United States v. Calligan

8 F.4th 499

UNITED STATES of America, Plaintiff-Appellee,

v.Edwin CALLIGAN, Defendant-Appellant.

No. 20-1817

United States Court of Appeals, Seventh Circuit.

Argued August 3, 2021

Decided August 6, 2021

Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Beau B. Brindley, Blair T. Westover, Attorneys, Law Offices of Beau B. Brindley, Chicago, IL, for Defendant-Appellant.

Before Sykes, Chief Judge, and Brennan And St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Before his trial on gun and drug charges, Edwin Calligan moved to suppress evidence from the search of a house he frequented. He argued that the underlying warrant was anticipatory and should not have been executed because its triggering condition—the controlled delivery of a package with drugs, addressed to him, that police had intercepted—never occurred. Yet the district court concluded that the warrant was supported by probable cause and had no triggering condition. The court therefore admitted the evidence, and a jury convicted Calligan. Because the district court judge was correct and, in any event, police relied on the warrant in good faith, we affirm.

I.

The mother of Calligan's girlfriend owned the house at issue and it was located in Fort Wayne, Indiana. Jonathan Goehring, a Special Agent from the Department of Homeland Security, obtained the warrant. His supporting affidavit reported that, about ten days earlier, customs agents had intercepted a package containing one kilogram of 5F-ADB (a synthetic cannabinoid and controlled substance, see 21 C.F.R. § 1308.11(d)(73) ), addressed to that house, with Calligan as the addressee. Calligan had received more than 50 international shipments there—including 4 in the past several weeks—and local police had recently seen Calligan's car parked in the driveway. Calligan also had a criminal history: Agent Goehring reported Indiana convictions for attempted murder, criminal recklessness, and unlawfully resisting police, as well as a pending gun-possession charge. As for the foreign shipper of Calligan's package, customs agents had recently found fentanyl analogues in another package the shipper had mailed to a different addressee.

The agent further explained that, in his experience, traffickers often store drugs, packaging materials, cash proceeds, documentation, and guns at homes they do not own. He sought to search the house for those items here.

Finally, Agent Goehring asserted that there was "currently sufficient probable cause for this issuance of this search warrant." But then he noted his "intention ... to make a controlled delivery of the [package] containing the 5F-ADB" to the house, saying he would ("will") execute the warrant after the delivery.

The magistrate judge issued a warrant that said the "affidavit(s), or any recorded testimony, establish probable cause." The magistrate judge's only express condition was that the search take place during daylight on or before June 30, 2017; the expected delivery of the package went unmentioned.

Although police did deliver the package, it no longer contained drugs. Rather, agents had replaced the controlled substance with flour and brown sugar. After Calligan accepted the package, the officers executed the warrant and found money, a gun, and a notebook that contained both the package's tracking number and a recipe for making raw 5F-ADB into a consumable product. In the warrant return that followed, however, Agent Goehring inaccurately reported that police had also recovered a kilogram of 5F-ADB—i.e., the package's original contents.

The seized evidence led to charges against Calligan for possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), importing a controlled substance, see 21 U.S.C. § 952, and attempting to distribute a controlled substance, see id. § 846. And those charges led to two suppression motions at issue here.

In the first motion, Calligan argued that because the warrant application said police would deliver actual drugs to him, the agent's replacement of the drugs with flour and sugar took the search outside the warrant's scope. In doctrinal terms, Calligan was characterizing this as an "anticipatory warrant" where the "triggering condition" for probable cause had not been satisfied. United States v. Grubbs, 547 U.S. 90, 94, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (quoting Wayne R. LaFave, 2 Search and Seizure § 3.7(c) (4th ed. 2004)). The district judge referred this suppression motion to a magistrate judge—the same one who had issued the warrant—for an evidentiary hearing.

At that hearing, Agent Goehring testified that he was familiar with anticipatory warrants but had not sought one here.

Rather, he had believed there was probable cause without any controlled delivery and had mentioned the delivery only because he predicted making it as part of executing the warrant. And, he continued, he replaced the drugs because otherwise he would have had to include a tracking device—a step that he concluded might endanger officers if Calligan found the device before the search began, given his violent history. Agent Goehring, however, thought through that problem only after obtaining the warrant. As for the incorrect information in the return, he testified that it was a mistake; he had not intended to deceive anyone.

The magistrate judge recommended denying Calligan's motion. He determined that Agent Goehring had not meant to condition the warrant on a delivery of actual drugs and did not include that condition in his affidavit; nor had the magistrate judge separately imposed such a condition on the warrant. In any event, there was probable cause without the controlled delivery. Over Calligan's objections, the district judge adopted these findings and recommendations and denied the motion, as well as Calligan's later motion to reconsider.

Then, in a second motion to suppress, Calligan cited Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and contended that Agent Goehring's warrant application relied on materially false representations (i.e., that police would deliver drugs to the home before the search). This time a different district judge (to whom the case had been reassigned) referred the motion to a second magistrate judge. That magistrate judge, in turn, recommended denying the motion without a hearing because Agent Goehring's affidavit yielded probable cause and the replacement of the drugs was immaterial. The district judge agreed and denied this motion too.

Then, at trial, the government relied on the items seized from the home. The jury convicted Calligan on all counts, and he was sentenced to 210 months in prison.

II.

On appeal, Calligan renews his argument that the warrant was anticipatory and that replacing the drugs with flour and sugar meant the triggering condition went unsatisfied, so that probable cause for the search never existed. Alternatively, he contends that Agent Goehring's failure to tell the issuing magistrate judge about this replacement meant the warrant rested on materially false information.

But the warrant was not anticipatory, and delivery of the actual drugs to Calligan was not a triggering condition. Objectively, no language in the warrant or affidavit conditions probable cause upon that anticipated delivery. Subjectively, Agent Goehring testified—credibly, in the view of the magistrate judge who issued the warrant—that he was not seeking an anticipatory warrant. By contrast, the affidavit in Grubbs insisted that the search would "not occur unless and until" the triggering...