US v. Ricciardelli
Case Date: 06/22/1993
Court: United States Court of Appeals
Docket No: 92-1424
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________ No. 92-1424 UNITED STATES OF AMERICA, Appellee, v. STEVEN RICCIARDELLI, Defendant, Appellant. _________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Andrew A. Caffrey, Senior U. S. District Judge] ___________________________ _________________________ Before Torruella, Selya and Stahl, Circuit Judges. ______________ _________________________ John H. LaChance, with whom LaChance & Whatley was on brief, ________________ __________________ for appellant. Robert E. Richardson, Assistant United States Attorney, with ____________________ whom A. John Pappalardo, United States Attorney, was on brief, ___________________ for appellee. _________________________ June 22, 1993 _________________________ SELYA, Circuit Judge. Defendant-appellant Steven SELYA, Circuit Judge. ______________ Ricciardelli 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 . . . ." Ricciardelli 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 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 Ricciardelli in a sting operation. After preliminary correspondence elicited interest on Ricciardelli'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 2 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. Ricciardelli 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. Following 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 II. ANALYSIS We divide our analysis of this case into segments. We first discuss the constitutionality of anticipatory search 3 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. 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 dispersement 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 ____________________ 1We cannot escape this issue for, if anticipatory search warrants are valid at all, the rules pertaining to their issuance will necessarily determine the legal sufficiency of the warrant obtained in this case. 2To be sure, an anticipatory warrant can be directed toward the search of a person instead of a place. For ease in reference, however, we speak throughout this opinion of searches of places rather than of persons (although we note that the same principles apply in either case). 4 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 (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] . 5 . . ." United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir. _____________ ________ 1987) (collecting cases). 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. The 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 (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. Moreover, the method of the Fourth Amendment inserting a neutral, detached judicial officer as a buffer between a citizen's privacy 6 rights and potential government overreaching works equally as well in connection with anticipatory warrants. In either instance, contemporary or anticipatory, the focal point of the magistrate's inquiry is whether there is probable cause to think that the contraband will be at the place to be searched at the time of the contemplated intrusion. That the event justifying the intrusion has not yet occurred does not distort the decisionmaking process. Rather, the magistrate must simply widen his horizons to take into account the likelihood that the triggering event will occur on schedule and as predicted in making his probable cause determination.3 Mindful of these considerations, we find it unsurprising that every circuit to have addressed the question has held that anticipatory search warrants are not categorically unconstitutional. See, e.g., United States v. Tagbering, 985 ___ ____ ______________ _________ F.2d 946, 950 (8th Cir. 1993); United States v. Wylie, 919 F.2d _____________ _____ 969, 974-75 (5th Cir. 1990); United States v. Goodwin, 854 F.2d _____________ _______ 33, 36 (4th Cir. 1988); United States v. Goff, 681 F.2d 1238, ______________ ____ 1240 (9th Cir. 1982); United States v. Lowe, 575 F.2d 1193, 1194 _____________ ____ (6th Cir.), cert. denied, 439 U.S. 869 (1978); United States ex _____ ______ _________________ ____________________ 3This is not very different than a magistrate issuing a warrant for a wiretap a warrant which, in actuality, contemplates a "seizure" of specific oral communications which, by definition, do not exist at the time of the warrant's issuance. Such a warrant can appropriately be viewed as an anticipatory warrant for the seizure of words: the magistrate issues the warrant on the basis of a substantial probability that crime-related conversations will ensue. Clearly, such warrants are permitted under the Fourth Amendment. See Katz v. United ___ ____ ______ States, 389 U.S. 347, 354-55 (1967); Berger v. New York, 388 U.S. ______ ______ ________ 41, 63 (1967). 7 rel. Beal v. Skaff, 418 F.2d 430, 432-33 (7th Cir. 1969); see __________ _____ ___ also United States v. Nixon, 918 F.2d 895, 903 n.6 (11th Cir. ____ _____________ _____ 1990) (dictum). We, too, believe that there is no Fourth Amendment infirmity indigenous to anticipatory search warrants although such warrants must, of course, be issued under proper circumstances, upon a proper showing, and with proper safeguards. We hold, therefore, that when law enforcement personnel offer a magistrate reliable, independent evidence indicating that a delivery of contraband will very likely occur at a particular place, and when the magistrate conditions the warrant's execution for the search of that place on that delivery, the warrant, if not overbroad or otherwise defective, passes constitutional muster. That the contraband has not yet reached the premises to be searched at the time the warrant issues is not, in constitutional terms, an insuperable obstacle. B. Exigent Circumstances. B. Exigent Circumstances. _____________________ Appellant next suggests that, even if anticipatory warrants are not invalid per se, their use must be confined to ___ __ circumstances in which time is of the essence, e.g., drug cases, ____ where a significant danger lurks that the evidence might