United States v. Ricciardelli ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1424
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN RICCIARDELLI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U. S. District Judge]
Before
Torruella, Selya and Stahl,
Circuit Judges.
John H. LaChance, with whom LaChance & Whatley was on brief,
for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom A. John Pappalardo, United States Attorney, was on brief,
for appellee.
June 22, 1993
SELYA, Circuit Judge. Defendant-appellant Steven
SELYA, Circuit Judge.
Ricciardelli was convicted at a bench trial of violating 18
U.S.C. 2252(a)(2) (1988), a statute that criminalizes the
knowing receipt through the mails of a "visual depiction [that]
involves the use of a minor engaging in sexually explicit conduct
. . . ." Ricciardelli appeals, contending that the district
court erred in denying his motion to suppress evidence obtained
pursuant to the execution of an anticipatory search warrant. We
conclude that, although the Constitution does not altogether
proscribe the use of such anticipatory warrants, the warrant
employed here was constitutionally infirm. We, therefore,
reverse.
I. BACKGROUND
In 1988, Houston police breathed life into a moribund
child pornography investigation by giving federal postal
inspectors a customer list unearthed during a 1975 probe of a
suspected pornography distributor. Appellant's name appeared on
the list. The postal inspectors subsequently spawned a
fictitious "front" company, Globe-Tex Specialties, and targeted
Ricciardelli in a sting operation. After preliminary
correspondence elicited interest on Ricciardelli's part, Globe-
Tex sent him a catalog from which he ordered several videotapes.
Globe-Tex notified him that only one tape was immediately
available and promised to mail it forthwith.
On the day prior to the scheduled delivery, the postal
inspectors applied for, and a magistrate judge issued, a search
2
warrant. The warrant authorized the investigators to search
appellant's residence for, inter alia, correspondence, documents,
and objects related to contacts with either Globe-Tex or the
Houston pornography dealer. By its express terms, the search
warrant would "not be effective until after delivery by mail to
and receipt by Steven L. Ricciardelli of the . . . package
containing the videotape."
The day after the warrant was issued, postal inspectors
gave the package containing the videotape to the local post
office for delivery. A return receipt, affixed to the parcel,
required that appellant sign for it. The letter carrier tried to
deliver the package that day but appellant was not home.
Following standard practice, the postman left a notice on the
premises indicating that appellant could collect the item at the
post office. That afternoon, appellant retrieved the package and
returned to his home. About thirty minutes later, postal
inspectors executed the warrant, recovering the videotape, some
correspondence, and a number of other films and magazines not
mentioned in the warrant.
Appellant was indicted. The district court summarily
denied his motion to suppress the materials seized from his
dwelling. Subsequently, appellant stipulated to the pertinent
facts and the judge found him guilty. This appeal ensued.
II. ANALYSIS
We divide our analysis of this case into segments. We
first discuss the constitutionality of anticipatory search
3
warrants as a general matter. We then turn to specifics,
discussing certain alleged deficiencies in the warrant obtained
by the postal inspectors. We end by addressing the government's
contentions that appellant's submissiveness and/or the postal
inspectors' good faith palliated any defects in the warrant.
A. Anticipatory Search Warrants.
At the outset, appellant seeks to bowl a ten-strike:
he asks us to rule that so-called anticipatory search warrants
are per se unconstitutional. This initiative presents a
question of first impression in this circuit.1
Anticipatory search warrants are peculiar to property
in transit. Such warrants provide a solution to a dilemma that
has long vexed law enforcement agencies: whether, on the one
hand, to allow the delivery of contraband to be completed before
obtaining a search warrant, thus risking the destruction or
dispersement of evidence in the ensuing interval, or, on the
other hand, seizing the contraband on its arrival without a
warrant, thus risking suppression. Anticipatory warrants
warrants that are issued in advance of the receipt of particular
property at the premises designated in the warrant2 strike a
1We cannot escape this issue for, if anticipatory search
warrants are valid at all, the rules pertaining to their issuance
will necessarily determine the legal sufficiency of the warrant
obtained in this case.
2To be sure, an anticipatory warrant can be directed toward
the search of a person instead of a place. For ease in
reference, however, we speak throughout this opinion of searches
of places rather than of persons (although we note that the same
principles apply in either case).
4
third chord, protecting privacy rights by requiring advance
judicial approval of a planned search while simultaneously
satisfying legitimate law enforcement needs. See United States
v. Garcia, 882 F.2d 699, 703 (2d Cir.), cert. denied, 493 U.S.
943 (1989); see also 2 Wayne LaFave, Search and Seizure 3.7(c),
at 97 (1987).
Appellant's constitutional challenge to the use of
anticipatory warrants proceeds under the aegis of the Fourth
Amendment. His theory is epibolic. First, he remarks the
obvious that a warrant can issue only "upon a showing of
probable cause," U.S. Const. Amend. IV and interprets this as
requiring probable cause to believe that the contraband to be
seized is in the place to be searched at the time a warrant
issues. He then erects a second proposition on this problematic
pedestal, professing that a magistrate can have no
constitutionally sufficient basis for issuing a warrant at a time
when the contraband is elsewhere and, presumably, probable cause
does not exist. In our view, appellant's theory misconstrues the
meaning of probable cause.
The probable cause doctrine does not require that the
contraband to be seized must presently be located at the premises
to be searched, only that there is probable cause to believe that
a crime has been (or is being) committed and that evidence of it
can likely be found at the described locus at the time of the
search. See United States v. Aguirre, 839 F.2d 854, 857-58 (1st
Cir. 1987). "Probability is the touchstone [of probable cause] .
5
. . ." United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.
