United States v. Hernandez-Rodriguez

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
Patrick J. Fisher, Jr. Jane B. Howell
Clerk Chief Deputy Clerk

February 19, 2004

TO: ALL RECIPIENTS OF THE OPINION

RE: No. 02-1238, United States v. Hernandez-Rodriguez
Filed on December 16, 2003

Modifications have been made to this decision. The modifications are
found on page 7, and shown in bold.

Attached please find a revised copy of the opinion.

Sincerely,
Patrick Fisher, Clerk of Court

By: Amy Frazier, Deputy Clerk
 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 16 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 02-1238
JOSE ARTURO
HERNANDEZ-RODRIGUEZ,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 99-CR-292-S)

Submitted on the Briefs:

John W. Suthers, United States Attorney and James C. Murphy, Assistant United
States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Richard A. Hostetler, Denver, Colorado, for Defendant-Appellant.

Before HARTZ, BALDOCK and McCONNELL, Circuit Judges,

McCONNELL, Circuit Judge.
 An anticipatory search warrant is a “warrant which only becomes effective

upon the happening of a future event” – often called the “triggering event” –

which is, more often than not, the controlled delivery of drugs or other contraband

by law enforcement officers. United States v. Hugoboom, 112 F.3d 1081, 1085

(10th Cir. 1997). Anticipatory warrants are generally permissible under the

Fourth Amendment, but care must be taken to describe the triggering event with

sufficient specificity to ensure that any judgment call regarding probable cause is

made by a neutral magistrate and not by the enforcing officer. This case raises

the question whether a warrant that is to be executed when “delivery” of a

package is “made” by an undercover officer posing as a UPS delivery man is

sufficiently specific, and whether it is necessary that this language be contained in

the warrant itself or papers attached to the warrant. 1

Background

The events leading up to the issuance of the warrant in question began on

December 10, 1996, when federal and state Drug Task Force agents in Denver,

Colorado received information from Drug Task Force agents in Cerritos,

California regarding a suspicious UPS package. California authorities determined

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
submitted without oral argument.

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that the package had a fictitious return address and telephone number. They also

found it suspicious that the package was sent via overnight mail costing $35.25,

while the description of the package’s contents was $90.00 in ceramics. The

package was also wrapped tightly in brown paper with an abundance of tape,

appearing to be over-wrapped. The authorities in California forwarded the UPS

package to Denver police, who worked with the state and federal Drug Task Force

in Colorado. When the package arrived at Denver International Airport, task

force agents brought in a trained narcotics canine which “alerted” to the package.

Subsequently, a federal DEA agent, Special Agent Gregory B. Salazar, applied for

and received a search warrant for the package from Denver County Court Judge

Bowers. Upon investigation, the officers found that the package contained three

kilograms of cocaine.

After the agents determined that the package contained drugs, they made an

application to Judge Bowers for a warrant to search the residence to which the

package was addressed. The package was addressed to a Terry Rivera, residing at

4260 Perri Street, Denver, Colorado. Agents noted that Denver contains no street

named “Perri” and therefore sought a search warrant for 4260 Perry Street. The

affidavit from Agent Salazar, supporting the warrant, described the circumstances

surrounding the discovery and search of the package. It explained that the

package was currently in the possession of police officers, and that Detective

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Ketcher of the Denver Narcotics Task Force intended to make a controlled

delivery of the package to the residence. The affidavit further stated that it was

Agent Salazar’s experience that persons trafficking in narcotics and receiving

such packages commonly also possess other controlled substances, weapons,

paraphernalia, drug transaction ledgers and records, and assets, including

currency. The affidavit requested that a search warrant be granted for 4260 Perry

Street in order to search for “additional evidence in regards to the violations of

the Colorado Revised Statutes concerning controlled substances, when the

delivery is made by Det. Kechter.” Judge Bowers issued the search warrant. The

warrant itself did not set forth the condition precedent for execution of the

warrant – namely, “when the delivery is made by Det. Kechter” – but it

“incorporated by reference” Agent Salazar’s affidavit, which contained this

instruction.

The officers executed the search warrant for the residence on the morning

of December 11, 1996. Detective Kechter, dressed as a UPS driver, went to 4260

Perry Street and knocked on the door. A young woman, later identified as

Aracely Rodriguez-Rios, answered the door. It seemed to Detective Kechter that

the woman did not speak English, but they apparently were able to communicate

in a limited manner. Ms. Rodriguez-Rios signed for the package, signing the

name addressed: “Terry Rivera.” After delivery of the package, the agents

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executed the warrant. In their search of the residence, they found two other

occupants – including Appellant Jose Arturo Hernandez-Rodriguez – as well as

two large soap boxes containing between two and four pounds of

methamphetamine. Agents also located two plastic bags containing cocaine,

which had Mr. Hernandez-Rodriguez’s fingerprints on them.

