Appeal from the United States District Court for the Southern District of Illinois.
No. 95 CR 30122 Paul E. Riley, Sr., Judge.
Before BAUER, MANION, and DIANE P. WOOD, Circuit Judges.
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.
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 *fn1 (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, *fn2 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, 116 S. Ct. 1657, 1663 (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 ...