1987) (collecting cases). In the stereotypical case, an item's
current location creates a probability that it will be at the
same location when the search is executed but there are no
guarantees. The suspect might move or destroy the contraband
before the warrant is executed. Nevertheless, so long as the
requisite probability exists, the possibility that things might
go awry does not forestall the issuance of a warrant. After all,
"[p]robable cause need not be tantamount to proof beyond a
reasonable doubt." United States v. Hoffman, 832 F.2d 1299,
1305-06 (1st Cir. 1987); accord Illinois v. Gates, 462 U.S. 213,
238 (1983) (requiring "a fair probability that contraband . . .
will be found in a particular place"); United States v. Caggiano,
899 F.2d 99, 102 (1st Cir. 1990) (collecting cases).
Seen from this perspective, it is difficult to discern
the constitutional objection to an anticipatory warrant. In many
cases, the facts put forward in support of an anticipatory search
warrant predicated on the planned delivery of contraband to a
particular location establish a greater likelihood that the
contraband will be found there at the time of the search (which
will be contemporaneous with the arrival of the contraband, or
nearly so) than do facts put forward in support of a more
conventional search warrant predicated on the known recent
location of contraband at the proposed search site. Moreover,
the method of the Fourth Amendment inserting a neutral,
detached judicial officer as a buffer between a citizen's privacy
6
rights and potential government overreaching works equally as
well in connection with anticipatory warrants. In either
instance, contemporary or anticipatory, the focal point of the
magistrate's inquiry is whether there is probable cause to think
that the contraband will be at the place to be searched at the
time of the contemplated intrusion. That the event justifying
the intrusion has not yet occurred does not distort the
decisionmaking process. Rather, the magistrate must simply widen
his horizons to take into account the likelihood that the
triggering event will occur on schedule and as predicted in
making his probable cause determination.3
Mindful of these considerations, we find it
unsurprising that every circuit to have addressed the question
has held that anticipatory search warrants are not categorically
unconstitutional. See, e.g., United States v. Tagbering, 985
F.2d 946, 950 (8th Cir. 1993); United States v. Wylie, 919 F.2d
969, 974-75 (5th Cir. 1990); United States v. Goodwin, 854 F.2d
33, 36 (4th Cir. 1988); United States v. Goff, 681 F.2d 1238,
1240 (9th Cir. 1982); United States v. Lowe, 575 F.2d 1193, 1194
(6th Cir.), cert. denied, 439 U.S. 869 (1978); United States ex
3This is not very different than a magistrate issuing a
warrant for a wiretap a warrant which, in actuality,
contemplates a "seizure" of specific oral communications which,
by definition, do not exist at the time of the warrant's
issuance. Such a warrant can appropriately be viewed as an
anticipatory warrant for the seizure of words: the magistrate
issues the warrant on the basis of a substantial probability that
crime-related conversations will ensue. Clearly, such warrants
are permitted under the Fourth Amendment. See Katz v. United
States, 389 U.S. 347, 354-55 (1967); Berger v. New York, 388 U.S.
41, 63 (1967).
7
rel. Beal v. Skaff, 418 F.2d 430, 432-33 (7th Cir. 1969); see
also United States v. Nixon, 918 F.2d 895, 903 n.6 (11th Cir.
1990) (dictum). We, too, believe that there is no Fourth
Amendment infirmity indigenous to anticipatory search warrants
although such warrants must, of course, be issued under proper
circumstances, upon a proper showing, and with proper safeguards.
We hold, therefore, that when law enforcement personnel offer a
magistrate reliable, independent evidence indicating that a
delivery of contraband will very likely occur at a particular
place, and when the magistrate conditions the warrant's execution
for the search of that place on that delivery, the warrant, if
not overbroad or otherwise defective, passes constitutional
muster. That the contraband has not yet reached the premises to
be searched at the time the warrant issues is not, in
constitutional terms, an insuperable obstacle.
B. Exigent Circumstances.
Appellant next suggests that, even if anticipatory
warrants are not invalid per se, their use must be confined to
circumstances in which time is of the essence, e.g., drug cases,
where a significant danger lurks that the evidence might be lost
if the search is not made in close temporal proximity to the
contraband's delivery. We disagree: the absence of exigent
circumstances and the government readily concedes that none are
present here does not outlaw the use of an anticipatory
warrant.
We need not linger. The Eighth Circuit recently
8
rejected this precise argument. In Tagbering, the court stated
that the presence or absence of exigent circumstances is
irrelevant in determining whether an anticipatory search warrant
should issue. See Tagbering, 985 F.2d at 950 n.6. We share this
view. Where the probable cause requirement for an anticipatory
search warrant has been fulfilled, there is no necessity for an
independent showing of exigent circumstances. Cf. United States
v. Panitz, 907 F.2d 1267, 1270 (1st Cir. 1990) (reiterating that
where a vehicle search is supported by probable cause, no
exigency need exist to justify warrantless search).
The logic behind this conclusion is inescapable.4
Probable cause is probable cause; the justification for a search
does not vanish merely because the circumstances are such that
the evidence could have been obtained through a more familiar
method. See United States v. Johns, 469 U.S. 478, 484 (1985);
United States v. LaFrance, 879 F.2d 1, 4-5 (1st Cir. 1989);
United States v. McHugh, 769 F.2d 860, 865-66 (1st Cir. 1985);
see also United States v. Rabinowitz, 339 U.S. 56, 66 (1950)
("The relevant test is not whether it is reasonable to procure a
search warrant, but whether the search was reasonable."). That
the authorities might often be better positioned in child
4Indeed, as both Tagbering and Panitz point out, if exigent
circumstances exist, there is, by definition, no need for any
kind of search warrant. See Tagbering, 985 F.2d at 950 n.6;
Panitz, 907 F.2d at 1270 & n.3. The other side of the coin is
equally revealing: exigent circumstances will rarely, if ever,
be present in child pornography cases, as history teaches that
collectors prefer not to dispose of their dross, typically
retaining obscene materials for years.
