United States v. Pedro Ernesto McGregor

EDMONDSON, Circuit Judge:

This case concerns the exigent circumstances exception to the requirement for a search warrant before police enter a dwelling. At issue is whether officers who effected a warrantless entry created the exigent circumstances necessitating that entry. We conclude that, under the facts of this case, they did not.

I. FACTS & BACKGROUND

On September 2,1990, United States Customs inspectors at a mail examining facility in Miami examined a package containing a brown leather notebook. The box had been sent from Peru and was addressed to Jorge Chavez in Naperville, Illinois. Cocaine was secreted within the covers of the notebook. The inspectors notified the United States Postal Inspection Service, which decided to execute a controlled delivery. Inspector Cordero took custody of the package and mailed it via registered mail to Chicago.

Cooperating inspectors in Chicago delivered the package to Chavez. He was immediately arrested, and he agreed to cooperate in the investigation. Chavez told the inspectors that the cocaine belonged to appellant, Pedro McGregor, and that Chavez had been instructed to send the cocaine to McGregor in Miami.

After Chavez made two phone calls (that were listened to and recorded by inspectors) to McGregor in which McGregor made incriminating statements, the inspectors decided to do a controlled delivery in Miami. Inspector Pirone obtained a warrant from a United States magistrate judge to put a beeper in the sealed box which would allow a surveillance team to keep track of the package. The beeper would alert the inspectors when the box was opened.

The inspectors, acting with state police, also attempted to get a warrant from a Florida state magistrate to enter McGregor’s home if the beeper sounded, indicating the package had been opened there. But these efforts were abandoned when they were informed that the state warrant would require them to wait fifteen minutes after the beeper sounded to enter the house. The agents felt this kind of delay would give McGregor time to destroy the drugs.

The inspectors executed a controlled delivery at 8:45 p.m. on September 12, 1990 and set up surveillance outside McGregor’s home. The beeper sounded at 2:15 a.m. on September 13. The inspectors rushed to the door and entered.

Once inside, the inspectors read McGregor his rights. After an interview, McGregor acknowledged that he understood his rights and signed a consent form to allow the inspectors to search the house. In the search, the inspectors found the opened package as well as additional cocaine. McGregor then told the inspectors that he had recently trav-elled to Peru, purchased the cocaine, and arranged to have it sent to Chicago.

McGregor was charged with use of a communication facility, the United States mail, in the committing, causing or facilitating the commission of a felony, 21 U.S.C. § 843(b), and possession with the intent to distribute cocaine, 21 U.S.C. § 841(a)(1). Before trial, McGregor moved to suppress the cocaine and his statements because they were obtained after a warrantless entry. The district court denied the motion: the inspectors’ reasonable belief that the evidence would be destroyed after McGregor discovered the beeper created “exigent circumstances” that justified warrantless entry.

McGregor was convicted on both counts. He now appeals the denial of the motion to suppress. He also claims there was insufficient evidence to convict him on Count I.

II. DISCUSSION

A. Warrantless Entry

A warrantless search is presumptively unreasonable. See United States v. Edmondson, 791 F.2d 1512, 1514 (11th Cir.1986). But, when probable cause exists, if “exigent circumstances” make it impossible *1069or impracticable to obtain a warrant, war-rantless entry will be excused. Id. at 1515. The risk of removal or destruction of narcotics is a “particularly compelling” exigent circumstance. See United States v. Young, 909 F.2d 442, 446 (11th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 90, 116 L.Ed.2d 62 (1991).

In this case, inspectors placed a beeper inside a package of cocaine before completing a controlled delivery. Almost six hours after delivery, the beeper sounded, indicating the box had been opened. At this point, the officers monitoring the beeper reasonably believed defendant, to whom the package had been delivered, would discover the beeper and realize he was being watched. And, the officers reasonably perceived that, if they did not move immediately, McGregor might destroy the cocaine. So, exigent circumstances were present in this case at the time the beeper sounded. See id. (objectively reasonable belief that narcotics evidence will be destroyed justifies warrantless search).

But, exigent circumstances will not justify warrantless entry if the exigency was created by those conducting the search. See, e.g., United States v. Tobin, 923 F.2d 1506 (11th Cir.) (en banc), cert. denied, — U.S. -, 112 S.Ct. 299, 116 L.Ed.2d 243 (1991). For example, a warrantless search is not justifiable when police have probable cause and sufficient time to obtain a warrant but create an exigency to avoid the warrant requirement. Id. at 1511; see also, United States v. Scheffer, 463 F.2d 567, 575 (5th Cir.1972).

McGregor claims that the inspectors knew before inserting the beeper that when it sounded, they would need to act immediately; so, they, before the delivery of the drugs, could have gotten a warrant to search the house. He argues that because the inspectors planted the beeper anyway — thereby “creating the exigency” — their warrantless search was unreasonable and all evidence obtained from the search, including his statements, must be suppressed. We disagree.

The planting of the beeper created no exigency. The exigency would result from the parcel’s being opened and the tracing device’s being discovered. A warrant must be executed within a certain amount of time of its issuance and is only valid for certain persons and places. See Fed.Rule Crim.Pro. 41(e)(1). From the record, it appears that the inspectors were unsure about when, where, or by whom this box would be opened, although McGregor was suspected.

In this ease, a beeper was used because the identity of the ultimate holders of the cocaine and the place where the box would be opened were the focus of the inspectors’ interest; and these persons and that place were not yet known. For example, it was entirely possible that McGregor would not open the package, but would instead deliver it to another place and other persons the next day. If that happened, any warrant the inspectors obtained for McGregor or his home would have been worthless, and the police and judicial resources invested in the warrant process would have been wasted.

The inspectors wanted to wait and see who opened the box before they acted to arrest or to search. Before the box was opened, the inspectors had not determined they would enter and search McGregor’s residence; instead, they had determined that they would enter and search the place where the box was opened. This place was unknown and unknowable until the box was opened. In addition, the inspectors had been told by state authorities that no search warrant could be obtained that would not require a fifteen minute wait between the beeper’s alarm and entering the residence. Given the circumstances, including the disposability of drugs, the inspectors reasonably could conclude that a warrant, conditioned on this kind of delay, would be impractical.1 We cannot say that the inspectors acted unreasonably. Cf. Tobin, 923 F.2d at 1511 (officers do not have duty to halt criminal investigation the moment they have enough evidence to establish probable cause, evidence which may be too little to support a criminal conviction) (quoting, Hoffa v. United States, 385 U.S. *1070293, 310, 87 S.Ct. 408, 417-18, 17 L.Ed.2d 374 (1966)). We conclude that the district court’s decision not to suppress the evidence obtained in the search was proper.2

B. Sufficiency of the Evidence

McGregor also argues there was insufficient evidence to convict him on Count I, use of the United States mail in the commission of a felony. See 21 U.S.C. § 843(b). Again, we disagree. Both the conversations recorded between Chavez and McGregor and McGregor’s statements to inspectors indicate McGregor used the United States mail to distribute cocaine. Based on this evidence, a reasonable fact finder could conclude defendant was guilty beyond a reasonable doubt. See United States v. Khoury, 901 F.2d 948, 960 (11th Cir.1990).

AFFIRMED.

. That the inspectors at one time sought a warrant and then changed their minds is not determinative of whether a warrant was constitutionally required at the time of entry.

. Defendant cites United States v. Duchi, 906 F.2d 1278 (8th Cir.1990), as support for his position. Although we think Duchi is distinguishable on the point of the "denouement of a government investigation,” it is not binding on us. To the extent that Duchi would dictate a different result in this case (which we doubt), we decline to follow it.