 1995); United States v. Towne, 997 F.2d 537, 544-47 (9th Cir.1993); United States v. Spilotro, 800 F.2d 959, 967 (9th Cir. 1986); United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir.1986), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987); United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982); In re Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1319 (9th Cir. 1981); see also Hotal, 143 F.3d at 1227 (holding that "in order to comply with the Fourth Amendment, an anticipatory search warrant must either on its face or on the face of the accompanying affidavit, clearly, expressly, and narrowly specify the triggering event.").³ Though the aforementioned rule is oft-stated, few of our cases have actually turned on its application. None of our cases has addressed what "suitable words of reference" are required to incorporate a supporting affidavit.

The search warrant in this case satisfies the dictates of our case law. First, the affidavit setting forth the conditions precedent accompanied the search warrant at all relevant times prior to and during the search.⁴ Second, the warrant adequately incorporated the accompanying...