9
pornography investigations than in drug investigations to obtain
a conventional search warrant does not cheapen the value of the
magistrate's initial probable cause determination and, thus, "is
not dispositive of any relevant issue." Panitz, 907 F.2d at 1271
n.3. Consequently, we hold that an otherwise valid anticipatory
warrant does not fail merely because the officers might have lost
nothing by waiting until the delivery had been completed before
obtaining a warrant.
C. Definiteness.
We now reach the crux of the suppression issue: Was
the warrant fatally defective because it failed to forge a
sufficient link between the arrival of the videotape and the
proposed search of appellant's abode? We think that it was.
Although anticipatory search warrants are not
constitutionally foreclosed, see supra Part II(A), a warrant
conditioned on a future event presents a potential for abuse
above and beyond that which exists in more traditional settings:
inevitably, the executing agents are called upon to determine
when and whether the triggering event specified in the warrant
has actually occurred. Consequently, magistrates who are asked
to issue such warrants must be particularly vigilant in ensuring
that the opportunities for exercising unfettered discretion are
eliminated. To satisfy these concerns, the magistrate must set
conditions governing an anticipatory warrant that are "explicit,
clear, and narrowly drawn so as to avoid misunderstanding or
manipulation by government agents." Garcia, 882 F.2d at 703-04;
10
accord Tagbering, 985 F.2d at 950.
There are two particular dimensions in which
anticipatory warrants must limit the discretion of government
agents. First, the magistrate must ensure that the triggering
event is both ascertainable and preordained. The warrant should
restrict the officers' discretion in detecting the occurrence of
the event to almost ministerial proportions, similar to a search
party's discretion in locating the place to be searched. Only
then, in the prototypical case, are the ends of explicitness and
clarity served. Second, the contraband must be on a sure and
irreversible course to its destination, and a future search of
the destination must be made expressly contingent upon the
contraband's arrival there. Under such circumstances, a number
of courts have found anticipatory search warrants to be valid.
See, e.g., Nixon, 918 F.2d at 903 n.6; United States v.
Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988), cert. denied, 490
U.S. 1005 (1989); Goodwin, 854 F.2d at 36; United States v. Hale,
784 F.2d 1465, 1468-69 (9th Cir.), cert. denied, 479 U.S. 829(1986); Goff, 681 F.2d at 1240. We adopt the "sure and
irreversible course" standard as a means of judging the validity
of anticipatory warrants.
It is at this juncture, however, that we part company
with the government. The sure course standard functions as a
proxy for the actual presence of the contraband at the locus to
be searched. It offers the magistrate a trustworthy assurance
that the contraband, though not yet on the site, will almost
11
certainly be located there at the time of the search, thus
fulfilling the requirement of future probable cause. See, e.g.,
Hale, 784 F.2d at 1468 (finding a warrant for child pornography
that was to be delivered to defendant at his home to be "on a
sure course to its destination" and, hence, valid); Goff, 681
F.2d at 1240 (finding the requirement met where defendant boarded
an airplane and agents then procured a warrant to search him at
the flight's terminus). Implicit in this standard is the
recognition that the evidence must be on an ascertainable course
so that the event on which the warrant is conditioned bears a
definite relationship to the premises to be searched. It is,
moreover, imperative that the warrant establish not only this
kind of tri-cornered nexus between the criminal act, the evidence
to be seized, and the place to be searched, but also that the
nexus incorporate a temporal dimension. The important privacy
interests protected by the Fourth Amendment make it incumbent
upon the magistrate to craft the warrant with explicit, clear,
and narrowly drawn conditions governing its execution to ensure
that the anticipated nexus will actually exist if and when the
warrant is executed. Phrased another way, the event that
triggers the search must be the delivery of the contraband to the
premises to be searched, thereby leaving as little as possible to
the discretion of the agent executing the warrant. See 2 LaFave,
supra 3.7(d), at 101-02.
The instant warrant imposed no such strict conditions.
To the contrary, it overlooked (or, at least, did not address)
12
the need for establishing a nexus between the triggering event
and the place to be searched. Here, the warrant authorized a
search not of appellant's person but of his home, for evidence
relating to his dealings with child pornography distributors.
The search was to be triggered by delivery of the videotape.
Thus, the very premise on which the warrant rested was that the
videotape's arrival would signal the existence of probable cause
to believe that evidence of a crime the videotape itself as
well as evidence of criminal predisposition or other nefarious
activity was likely located in the dwelling. The warrant's text,
however, completely ignored this connection, conditioning the
search not on the arrival of the videotape at the place to be
searched, but, rather, on appellant's personal receipt of the
videotape, wherever he might be and wherever he might take his
prize. By the terms of the warrant, once appellant retrieved the
package at the post office, the postal inspectors could have
searched his abode whether or not appellant brought the
contraband there. An anticipatory search warrant that cedes such
great discretion to the executing agents cannot withstand
constitutional scrutiny.
In United States v. Hendricks, 743 F.2d 653 (9th Cir.
1985), cert. denied, 470 U.S. 1006 (1986), the Ninth Circuit
grappled with an almost identical nexus problem when considering
the validity of an anticipatory warrant. There, a package
containing contraband was shipped in a way that required
defendant to pick up the package personally, rather than merely
13
having it delivered to his home. See id. at 653. Even though
the contraband actually arrived at defendant's residence, the
Ninth Circuit invalidated the warrant on the ground that it
failed to forge the requisite link between the described premises
and the illegal activity. See id. at 655. The court reasoned
that, although the warrant listed a specific location to be
searched, once the box was picked up any number of circumstances
might intervene to snuff out a future connection between it and
the premises. See id. at 654-55.