Mr. Hernandez-Rodriguez was subsequently charged in a two count

indictment with one count of conspiracy to possess with intent to distribute

cocaine, and a second count of conspiracy to possess with intent to distribute

methamphetamine, both in violation of 21 U.S.C. §§ 841 and 846. Mr.

Hernandez-Rodriguez was found guilty by a jury on both counts in a trial in the

District of Colorado. The district court granted a post-trial motion for acquittal

on the second count, but found the methamphetamine involved to be relevant to

sentencing factors. Mr. Hernandez-Rodriguez was ultimately sentenced to 235

months in prison.

Prior to his trial, Mr. Hernandez-Rodriguez moved to suppress evidence

gathered pursuant to both the search warrant of the UPS package and the search

warrant for the residence on Perry Street. The district court denied both motions.

It is only the second search warrant, of the residence, that is at issue in this

appeal. The principal issue raised by Mr. Hernandez-Rodriguez in district court

was whether the evidence concerning the drug package provided probable cause

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to justify a search of the entire home. He did not raise the issue posed by this

appeal: whether the warrant and affidavit for search of the residence articulated

the condition precedent for execution of the warrant with sufficient specificity.

The district court, however, raised this issue sua sponte. The court concluded:

I’m not going to suppress it because one sentence, the last sentence
of the affidavit: “In order to search for additional evidence when
delivery is made by Detective Kechter.” There is a condition
precedent. But boy, you are so close, in my opinion it could go
either way.

App., Vol. II, at 105.

On appeal, Mr. Hernandez-Rodriguez presents two arguments relating to

the anticipatory warrant. First, he argues that “[t]he search warrant for the

residence was not a valid anticipatory warrant because neither the warrant nor the

affidavit in support of the warrant set forth a sufficient description of the

triggering event as determined by the issuing magistrate.” Second, he argues that

the warrant was legally insufficient because the warrant itself did not describe the

triggering event, nor was the affidavit describing the triggering event attached to

the warrant at the time it was executed. Aplt. Br. 2. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm the district court’s denial of Mr.

Hernandez-Rodriguez’s motion to suppress, as well as his conviction and

sentence.

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 Analysis

I. Standard of Review

We confront at the outset the standard of review to be applied to the

decision below. As already noted, Mr. Hernandez-Rodriguez did not raise before

the district court the issues he now pursues on appeal. Ordinarily, appellate

courts will not consider arguments for the first time on appeal, and can do so only

if the record is sufficiently developed; when an appellate court reaches an issue

not raised below, review is for plain error. See, e.g., United States v. Avery, 295

F.3d 1158, 1182 (10th Cir. 2002). With respect to his first issue, however, the

district court raised the issue sua sponte and decided the question explicitly on the

merits. As to the second issue, there was no ruling by the district court.

We conclude that when the district court sua sponte raises and explicitly

resolves an issue of law on the merits, the appellant may challenge that ruling on

appeal on the ground addressed by the district court even if he failed to raise

the issue in district court. In such a case, review on appeal is not for “plain

error,” but is subject to the same standard of appellate review that would be

applicable if the appellant had properly raised the issue. Thus, we review de novo

the district court’s determination that the warrant was sufficiently specific with

respect to the triggering event. In reviewing the district court’s denial of the

motion to suppress, we accept the district court’s “factual findings and view the

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evidence in the light most favorable to the government.” United States v.

Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998) (citing United States v. Dahlman,

13 F.3d 1548, 1552 (10th Cir. 1993)). With respect to the second issue, which

was neither raised by Appellant nor resolved by the district court, we review for

plain error. “Under this standard, reversal is warranted only where there is: (1) an

error; (2) that is plain or obvious; (3) that affects substantial rights; and (4) that

seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Avery, 295 F.3d at 1182 (citation omitted).

It may seem counterintuitive that we would apply a more exacting standard

of review when a diligent district court judge thinks to raise and resolve an issue

that a party neglected to raise on its own behalf. This may seem to fall into the

all-too-familiar category of “no good deed goes unpunished.” But the reasons for

requiring a party to raise issues before the district court are to give that court –

which often is in the best position to evaluate a legal issue in light of its factual

context, and to develop the factual record necessary to resolve it – an opportunity

to address the issue in the first instance, and to avoid errors while they are still

avoidable. See Derrick A. Carter, A Restatement of Exceptions to the Preservation

of Error Requirements in Criminal Cases, 46 U. Kan. L. Rev. 947, 950 (1998);

Edward W. Cleary et al., McCormick on Evidence § 52 at 128 (3d ed. 1984).

