United States v. Steven Ricciardelli

998 F.2d 8, 1993 U.S. App. LEXIS 14891, 1993 WL 210540
CourtCourt of Appeals for the First Circuit
DecidedJune 22, 1993
Docket92-1424
StatusPublished
Cited by146 cases

This text of 998 F.2d 8 (United States v. Steven Ricciardelli) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Steven Ricciardelli, 998 F.2d 8, 1993 U.S. App. LEXIS 14891, 1993 WL 210540 (1st Cir. 1993).

Opinions

SELYA, Circuit Judge.

Defendant-appellant Steven Rieciardelli 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....” Rieciardelli 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 Rieciardelli in a sting operation. After preliminary correspondence elicited interest on Rieciardelli’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 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. Rieciardelli 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. [10]*10Following 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 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 disbursement 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 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, 110 S.Ct. 348, 107 L.Ed.2d 336 (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].... ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (collecting eases). 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. [11]*11The 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, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (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.

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Cite This Page — Counsel Stack

Bluebook (online)
998 F.2d 8, 1993 U.S. App. LEXIS 14891, 1993 WL 210540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-steven-ricciardelli-ca1-1993.