The case at hand parallels Hendricks in important
respects.5 Here, as in Hendricks, the package, once retrieved,
could have been taken anywhere. Here, as in Hendricks, the
conditions governing the execution of the anticipatory search
warrant were extremely susceptible to the discretion of the
executing officers. Here, as in Hendricks, the warrant was too
broadly drawn in that it did not ensure that the contraband was
on a sure course to the premises to be searched. Here, as in
Hendricks, even though the defendant happened to take the
contraband home, the warrant did not establish an adequate three-
way nexus between the criminal activity, the evidence to be
seized, and the premises. It follows inexorably that here, as in
Hendricks, the search warrant was invalid.
Nor can we read the warrant as treating the search of
5To be sure, the case at hand differs from Hendricks in the
respect that, here, the authorities made an abortive attempt to
deliver the package directly to the defendant's residence. We do
not consider this distinction to possess decretory significance.
14
appellant's abode as an event separate from his receipt of the
videotape. The affidavit supporting the warrant bases the postal
inspector's conclusions anent probable cause upon appellant's
future receipt of the videotape at his home. What is more, it is
the triggering condition of appellant's receipt of the videotape
at home that eliminates alternative possibilities, say, that
appellant was a runner for some other person, or simply an
internuncio, thereby producing probable cause to believe that
appellant is a collector of child pornography and, hence, that
his residence likely contains evidence of his criminality. See,
e.g., id. at 654 (invalidating warrant where triggering event was
not certain and independent probable cause did not exist).
Therefore, unless the search can be saved on some other theory,
an inquiry to which we now turn, the fruits of the search must be
suppressed.6
D. Consent.
The government asseverates that any infirmity in the
search warrant was assuaged by appellant's supposed consent to
the postal inspectors' seizure of the videotape. We reject this
6Our concurring brother takes the view that the warrant
cannot stand because it was based in part on stale information.
See, e.g., United States v. Bucuvalas, 970 F.2d 937, 940 (1st
Cir. 1992) (discussing criteria for reliability of information on
which probable cause determination is based), cert. denied, 113
S. Ct. 1382 (1993). We find this proposition troubling, as it
overlooks the undeniable fact that, in addition to what
transpired in the past, the affidavit also contains ample "non-
stale" information concerning appellant's ordering of illicit
materials from Globe-Tex shortly before the search warrant
issued. In any event, given our conclusion that the warrant is
void for indefiniteness, we need not resolve the staleness
question.
15
asseveration on three grounds. In the first place, the record
discloses no finding by the district court that appellant
consented to a seizure. Second, even if appellant voiced his
consent, a court could not plausibly find such consent to have
been voluntary in the atmosphere created by the postal
inspectors' execution of the invalid warrant. See, e.g., United
States v. Maragh, 894 F.2d 415, 419-20 (D.C. Cir.) (finding that
consent does not cure an unlawful seizure), cert. denied, 498
U.S. 880 (1990); see also United States v. Twomey, 884 F.2d 46,
50-51 (1st Cir. 1989) (identifying criteria helpful in
determining voluntariness of consent), cert. denied, 496 U.S. 908(1990). Once appellant was led down the garden path, persuaded
that the search warrant was unimpugnable, his subsequent consent
must be viewed as merely an accommodation to the authorities.
See Florida v. Royer, 460 U.S. 491, 497 (1983); Lo-Ji Sales, Inc.
v. New York, 442 U.S. 319, 329 (1979). At any rate, the consent
issue is academic because, as the government concedes, the
videotape was within the perimeter of the search warrant (which
provided for the seizure of all "objects" related to Globe-Tex
Specialties). Inasmuch as the videotape is an immediate fruit of
an invalid search warrant, it must be suppressed.7 See Illinois
v. Rodriguez, 110 S. Ct. 2793, 2799 (1990).
7We need not consider the effect of appellant's alleged
consent on the suppression of magazines and other detritus not
encompassed by the search warrant. The short, conclusive answer
in regard to such items is that the government did not seek to
use them against appellant or introduce them into evidence at the
trial. Any controversy anent such items is, therefore, moot.
See, e.g., Smith v. INS, 585 F.2d 600, 602 (3d Cir. 1978).
16
E. Good Faith.
The government strains to persuade us that, even if the
warrant self-destructs, the evidence seized can be used against
Ricciardelli under the good faith exception to the exclusionary
rule. We are not convinced.
In United States v. Leon, 468 U.S. 897 (1984), the
Supreme Court explained that the exclusionary rule is a deterrent
measure designed to ensure compliance with the Fourth Amendment.
See id. at 906. The Court believed that there would often be no
deterrence when police obtain evidence in reliance on a search
warrant that is subsequently found to be defective; "in most such
cases, there is no police illegality and thus nothing to deter."
Id. at 921. Hence, exclusion of seized evidence under those
conditions serves no salutary purpose because that sanction
"cannot logically contribute to the deterrence of Fourth
Amendment violations." Id.Although weakening the exclusionary rule, the Court did
not defenestrate it. The Justices acknowledged that suppression
would continue to be appropriate in situations where,
notwithstanding the issuance of a warrant, "the law enforcement
officer had knowledge, or may properly be charged with knowledge,
that the search was unconstitutional under the Fourth Amendment."
