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United States v. Elst

August 25, 2009


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:08-cr-00117-WCG-1-William C. Griesbach, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.


Before MANION, ROVNER, and TINDER, Circuit Judges.

On January 16, 2008, Steven Scully, an investigator with the City of Green Bay Police Department in Wisconsin, obtained an anticipatory search warrant for the home of David A. Elst. The warrant was executed on January 18, 2008, after a confidential informant purchased cocaine (under controlled conditions) at the Elst residence. The officers executing the warrant found cash, including prerecorded currency used in the controlled buy, and 700 grams of cocaine. An indictment was returned in the district court charging Elst with conspiracy to distribute cocaine and possession of cocaine with the intent to distribute it.

Elst moved to suppress the fruits of the search. The magistrate judge held an evidentiary hearing and recom-mended that the motion be denied. Elst objected, and the district court adopted the recommendation. The court concluded that the warrant failed to establish probable cause that a triggering event-the delivery of a controlled substance at the Elst residence-would occur or when it would occur, but nonetheless determined that the officers relied in good faith on the warrant. It therefore determined that the good faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897 (1984), applied.

Following the denial of his suppression motion, Elst pled guilty to the conspiracy count and was sentenced to 92 months' imprisonment. The other count was dismissed on the government's motion. Having reserved the right to do so, Elst appeals the denial of his motion to suppress.

I. The Search

On January 16, 2008, Investigator Steven Scully, a member of the Brown County, Wisconsin drug task force, obtained (from a Wisconsin state court judge) an anticipatory search warrant for the premises occupied or owned by David A. Elst at 1566 North Road in the Village of Ashwaubenon in Brown County, Wisconsin. Investigator Scully provided an affidavit in support of the warrant, indicating that a confidential informant (CI) had made three controlled buys under the supervision of Scully and other members of the Brown County Drug Task Force. In the first, on December 3, 2007, the CI purchased one ounce of cocaine from Gregory Madsen at Madsen's residence at an apartment complex on River Bend Terrace in the Village of Bellevue, Wisconsin. On December 18, in the second buy, the CI purchased a half ounce of cocaine from Madsen, again at Madsen's apartment.

The third controlled buy, on January 10, 2008, occurred at Elst's residence at 1566 North Road. Scully's affidavit stated that the CI arranged with Madsen to purchase two ounces of cocaine from Madsen and his supplier. Madsen had told the CI that they would be going to the North Road address to complete the transaction. Investigator Scully and other task force members conducted surveillance as the CI picked up Madsen at his residence and drove to Elst's residence. There they ob-served Madsen enter the residence and return to the CI's vehicle. Shortly thereafter, another vehicle arrived, and a male and female exited it and entered Elst's apartment. Approximately ten minutes later, Madsen exited the residence and returned to the CI's vehicle. The CI reported to Scully later that he gave Madsen $1,600 for the cocaine as they pulled into the driveway of the Elst residence, and that after the two individuals had met with Madsen in the residence, Madsen exited the residence and provided the CI with what was later found to be 55.2 grams of cocaine, and $49. The CI remained under surveillance at all times.

Paragraph 7 of Scully's January 16, 2008 affidavit-which was titled "Affidavit in Support [of] Anticipatory Search Warrant"-stated:

Your affiant anticipates that CI will go to 1667 Riverbe[n]d Terrace and pick up Gregory Madsen and travel to 1566 North Rd. to purchase cocaine. If Madsen or another person delivers a controlled substance or a substance represented to be a controlled substance to the CI, and the delivery occurs at 1566 North Rd. or the person making the delivery comes from or returns to 1566 North Rd., then your affiant requests this warrant be active for a search of the premises.

The state judge issued the warrant on the same day as Scully's affidavit.

The warrant was executed on January 18, 2008. That day the CI, at Scully's direction, arranged to purchase cocaine from Madsen. Madsen told the CI to meet him at the North Road address. Before the controlled buy, the CI and his vehicle were searched for currency and contraband and the CI was provided with $1,580 in prerecorded "buy money." The CI then placed a phone call to Madsen who told the CI that he was already at the North Road address. When the CI pulled up to the Elst residence, Madsen was waiting outside for him. Madsen entered the CI's vehicle and handed the CI a baggie apparently containing cocaine, and the CI gave Madsen the buy money provided by Scully. Madsen then entered the residence at 1566 North Road.*fn1

After the controlled buy, the CI left the residence to meet with Investigator Scully in a nearby parking lot. The CI related what had occurred and turned over the cocaine just purchased. Investigator Scully and other task force members proceeded to the Elst residence. There, the other officers executed the warrant and searched the residence. They found more than $4,500 in ...

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