Appeal from judgments after jury trial before the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, convicting defendants of various narcotics offenses. Anticipatory search warrant upheld as constitutional in circumstances of case and verdict treating two defendants inconsistently upheld.
Oakes, Chief Judge, and Van Graafeiland and Pratt, Circuit Judges.
The only issue worthy of extended discussion on this appeal is whether government agents may obtain from a magistrate an anticipatory search warrant conditioned upon future events which, if fulfilled, would create probable cause and allow a search of the premises identified in the warrant. Jose A. Figueroa-Rivera (Figueroa), Gabriel Grant, and Celina Wilson-Grant (collectively "the defendants") appeal from judgments after a jury trial before the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, convicting them of various narcotics offenses. On appeal, defendants raise a host of claims, none of which, with the exception of the anticipatory warrant issue, requires a formal opinion. We write therefore only to address whether an anticipatory warrant was proper here.
We recite only the facts necessary to our determination.
Defendants, participants in an operation which smuggled cocaine into the United States from Panama, were indicted in the Eastern District of New York for conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and cocaine importation.
Defendants' operation used as couriers military servicemen stationed in Panama. Periodically, when they obtained leave or came to the United States for government purposes, these couriers -- including defendant Figueroa and two other servicemen, Darryl Hooks and Kendell Oliver -- obtained the cocaine from Panamanian sources and then smuggled it through Miami to New York, where they delivered it to Grant, Wilson-Grant, or another codefendant in the case, Francisca Caballero.
On one of these courier runs in early February 1988, Hooks and Oliver arrived in Miami from Panama carrying a combined total of thirty-three kilograms of cocaine in their duffel bags. Customs officials noticed that the two servicemen appeared nervous, and after recognizing Oliver's name from a "customs alert list", searched both couriers and discovered the cocaine.
After being flown from Miami to New York to meet with DEA agents, Hooks and Oliver agreed to cooperate with the government and to proceed with a controlled delivery of the cocaine. They then telephoned Wilson-Grant at Caballero's apartment and, after convincing her that they had been legitimately delayed, made arrangements to bring the cocaine to her at that apartment.
On February 4, 1988, before Hooks and Oliver delivered the cocaine, and without any probable cause to believe that contraband was currently located on the premises, DEA agents applied for and received an anticipatory warrant to search Caballero's apartment for cocaine, traces of cocaine, currency, drug records, and narcotics paraphernalia. Execution of this warrant was "contingent upon the delivery of cocaine by [Oliver] and [Hooks]". With the cocaine still in the duffel bags, DEA agents then accompanied Hooks and Oliver to Caballero's apartment, and waited while the couriers approached the door.
After knocking for several minutes, Hooks and Oliver were admitted by Caballero's husband, who informed them that Wilson-Grant was not there, and who gave his permission for them to wait inside. They entered, sat down in the living room, and placed the duffel bags containing the cocaine next to them. Five to ten minutes later, while they were still waiting and before Wilson-Grant or anyone else had taken possession of the duffel bags, the DEA agents entered the premises, announced that they had a warrant to search the apartment, began their search in the living room, and seized the cocaine and duffel bags. Thereafter, upon further search of the apartment, DEA agents found Wilson-Grant in a bedroom and arrested her on drug-trafficking charges, and found other items, including airline stickers in Wilson-Grant's name and Panamanian newspapers.
Before trial, Wilson-Grant moved to suppress the items seized in the search, arguing first, that the anticipatory warrant was void because, at the time it was issued, there was no probable cause to believe that contraband was located in Caballero's apartment, and second, that even if the warrant was validly issued, the condition which governed its execution -- that the cocaine be delivered to the premises -- had not yet occurred when the DEA agents entered the apartment and conducted the search.
The district court rejected Wilson-Grant's arguments and denied the motion to suppress. At trial, when the evidence was offered by the government, Wilson-Grant renewed her objections, but Judge Sifton ...