Id. at 919. Thus, to cite two instances, suppression would be
proper where the "warrant [is] . . . so facially deficient
i.e., in failing to particularize the place to be searched or the
things to be seized that the executing officers cannot
17
reasonably presume it to be valid," or the warrant is "so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable." Id. at 923 (citation and
internal quotation marks omitted). If, however, the warrant's
defectiveness results from mere technical errors, see
Massachusetts v. Sheppard, 468 U.S. 981, 984, 990-92 (1984),
bevues by the magistrate not readily evident to a competent
officer, see United States v. Bonner, 808 F.2d 864, 867 (1st Cir.
1986) (suggesting that exclusion of evidence is inappropriate
where the magistrate, as opposed to the officers, is responsible
for a defective warrant), cert. denied, 481 U.S. 1006 (1987), or
borderline calls about the existence of probable cause, see Leon,
468 U.S. at 926 (favoring non-exclusion in situations where the
warrant is based on "evidence sufficient to create disagreement
among thoughtful and competent judges as to the existence of
probable cause"), then the evidence may be used, despite the
warrant's defectiveness.
To summarize, the exclusionary rule is alive and well
to the extent that a warrant's defectiveness results from either
(1) non-technical errors of a kind that a reasonably prudent
officer would (or should) have recognized, or (2) law enforcement
officers' acts or omissions of a kind that a reasonably prudent
officer would have avoided. See 1 LaFave, supra 1.2(d), at 38
(explaining that searching officer's erroneous understanding of
Fourth Amendment limits on his power still presents a compelling
case for exclusion).
18
After Leon, how does a court tell whether a defect in a
warrant is fatal? In determining whether a reasonable officer
should have known that a search was illegal despite a
magistrate's authorization, a court must evaluate all the
attendant circumstances, see Leon, 468 U.S. at 922 n.23; Earle v.
Benoit, 850 F.2d 836, 848 (1st Cir. 1988), keeping in mind that
Leon requires not merely good faith, but objective good faith.
See United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989). And
when, as now, a government agent asserts good faith reliance on a
magistrate's decision to issue a warrant, the court must focus
upon the existence vel non of objective good faith at the time of
the warrant application. See Malley v. Briggs, 475 U.S. 335,
344-45 (1986); Earle, 850 F.2d at 848.
Here, the government fails both parts of the good faith
test. After studying the record on appeal, we conclude that the
warrant, as issued, contained non-technical defects readily
observable to experienced postal inspectors and, moreover, that
the inspectors' omissions in the warrant-application process
constituted a second, independently sufficient ground for
distinguishing this case from Leon. Accordingly, the evidence
seized under the anticipatory warrant and introduced at trial
should have been suppressed.
In connection with the first prong of the test, we
find, without serious question, that the defects on the warrant's
face were apparent enough that the postal inspectors should have
realized that it did not comport with the Fourth Amendment. The
19
law was settled that the conditions governing the execution of
anticipatory warrants must be explicit, clear, and narrowly
drawn. The instant warrant plainly did not satisfy these
criteria; and, furthermore, the principal omission in the warrant
the lack of any requirement that the contraband arrive at the
premises was both glaring and easily correctable. Examining
the postal inspectors' actions in this light, it is crystal clear
that they could, and should, have asked the magistrate to
condition the search of appellant's home on the delivery of the
videotape there; failing both to insert this condition and to
recognize the consequences of its omission constituted
objectively unreasonable conduct. It follows, then, that
attempting to execute an anticipatory search warrant bereft of
such a limiting condition fell "outside the range of professional
competence expected" of federal agents.8 Malley, 475 U.S. at
346 n.9; see also United States v. Washington, 797 F.2d 1461,
1473 (9th Cir. 1986) (ruling that "patently overbroad" warrant
did not give rise to objective good faith under Leon); United
States v. Crozier, 777 F.2d 1376, 1382 (9th Cir. 1985)
(concluding that overbreadth in a search warrant comprised "no
mere technical error").
8While the standard is one of objective reasonableness, we
note that the postal inspectors who orchestrated this operation
were veterans of the government's war against child pornography.
In the affidavit accompanying the application for the search
warrant, one of the postal inspectors stated that he had "been
involved in approximately 300 child pornography and child sexual
exploitation investigations" and had "personally been involved in
the execution of at least 75 search warrants . . . relative to
child sexual exploitation investigations."
20
Although the failure to correct evident defects is
itself sufficient to support suppression here, it is also true
that other omissions attributable to the agents would,
independently, have required the same result. Government agents
may not trespass beyond the bounds of well-delineated Fourth
Amendment procedures and then attempt to blunt the effects of
their pererrations by foisting the blame on the magistrate. See
Malley, 475 U.S. at 346 n.9; United States v. Baker, 894 F.2d
1144, 1148 (10th Cir. 1990). This principle applies with
especial force where, as in this case, a sting operation,
culminating in a controlled delivery, is involved. The
government knew the plot; indeed, it invented Globe-Tex and
produced the sting from start to finish. Yet, the postal
inspectors failed to share the full script of their stage-play
with the magistrate. They cannot now fault the magistrate for
their bad reviews.
In this respect, the case at bar is reminiscent of
United States v. Fuccillo, 808 F.2d 173 (1st Cir.), cert. denied,
482 U.S. 905 (1987). In Fuccillo, we held that the good faith
exception would not salvage a search where, inter alia, the
warrant did not sufficiently describe the things to be seized,
because the officer possessed facts which should have enabled him
to describe the property to be seized more accurately. Id. at
177, 178 (stating that the warrant "could have been written with
precision to assure that appellee's personal rights would remain
inviolate" and that "the agents were reckless in not including in
21
the affidavit information which was known or easily accessible to
them"). Where the omission of a key ingredient, known to the law
enforcement officers, leads to the subsequent invalidation of the
warrant, the government faces a high hurdle in seeking to show
objective good faith.