be lost if the search is not made in close temporal proximity to the contraband's delivery. We disagree: the absence of exigent circumstances and the government readily concedes that none are present here does not outlaw the use of an anticipatory warrant. We need not linger. The Eighth Circuit recently 8 rejected this precise argument. In Tagbering, the court stated _________ that the presence or absence of exigent circumstances is irrelevant in determining whether an anticipatory search warrant should issue. See Tagbering, 985 F.2d at 950 n.6. We share this ___ _________ view. Where the probable cause requirement for an anticipatory search warrant has been fulfilled, there is no necessity for an independent showing of exigent circumstances. Cf. United States ___ _____________ v. Panitz, 907 F.2d 1267, 1270 (1st Cir. 1990) (reiterating that ______ where a vehicle search is supported by probable cause, no exigency need exist to justify warrantless search). The logic behind this conclusion is inescapable.4 Probable cause is probable cause; the justification for a search does not vanish merely because the circumstances are such that the evidence could have been obtained through a more familiar method. See United States v. Johns, 469 U.S. 478, 484 (1985); ___ _____________ _____ United States v. LaFrance, 879 F.2d 1, 4-5 (1st Cir. 1989); ______________ ________ United States v. McHugh, 769 F.2d 860, 865-66 (1st Cir. 1985); ______________ ______ see also United States v. Rabinowitz, 339 U.S. 56, 66 (1950) ___ ____ ______________ __________ ("The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable."). That the authorities might often be better positioned in child ____________________ 4Indeed, as both Tagbering and Panitz point out, if exigent _________ ______ circumstances exist, there is, by definition, no need for any kind of search warrant. See Tagbering, 985 F.2d at 950 n.6; ___ _________ Panitz, 907 F.2d at 1270 & n.3. The other side of the coin is ______ equally revealing: exigent circumstances will rarely, if ever, be present in child pornography cases, as history teaches that collectors prefer not to dispose of their dross, typically retaining obscene materials for years. 9 pornography investigations than in drug investigations to obtain a conventional search warrant does not cheapen the value of the magistrate's initial probable cause determination and, thus, "is not dispositive of any relevant issue." Panitz, 907 F.2d at 1271 ______ n.3. Consequently, we hold that an otherwise valid anticipatory warrant does not fail merely because the officers might have lost nothing by waiting until the delivery had been completed before obtaining a warrant. C. Definiteness. C. Definiteness. ____________ We now reach the crux of the suppression issue: Was the warrant fatally defective because it failed to forge a sufficient link between the arrival of the videotape and the proposed search of appellant's abode? We think that it was. Although anticipatory search warrants are not constitutionally foreclosed, see supra Part II(A), a warrant ___ _____ conditioned on a future event presents a potential for abuse above and beyond that which exists in more traditional settings: inevitably, the executing agents are called upon to determine when and whether the triggering event specified in the warrant has actually occurred. Consequently, magistrates who are asked to issue such warrants must be particularly vigilant in ensuring that the opportunities for exercising unfettered discretion are eliminated. To satisfy these concerns, the magistrate must set conditions governing an anticipatory warrant that are "explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents." Garcia, 882 F.2d at 703-04; ______ 10 accord Tagbering, 985 F.2d at 950. ______ _________ There are two particular dimensions in which anticipatory warrants must limit the discretion of government agents. First, the magistrate must ensure that the triggering event is both ascertainable and preordained. The warrant should restrict the officers' discretion in detecting the occurrence of the event to almost ministerial proportions, similar to a search party's discretion in locating the place to be searched. Only then, in the prototypical case, are the ends of explicitness and clarity served. Second, the contraband must be on a sure and irreversible course to its destination, and a future search of the destination must be made expressly contingent upon the contraband's arrival there. Under such circumstances, a number of courts have found anticipatory search warrants to be valid. See, e.g., Nixon, 918 F.2d at 903 n.6; United States v. ___ ____ _____ ______________ Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988), cert. denied, 490 _________ _____ ______ U.S. 1005 (1989); Goodwin, 854 F.2d at 36; United States v. Hale, _______ _____________ ____ 784 F.2d 1465, 1468-69 (9th Cir.), cert. denied, 479 U.S. 829 _____ ______ (1986); Goff, 681 F.2d at 1240. We adopt the "sure and ____ irreversible course" standard as a means of judging the validity of anticipatory warrants. It is at this juncture, however, that we part company with the government. The sure course standard functions as a proxy for the actual presence of the contraband at the locus to be searched. It offers the magistrate a trustworthy assurance that the contraband, though not yet on the site, will almost 11 certainly be located there at the time of the search, thus fulfilling the requirement of future probable cause. See, e.g., ___ ____ Hale, 784 F.2d at 1468 (finding a warrant for child pornography ____ that was to be delivered to defendant at his home to be "on a sure course to its destination" and, hence, valid); Goff, 681 ____ F.2d at 1240 (finding the requirement met where defendant boarded an airplane and agents then procured a warrant to search him at the flight's terminus). Implicit in this standard is the recognition that the evidence must be on an ascertainable course so that the event on which the warrant is conditioned bears a definite relationship to the premises to be searched. It is, moreover, imperative that the warrant