When an issue is timely raised, this also affords opposing counsel the opportunity

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to argue the point and, perhaps more importantly, to offer relevant evidence.

Here, the district court’s own alertness in raising the issue of the specificity of the

triggering event had the same effect that an argument by Appellant would have

had. Opposing counsel had an opportunity to address the question, the district

judge had the opportunity to rule, and this Court has the benefit of his ruling.

An analogy may be found in the Supreme Court’s interpretation of 28

U.S.C.§ 1331, which limits its jurisdiction over state court decisions to federal

questions that were properly raised by the parties in state court. The requirement

that parties raise an issue in state court as a prerequisite to Supreme Court review

serves much the same function as the requirement that parties raise issues in

district court as a prerequisite to appellate review. Yet the Court has held on

numerous occasions that where a state court has explicitly addressed and decided

the federal question, 28 U.S.C § 1331 is satisfied even if the petitioner or

appellant failed to raise the issue. See, e.g., Orr v. Orr, 440 U.S. 268, 274-75

(1979); Whitney v. California, 274 U.S. 357, 360-61 (1927); Manhattan Life Ins.

Co. v. Cohen, 234 U.S. 123, 134 (1914).

In any event, even if appellate review of the district court’s denial of the

motion to suppress is de novo with respect to legal issues, our review of the

issuing magistrate’s finding of probable cause is very deferential: “Our duty is to

ensure that the magistrate judge had a ‘substantial basis’ for concluding that the

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affidavit in support of the warrant established probable cause.” United States v.

Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (quoting Illinois v. Gates, 462 U.S.

213, 236 (1983)). “The task of the issuing magistrate is simply to make a

practical, commonsense decision whether, given all the circumstances set forth in

the affidavit . . . there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” Gates, 462 U.S. at 238; accord Simpson, 152

F.3d at 1246; United States v. Janus Indus., 48 F.3d 1548, 1552 (10th Cir. 1995).

As we have previously observed, “[b]ecause of the ‘strong preference’ for

searches conducted pursuant to a warrant, the Supreme Court has instructed us to

pay ‘great deference’ to a magistrate judge’s determination of probable cause.”

Nolan, 199 F.3d at 1182 (quoting Gates, 462 U.S. at 236). Ultimately, “[t]he test

is whether the facts presented in the affidavit would ‘warrant a man of reasonable

caution’ to believe that evidence of a crime will be found at the place to be

searched.” Nolan, 199 F.3d at 1183 (quoting Texas v. Brown, 460 U.S. 730, 742

(1983) (plurality opinion)).

For purposes of this appeal, the government has conceded that probable

cause did not exist to search the Perry Street residence until the package was

actually delivered. Gov’t Br. 8. Thus, we need not consider whether the mere

fact that a valuable package of contraband is addressed to a particular place for

delivery constitutes probable cause for a search. On the other hand, for purposes

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of this appeal, Mr. Hernandez-Rodriguez does not question whether probable

cause existed once the delivery had been made and the package had been taken

into the home. The sole questions in this case have to do with the specificity with

which the triggering event – delivery of the package – was described, and whether

that description was required to appear on the face of the warrant or in papers

physically attached to the warrant.

II. Specificity

Mr. Hernandez-Rodriguez argues that the search warrant for the Perry

Street residence was invalid because neither the warrant nor the affidavit in

support of the warrant set forth a sufficient description of the triggering event to

allow the issuing judge to find probable cause. We disagree.

As with all warrants, so with anticipatory warrants, the United States

Constitution commands only that “‘a search . . . not be “unreasonable,” and that

warrants . . . be supported by “probable cause.”’” Hugoboom, 112 F.3d 1085

(quoting United States v. Gendron, 18 F.3d 955, 965 (1st Cir. 1994) (Breyer,

C.J.) (quoting U.S. Const. amend IV)).

[A]s a general proposition the facts put forward to justify issuance of
an anticipatory warrant are more likely to establish that probable
cause will exist at the time of the search than the typical warrant
based solely upon the known prior location of items to be searched at
the place to be searched.

Id. at 1086 (citing Wayne H. LaFave, Search and Seizure § 3.7(c), at 97 (2d ed.