When issuing anticipatory warrants, magistrates must
rely to a large extent on the expertise of federal agents as to
the certainty that the triggering event will occur. Particularly
where, as in this case, the agents preset elaborate plans to
search and seize, magistrates can only act to ensure respect for
the Fourth Amendment's protections if they are informed of the
plan's discretionary elements. Thus, the postal inspectors here
were responsible for conveying to the magistrate the various
possible outcomes in their scheme to deliver the Globe-Tex
package to Ricciardelli. In particular, the inspectors should
have apprised the magistrate of the (apparently significant)
chance that the package would not be delivered to Ricciardelli's
home at all a possibility that they undeniably had
envisioned.9 Fully informed, the magistrate might have drawn a
more finely tuned warrant. See Rivera v. United States, 928 F.2d
592, 603 (2d Cir. 1991); see also Fuccillo, 808 F.2d at 178(warning that, in applying for a warrant, agents must "take every
9At the suppression hearing, Inspector Dunn, whose affidavit
supported the search warrant, testified that the inspectors' plan
to execute the search warrant "[d]epend[ed] on what
[Ricciardelli] did after he picked it up." His affidavit,
however, did not disclose to the magistrate the variety of
possible outcomes or the inspectors' contingency plans.
22
step that could reasonably be expected of them").
In fine, the Leon doctrine does not apply in this case
both because a reasonably prudent officer should have known that
the procured warrant was substantially defective on its face, and
because the defect was largely, if not entirely, the result of
the officers' incomplete account to the magistrate.10 In the
circumstances, the magistrate's imprimatur on the warrant cannot
save the day. The exclusionary rule obtains. Suppression of the
evidence seized by means of the invalid warrant is appropriate
"to compel respect for the constitutional guaranty in the only
effectively available way by removing the incentive to
disregard it." Mapp v. Ohio, 367 U.S. 643, 656 (1961).
III. CONCLUSION
We need go no further.11 Although anticipatory
10Although the point is not instrumental to either the
analysis or the outcome here, we note that the Leon exception
does not absolve government officers from every mistake made in
good faith during the execution of a warrant. See, Leon, 468
U.S. at 920; see also United States v. Strand, 761 F.2d 449, 456-
57 (8th Cir. 1985) (holding Leon inapplicable to seizures outside
the scope of a warrant). For instance, Leon's good faith rule
would not excuse full-blown mistakes in the execution of a
warrant. See, e.g., Maryland v. Garrison, 480 U.S. 79, 89 n.14
(1987) (explaining that, when "police begin to execute the
warrant and . . . discover [a] factual mistake[, they] must
reasonably limit their search accordingly"). Hence, if a
situation arises in which officers wrongly conclude that the
triggering event needed to animate an anticipatory warrant has
occurred, and proceed to execute a full search in the face of
this mistake, we would not review that mistake under Leon's good
faith standard.
11After this appeal was fully briefed, but before oral
argument, the Ninth Circuit struck down the Protection of
Children Against Sexual Exploitation Act, 18 U.S.C. 2251-2255
(1988), of which section 2252(a)(2) is a part, on constitutional
grounds. See United States v. X-citement Video, Inc., 982 F.2d
23search warrants are constitutionally allowable, the warrant used
in this case suffered from a fatal defect that was neither cured
by any enforceable consent nor subject to amelioration under the
Leon doctrine. Accordingly, appellant's motion to suppress the
fruits
of the search should have been granted.
Appellant's conviction is vacated and the district
court's denial of appellant's motion to suppress is reversed.
Concurring Opinion Follows
1285, 1292 (9th Cir. 1992). This issue was neither briefed nor
argued before us. Hence, we take no view of the statute's
constitutionality.
24
TORRUELLA, Circuit Judge (Concurring). Although I
agree that appellant's conviction should be vacated, I have
serious reservations about the majority's approach to that
result. The majority unnecessarily addresses the constitutional
validity of anticipatory search warrants and, having done that,
resolves the issue incorrectly.
I begin by describing the areas in which my views are
most similar to those of the majority. We both agree that the
warrant in this case was utterly unsupported by probable cause.
I find, however, that the warrant was tainted by information too
stale to carry the crisp reliability necessary to find probable
cause. While the majority contentedly dismisses this aspect of
the case, ante at 15 n.6, I believe that it provides for the
proper resolution of this appeal.
As the majority eloquently states, "In 1988, Houston
police breathed life into a moribund child pornography
investigation by giving federal postal inspectors a customer list
unearthed during a 1975 probe of a suspected pornography
distributor." Ante at 2. The activity unearthed by the moribund
investigation -- appellant ordered two films from a child
pornography dealer -- occurred in 1974. In 1990, postal
inspectors conducted a sting which lured appellant to buy
forbidden films, and applied for a warrant to search his home for
those and other materials. The 1990 operation and warrant
application were based, thus, on appellant's activities which
occurred sixteen years before.
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In this circuit, we do not measure staleness merely on
the basis of the maturity of the information. United States v.
Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992), cert. denied, 113
S. Ct. 1382 (1993). Other factors include 1) whether the
criminal activity is ongoing or discrete; 2) whether the criminal
is entrenched or nomadic; 3) whether the items to be seized are
long-lasting or perishable; and 4) whether the premises to be
searched are a secure operating base or a mere criminal forum.
Id. The application of these factors to the facts of the present
case, some not fully detailed in the majority opinion, discloses
the stagnant heart of this case.
