APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT CR NO. 11-1-0016
On the briefs: Daniel G. Hempey Gregory S. Meyers (Hempey & Meyers LLP) for Defendants-Appellants
Tracy MurakamiDeputy Prosecuting AttorneyCounty of Kaua'i for Plaintiff-Appellee
NAKAMURA, CHIEF JUDGE, AND LEONARD AND REIFURTH, JJ.
A FedEx employee opened a parcel he suspected contained illegal narcotics and discovered approximately eight pounds of marijuana. The FedEx employee notified law enforcement, and the parcel, which was addressed to a Kaua'i residence, was eventually turned over to the Kaua'i Police Department (KPD). A KPD officer applied for an anticipatory search warrant, which is "a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." United States v. Grubbs, 547 U.S. 90, 94 (2006). Anticipatory warrants generally seek authority to search after the occurrence of a future event, referred to as the "triggering condition, " which is often the delivery of a package containing contraband to the premises to be searched. See id.
In his affidavit in support of the anticipatory search warrant, a KPD officer explained that the KPD intended to effect a controlled delivery of the FedEx parcel to the residence to which the parcel was addressed and requested a warrant authorizing a search of the residence after the parcel was delivered. The search warrant itself, however, which was issued by a judge, did not contain the triggering condition and authorized the execution of the warrant "forthwith."
After the controlled delivery was completed and the parcel was taken into the residence, the KPD executed the search warrant. During the search, KPD officers observed the defendants present in the residence, and the officers found the contents of the opened parcel, including the marijuana, in various parts of the residence as well as drug paraphernalia.
The defendants moved to suppress the evidence obtained as the result of the search, challenging the validity of the warrant. The Circuit Court of the Fifth Circuit (Circuit Court) denied the defendants' suppression motion.
On appeal, Defendants-Appellants Jason Curtis (Curtis) and Melissa Hall (Hall) argue that the Circuit Court erred in determining that the search warrant was valid and in denying their motion to suppress evidence. We affirm the Circuit Court.
In Grubbs, the United States Supreme Court held that the Fourth Amendment "does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself[.]" Id. at 99. As explained below, we follow Grubbs and other courts that have come to the same conclusion. In this case, (1) the officer's affidavit made clear that the execution of the search warrant was conditioned on the delivery of the FedEx package to the residence to be searched and (2) this triggering condition was satisfied before the warrant was executed. See United States v. Moetamedi, 46 F.3d 225, 229 (2d Cir. 1995). We conclude, under the circumstances of this case, that the anticipatory search warrant was valid and that the Circuit Court properly denied the defendants' motion to suppress evidence.
A FedEx employee at the Honolulu FedEx sorting facility opened a parcel he suspected contained illegal narcotics. The parcel was addressed to "Jennifer ROBERTSON" at a Kaua'i residence address (Subject Premises). After discovering plastic bags in the parcel that appeared to contain marijuana, the FedEx employee notified law enforcement of his discovery. The parcel and its contents were eventually turned over to the KPD. After testing and weighing the suspected marijuana, the KPD determined that the parcel contained approximately eight pounds of marijuana.
KPD Officer Paris Resinto (Officer Resinto) applied for and obtained a court order authorizing KPD officers to install in the parcel and monitor a tracking device that would permit the KPD to track the location of the parcel and determine when the parcel was opened. In conjunction with obtaining the order for the tracking device, Officer Resinto applied for an anticipatory search warrant to search the Subject Premises for the parcel and its contents, including the tracking device.
Officer Resinto's affidavit in support of the anticipatory search warrant explained that the KPD planned to effect a controlled delivery of the parcel under police surveillance to the Subject Premises to "identify the person(s) involved in this illegal drug shipment"; that the KPD would install the tracking device in the parcel; and that after the tracking device was installed, Officer Resinto and KPD Sergeant Darren Rose (Sergeant Rose) would maintain custody of the parcel until it is delivered to the Subject Premises. The affidavit stated that Officer Resinto "has reasonable grounds to believe that the property described herein will be located in the [Subject Premises] after the time of delivery of the suspect parcel and request that a search warrant issue commanding that a search be made of said residence for said property[.]" The affidavit also requested the issuance of a search warrant to search the Subject Premises "after the time of delivery of the subject parcel[.]"
Based on Officer Resinto's affidavit, a District Court Judge issued a search warrant authorizing KPD officers to search the Subject Premises for the parcel and its contents. The search warrant, titled "ANTICIPATORY SEARCH WARRANT, " did not set forth the triggering condition for the execution of warrant, namely, the delivery of the parcel to the Subject Premises, that was identified in Officer Resinto's affidavit. Rather, the search warrant stated:
Affidavit(s) having been made before me that the property described herein may be found at the location set forth herein and that it falls within the grounds specified by said affidavit(s). And I am satisfied that there is probable cause to believe that the property described herein is located within the property to be searched and that the foregoing grounds for application for issuance of a search warrant exist:
YOU ARE HEREBY COMMANDED forthwith to search:
[The Subject ...