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1987)). Accordingly, we have recognized that

[t]here is nothing unreasonable about authorizing a search for
tomorrow, not today, when reliable information indicates that [the
contraband] will reach the house, not now, but then. Nor does it
seem automatically unreasonable to tie the warrant’s search authority
to the future event that brings with it the probable cause. . . . In
principle, the use of a ‘triggering event’ can help assure that the
search takes place only when justified by ‘probable cause.’

Id. (quoting Gendron, 18 F.3d at 965 (citation omitted)). 2

This Court has rejected any suggestion that an affidavit in support of an

anticipatory warrant must be subjected to “closer scrutiny than an affidavit

seeking the issuance of a warrant which would be effective immediately.”

Hugoboom, 112 F.3d at 1086. Nonetheless, our cases have stressed that “the

warrant or affidavit should express conditions permitting the search to be

conducted only after the anticipated events have taken place.” United States v.

Rowland, 145 F.3d 1194, 1201 (10th Cir. 1998). The articulation of the triggering

event serves two important purposes. First, it ensures that the warrant will not be

2
Mr. Hernandez-Rodriguez cites Colorado precedent that suggests that
anticipatory warrants are not recognized under Colorado law. People v. Poirez,
904 P.2d 880 (Colo. 1995), cited in Appellant’s Br. 18. It is well established,
however, that federal standards govern the admissibility of evidence seized, even
pursuant to a state warrant, in a federal prosecution. See, e.g., United State v. Le,
173 F.3d 1258, 1264-65 (10th Cir. 1999). “The basis for this principle is that ‘the
exclusionary rule is only concerned with deterring [federal] Constitutional
violations.’” Id.at 1265 (quoting United States v. Wright, 16 F.3d 1429, 1437 (6th
Cir. 1994)). “Therefore, the fact that the arrest, search, or seizure may have
violated state law is irrelevant as long as the standards developed under the
Federal Constitution were not offended.” Id. (internal citations, quotations and
brackets omitted).

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executed prematurely, before there is probable cause. Second, and more

importantly, it “maintains judicial control over the probable cause determination

and over the circumstances of the warrant’s execution.” Id. at 1202. If the

triggering event were articulated in terms of an exercise of the officer’s

unfettered discretionary judgment – for example, “when events occur that

establish probable cause” – this would transfer control over probable cause

determinations from the magistrate to the law enforcement officer, and thus

undermine the purpose of the warrant requirment. Accordingly, an anticipatory

warrant is valid only if “the conditions precedent to execution are clearly set forth

in the warrant or in the affidavit in support.” Hugoboom, 112 F.3d at 1085;

Rowland, 145 F.3d at 1201.

As outlined in Agent Salazar’s affidavit, the triggering event in this case

was as follows: Detective Ketcher would dress as a UPS delivery person, deliver

the package to the address, and upon delivery to the address agents would execute

the warrant. See Aff. 2, App. 33. Mr. Hernandez-Rodriquez argues that this

description of the triggering event was not precise enough. Specifically, he

suggests that the term “delivery” would allow the execution of the warrant after

leaving the package on the doorstep.

The district judge commented that the question of specificity of the

description of the triggering event was so “close” that “in my opinion it could go

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either way.” App., Vol. II, at 105. The court concluded, however, that the last

sentence of the affidavit, which contained the words “when delivery is made by

Dectective Kechter,” set forth the condition precedent. In its oral ruling, the

court elaborated:

The big issue is the triggering event. And I conclude that
based upon two statements in the affidavit, the triggering event is
sufficiently set forth; that is, Ketcher will act in an undercover
capacity to deliver the controlled substance to the suspects at the
location of 4260 Perry Street, City and County of Denver. The
search warrant will be granted for that address in order to search for
additional evidence regarding the violation of Colorado Revised
Statutes concerning controlled substances. And the key language is
“when the delivery is made,” which the Court concludes satisfies the
condition precedent. In the absence of the delivery, the warrant
would be void; and the officer has clearly stated that had the delivery
not been accomplished and the contraband – known contraband in the
package not accepted by the residents at 4260 Perry, they would have
not executed the warrant.

App., Vol. II, at 116.

We agree. A magistrate’s issuance of a warrant must be evaluated in

accordance with “practical, commonsense” considerations. Gates, 462 U.S. at

238. As a matter of common sense usage, when a law enforcement officer posing

as a UPS delivery person is instructed to make a “delivery” of a valuable package

containing dangerous contraband, it is unlikely that this instruction would be

understood as authorizing the officer to leave it on the doorstep. Indeed, the

district court found that the police understood the warrant as requiring acceptance

by the residents at 4260 Perry Street. We therefore conclude that “the conditions

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precedent to execution are clearly set forth in the warrant or in the affidavit in

support” of the warrant. Hugoboom, 112 F.3d at 1085.