First, the statute that appellant is accused of
violating, 18 U.S.C. 2252(a)(2), prohibits the receipt of child
pornography through interstate commerce or mail. The evidence in
the record of this case shows that appellant only engaged in this
activity twice, on occasions separated by sixteen years. The
activity clearly cannot be described as ongoing. This conclusion
is buttressed by the fact that when appellant placed the first
order, in 1974, the receipt of child pornography through the mail
was not prohibited. An early version of 2252 did not appear
until 1978, with a substantial amendment occurring in 1984, ten
years after appellant's first order. Thus, appellant's first
order was not even illegal. This is a point that must be
emphasized. There was no ongoing illegal activity in this case,
because appellant acted illegally only once, when the government
induced him to do so in a sting operation. In other words,
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25
appellant's recent purchase did not update the 1974 purchase,
because those earlier activities are not comparable in terms of
violation of the law.
Appellant's nomadic nature also negates the ongoing
reliability of his 1974 activity. At that time, appellant lived
in Newton, Massachusetts. Appellant later moved to Framingham,
Massachusetts, and yet again to another address in Framingham.
Appellant lived at his final residence with his mother and
brother, sharing a room with his sibling. The affidavit
contained no information even tending to show that appellant
retained the 1974 materials through these relocations, or that
his coresidents tolerated the presence of prurient material in
the shared premises.
I concede that the affidavit showed the ongoing utility
of child pornography to collectors and pedophiles, discussing how
such individuals keep their dross for long periods of time.
Standing alone, however, this information does not justify the
conclusion that appellant kept the materials throughout sixteen
years and two relocations. The affidavit did not define
collector and pedophile, or characterize appellant as a member of
either class. See United States v. Weber, 923 F.2d 1338, 1345
(9th Cir. 1990) (concerning similar affidavit, the court noted
"the affidavit does not say how many magazines or pictures one
must buy in order to be defined as a 'collector'"). As such, the
affidavit is inconclusive as to the ongoing utility of the
materials to appellant, especially in light of his various
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26
relocations and the long passage of time. Additionally, it
cannot be presumed automatically that appellant would keep
material which was illegal as a result of subsequent legislation,
once such a law went into effect in 1978.
Finally, there is no showing that appellant's address
was a secure base. The affidavit did not adduce that appellant
kept a cache of child pornography there, and appellant's
relocations weaken the existence of this possibility. The
affidavit merely established that the address was appellant's
home, which he shared with his mother and brother. Again, the
fact that he shared his premises with nonparticipants in the
criminal enterprise is a weakening point in terms of the presence
of contraband at that location.
Based on these factors, I find it easy to conclude that
the information pertaining to appellant's 1974 materials could
not support a probable cause finding in this case. Yet, the
stagnant information formed the heart of the inspector's
affidavit and was the only basis for the attenuated inference
that appellant amassed child pornography at his home. Without
it, the sting operation and the search warrant fall. This is as
far as we should go, proceeding directly to quash the conviction.
It is unnecessary to go further into constitutional speculation.
The majority proceeds, however, to answer unnecessarily
a wholly novel question for this circuit: whether the
anticipatory search warrant in this case was constitutional.
Worse yet, it issues a blanket license allowing its proliferation
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27
into common use.
For the majority to do so is an imprudent exercise of
our judicial power. It is axiomatic that we avoid constitutional
rulings unless they are strictly necessary. El D a, Inc. v.
Hern ndez Col n, 963 F.2d 488, 494 (1st Cir. 1992) (citing
Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461
(1945); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-55
(1936) (Brandeis, J., concurring); Aggarwal v. Ponce School of
Medicine, 745 F.2d 723, 726 (1st Cir. 1984)). The long standing
rationale for this rule is to avoid issuing advisory opinions.
United States v. Hastings, 296 U.S. 188, 193 (1935). Because the
search warrant in this case was utterly unsupported by probable
cause, addressing the constitutionality of anticipatory search
warrants amounts to such an impermissible advisory opinion.
To complicate matters, the majority elects the wrong
side of this unnecessary constitutional issue, choosing a
problematic and erroneous result in this case. Anticipatory
search warrants are violative of the Fourth Amendment, which
plainly states that "no Warrants shall issue, but upon probable
cause." Probable cause must exist to believe at the time of
issuance that the contraband is in the place to be searched.
Steagald v. United States, 451 U.S. 204, 213 (1981) (warrants
issue upon showing of "probable cause to believe that the
legitimate object of a search is located in a particular place")
(emphasis added); United States v. Salvucci, 599 F.2d 1094, 1096
(1st Cir. 1979) ("the Fourth Amendment requires that the
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28
supporting affidavits set forth facts sufficient to allow a
neutral magistrate to reasonably conclude that the property
sought is located on the premises to be searched at the time the
warrant issues") (emphasis added), rev'd on other grounds, 448
U.S. 83 (1980); see also Sgro v. United States, 287 U.S. 206, 208
(1932) ("the proof [supporting probable cause] must be of facts
so closely related to the time of the issue of the warrant as to
justify a finding of probable cause at that time").
The requirement of contemporaneous probable cause flows
from the interests animating the Fourth Amendment. One of the
principle evils which that provision prevents is vesting law
enforcement officers with any discretion as to whether or not the
conditions of the warrant have been complied with. This is
precisely what anticipatory warrants permit in deviating from the
contemporaneous probable cause standard.
It is well established that "[t]he security of one's
privacy against arbitrary intrusion by the police -- which is at
the core of the Fourth Amendment -- is basic to a free society."
Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971) (quoting Wolf
v. Colorado, 338 U.S. 25, 27 (1949)). Accordingly, the Fourth
Amendment places very stringent limits on officers invading an
individual's privacy. "'The proceeding by search warrant is a
drastic one,' and must by carefully circumscribed so as to
prevent unauthorized invasions of 'the sanctity of a man's home
and the privacies of life.'" Berger v. New York, 388 U.S. 41, 58
(1967).
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29
The Fourth Amendment forbids general warrants to
prevent law enforcement officers from rummaging through an
individual's belongings at will. E.g., Andresen v. Maryland, 427
U.S. 463, 480 (1976) (quoting Coolidge, 403 U.S. at 467). The
requirement of a particular description "'makes general searches
. . . impossible and prevents the seizure of one thing under a
warrant describing another. As to what is to be taken, nothing
is left to the discretion of the officer executing the warrant.'"
Id. (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965), itself
quoting Marron v. United States, 275 U.S. 192, 196 (1927)).
Thus, a warrant authorizing a search for obscene publications was
deficient because it "merely repeated the language of the statute
and the complaints, specified no publications, and left to the
individual judgment of each of the many police officers involved
in the selection of such magazines as in his view constituted
'obscene . . . publications.'" Marcus v. Search Warrant, 367
U.S. 717, 732 (1961).
Furthermore, the Fourth Amendment requires that the
probable cause determination be made by a neutral and detached
magistrate, rather than by the officers conducting the search.
It has long been established that
the point of the Fourth Amendment, which
often is not grasped by zealous officers,
is not that it denies law enforcement the
support of the usual inferences which
reasonable men draw from evidence. Its
protection consists in requiring that
those inferences be drawn by a neutral
and detached magistrate instead of being
judged by the officer engaged in the
often competitive enterprise of ferreting
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30
out crime.
Johnson v. United States, 333 U.S. 10, 13-14 (1948). Otherwise,
the Fourth Amendment would be a "nullity" and homes would be
"secure only in the discretion of police officers." Id. at 14.
It is thus clear that the Fourth Amendment is concerned
with insulating the citizenry from the whims of law enforcement
officers. Plainly and simply, the use of anticipatory search
warrants erodes this insulation. When an officer is given an
anticipatory search warrant, the magistrate essentially instructs
the officer as follows: When the following conditions occur,
probable cause to conduct a search will arise. The officer is
then left to determine unilaterally whether, when, and how the
conditions occur which give rise to probable cause.
Law enforcement officers should not be the ones, absent
exigent circumstances, that engage in the sensitive balancing
required to weigh the merits of probable cause in a given case
because they are not neutral parties to the determination of that
crucial inquiry. The majority recognizes the need to limit the
officers' discretion in executing an anticipatory warrant, but
nonetheless foists upon the officers a determination that is
quite sensitive in a constitutional sense. An anticipatory
warrant can only be executed when four threads come together to
form a coherent nexus: the criminal act, the evidence to be
seized, the place to be searched, and the "temporal dimension."
Ante at 12. The officers have virtually unfettered discretion to
determine when this "temporal dimension" has been fulfilled, with
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31
no input from a neutral and detached judicial officer.
The majority also recognizes that "[w]hen issuing
anticipatory warrants, magistrates must rely to a large extent on
the expertise of federal agents as to the certainty that the
triggering event will occur." Ante at 21. Because the majority
finds that probability is the touchstone of probable cause, ante
at 5, this fact demonstrates the great amount of discretion
delegated to law enforcement officers in the anticipatory search
warrant context. Law enforcement officers put together the
probability that gives rise to probable cause, and then determine
when the eventuality occurs. In other words, the officers are in
control of the entire warrant process, shaping the probable cause
determination from start to finish. Such an unfettered and
judicially uncontrolled intrusion into an individual's privacy
interest is precisely what the Fourth Amendment was designed to
prevent.
Incredibly, given the majority's resolution of the
issue, no government interest weighed heavily in favor of the use
of anticipatory search warrants. See New Jersey v. TLO, 469 U.S.
325, 337 (1985) (balancing "the individual's legitimate
expectations of privacy and personal security" with "the
government need for effective methods to deal with breaches of
public order" in passing on the validity of a class of searches).
An officer "engaged in the often competitive enterprise
of ferreting out crime," Johnson, 333 U.S. at 14, has two options
in cases such as this one. Once the controlled delivery of
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32
contraband is complete, he may apply for a search warrant to the
appropriate magistrate. Alternatively, if an exigency should
arise in the course of the controlled delivery requiring
immediate action, the officer is authorized to conduct a
warrantless search pursuant to the well-known exigent
circumstances exception to the warrant requirement. In short,
there is no legitimate need for such a novel erosion of the
Fourth Amendment as is promoted by anticipatory search warrants.
The majority's analogy to warrants for wiretapping,
ante at 7 n.3, is misapplied. When authorizing a wiretap, a
magistrate must observe "precise and discriminate" procedures
specific to wiretaps. Katz v. United States, 389 U.S. 347, 355
(1967) (quoting Berger, 388 U.S. at 57). For example, the
magistrate must identify the telephone number to be tapped and
the conversations to be seized. United States v. Donovan, 429
U.S. 413 (1977). Probable cause must be fully in place before
the wiretap is authorized. These safeguards ensure that "'no
greater invasion of privacy [is] permitted than [is] necessary
under the circumstances.'" Katz, 389 U.S. at 355 (quoting
Berger, 388 U.S. at 57). They thus afford "'similar protections
to those . . . of conventional warrants.'" Id.As discussed above, anticipatory search warrants, in
addition to lacking the basic protections of conventional
warrants, are simply unnecessary to any legitimate law
enforcement need. Normal search warrants and the exigent
circumstances exception adequately address whatever need may
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33
arise in a controlled delivery. As such, allowing the government
to employ a new technique with which to invade an individual's
privacy interest is completely unwarranted (no pun intended).
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34