This conclusion is supported by our precedents. We have recently

reaffirmed that an anticipatory warrant’s “probable cause requirement is satisfied

by reference to a controlled delivery of contraband in the supporting affidavit.”

United States v. Lora-Solano, 330 F.3d 1288, 1292 (10th Cir. 2003) (emphasis

added). “When the warrant affidavit refers to a controlled delivery of contraband

to the place designated for search, the nexus requirement of probable cause is

satisfied and the affidavit need not provide additional independent evidence

linking the place to be searched to criminal activity.” Id. (quoting Rowland, 145

F.3d at 1202-03) (internal brackets and quotations omitted) (emphasis added). In

his brief to this Court, Mr. Hernandez-Rodriguez cites several decisions from this

and other courts upholding anticipatory warrants that described the triggering

events in seemingly more precise and explicit terms. But he cites no decision

holding that an anticipatory warrant authorizing a search upon “delivery” of a

package is constitutionally invalid.

Therefore, the district court did not err in denying Mr. Hernandez-

Rodriguez’s motion to suppress on this ground.

III. Attachment of the Affidavit to the Warrant

Mr. Hernandez-Rodriguez also argues that the district court erred in not

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suppressing the evidence gathered at the Perry Street residence due to the fact that

the condition precedent, or triggering event, was not described in the warrant

itself and the affidavit which described the triggering event was not attached to

the warrant when it was executed. He urges us to adopt the rule of the Ninth

Circuit, announced in United States v. Hotal, 143 F.3d 1223, 1227 (9th Cir. 1998)

(Reinhardt, J.), that the condition for anticipatory warrants must be set forth on

the face of the warrant or the affidavit containing such conditions must be

attached.

That argument is precluded by our precedents. As the Hotal decision itself

noted, Tenth Circuit decisions have explicitly declined to find that the Fourth

Amendment entails such a requirement. Id. at 1226. Our precedents are clear:

“‘[w]e will not posit a Fourth Amendment violation requiring suppression . . .

when constitutionally satisfactory conditions for execution of the warrant are

stated in the affidavit that solicits the warrant, accepted by the issuing magistrate,

and actually satisfied in the execution of the warrant.’” Hugoboom, 112 F.3d at

1086 (quoting United States v. Moetamedi, 46 F.3d 225, 229 (2d Cir. 1995). We

have stated that it is the “preferred practice” for the anticipatory warrant to “itself

set out, or incorporate by reference, the conditions for the warrant’s execution,”

but that “there is no Fourth Amendment violation” when the conditions are set

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forth in the affidavit that solicits the warrant. Rowland, 145 F.3d at 1201 n.2. 3

In so holding, our Fourth Amendment jurisprudence is in accord with that

of the Second, Sixth, Seventh, and Eighth Circuits. See Moetamedi, 46 F.3d at

229; United States v. Rey, 923 F.2d 1217, 1221 (6th Cir. 1991); United States v.

Dennis, 115 F.3d 524, 529 (7th Cir. 1997); United States v. Tagbering, 985 F.2d

946, 950 (8th Cir. 1993). In this good company, we would see no reason to depart

from our earlier cases, even if we were free to do so, which we are not. “Absent

an intervening Supreme Court or en banc decision justifying such action, we lack

the power to overrule” our own precedent. Berry v. Stevinson Chevrolet, 74 F.3d

980, 985 (10th Cir. 1996); see also United States v. Walling, 936 F.2d 469, 472

(10th Cir.1991) (“One panel of the court cannot overrule circuit precedent.”).

In any event, the record does not show whether the affidavit accompanied

the warrant at the time of its execution. Had Mr. Hernandez-Rodriguez raised

this issue in district court, it would have been possible for that court to develop

the record on this point. This constitutes a second and independent basis for

rejecting his argument on appeal.

3
In the context of challenges to warrants based on an insufficiently specific
description of the scope of the warrant, this Court has held that the affidavit in
support of the warrant can cure the want of specificity, but only if the affidavit is
both incorporated in and attached to the warrant itself. United States v. Leary,
846 F.2d 592, 603 (10th Cir. 1988); United States v. Dahlman, 13 F.3d 1391,
1395 (10th Cir. 1993). We have not extended a similar requirement to challenges
to anticipatory warrants based on an insufficiently specific description of the
condition precedent.

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 Conclusion

For the reasons set forth above, the district court’s denial of Mr.

Hernandez-Rodriguez’s motion to dismiss, as well as Mr. Hernandez-Rodriguez’s

conviction and sentence, are AFFIRMED.

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