establish not only this kind of tri-cornered nexus between the criminal act, the evidence to be seized, and the place to be searched, but also that the nexus incorporate a temporal dimension. The important privacy interests protected by the Fourth Amendment make it incumbent upon the magistrate to craft the warrant with explicit, clear, and narrowly drawn conditions governing its execution to ensure that the anticipated nexus will actually exist if and when the warrant is executed. Phrased another way, the event that triggers the search must be the delivery of the contraband to the ______ premises to be searched, thereby leaving as little as possible to _______________________ the discretion of the agent executing the warrant. See 2 LaFave, ___ supra 3.7(d), at 101-02. _____ The instant warrant imposed no such strict conditions. To the contrary, it overlooked (or, at least, did not address) 12 the need for establishing a nexus between the triggering event and the place to be searched. Here, the warrant authorized a search not of appellant's person but of his home, for evidence relating to his dealings with child pornography distributors. The search was to be triggered by delivery of the videotape. Thus, the very premise on which the warrant rested was that the videotape's arrival would signal the existence of probable cause to believe that evidence of a crime the videotape itself as well as evidence of criminal predisposition or other nefarious activity was likely located in the dwelling. The warrant's text, however, completely ignored this connection, conditioning the search not on the arrival of the videotape at the place to be searched, but, rather, on appellant's personal receipt of the videotape, wherever he might be and wherever he might take his prize. By the terms of the warrant, once appellant retrieved the package at the post office, the postal inspectors could have searched his abode whether or not appellant brought the contraband there. An anticipatory search warrant that cedes such great discretion to the executing agents cannot withstand constitutional scrutiny. In United States v. Hendricks, 743 F.2d 653 (9th Cir. _____________ _________ 1985), cert. denied, 470 U.S. 1006 (1986), the Ninth Circuit _____ ______ grappled with an almost identical nexus problem when considering the validity of an anticipatory warrant. There, a package containing contraband was shipped in a way that required defendant to pick up the package personally, rather than merely 13 having it delivered to his home. See id. at 653. Even though ___ ___ the contraband actually arrived at defendant's residence, the Ninth Circuit invalidated the warrant on the ground that it failed to forge the requisite link between the described premises and the illegal activity. See id. at 655. The court reasoned ___ ___ that, although the warrant listed a specific location to be searched, once the box was picked up any number of circumstances might intervene to snuff out a future connection between it and the premises. See id. at 654-55. ___ ___ The case at hand parallels Hendricks in important _________ respects.5 Here, as in Hendricks, the package, once retrieved, _________ could have been taken anywhere. Here, as in Hendricks, the _________ conditions governing the execution of the anticipatory search warrant were extremely susceptible to the discretion of the executing officers. Here, as in Hendricks, the warrant was too _________ broadly drawn in that it did not ensure that the contraband was on a sure course to the premises to be searched. Here, as in Hendricks, even though the defendant happened to take the _________ contraband home, the warrant did not establish an adequate three- way nexus between the criminal activity, the evidence to be seized, and the premises. It follows inexorably that here, as in Hendricks, the search warrant was invalid. _________ Nor can we read the warrant as treating the search of ____________________ 5To be sure, the case at hand differs from Hendricks in the _________ respect that, here, the authorities made an abortive attempt to deliver the package directly to the defendant's residence. We do not consider this distinction to possess decretory significance. 14 appellant's abode as an event separate from his receipt of the videotape. The affidavit supporting the warrant bases the postal inspector's conclusions anent probable cause upon appellant's future receipt of the videotape at his home. What is more, it is the triggering condition of appellant's receipt of the videotape at home that eliminates alternative possibilities, say, that appellant was a runner for some other person, or simply an internuncio, thereby producing probable cause to believe that appellant is a collector of child pornography and, hence, that his residence likely contains evidence of his criminality. See, ___ e.g., id. at 654 (invalidating warrant where triggering event was ____ ___ not certain and independent probable cause did not exist). Therefore, unless the search can be saved on some other theory, an inquiry to which we now turn, the fruits of the search must be suppressed.6 D. Consent. D. Consent. _______ The government asseverates that any infirmity in the search warrant was assuaged by appellant's supposed consent to the postal inspectors' seizure of the videotape. We reject this ____________________ 6Our concurring brother takes the view that the warrant cannot stand because it was based in part on stale information. See, e.g., United States v. Bucuvalas, 970 F.2d 937, 940 (1st ___ ____ ______________ _________ Cir. 1992) (discussing criteria for reliability of information on which probable cause determination is based), cert. denied, 113 _____ ______ S. Ct. 1382 (1993). We find this proposition troubling, as it overlooks the undeniable fact that, in addition to what transpired in the past, the affidavit also contains ample "non- stale" information concerning appellant's ordering of illicit materials from Globe-Tex shortly before the search warrant issued. In any event, given our conclusion that the warrant is void for indefiniteness, we need not resolve the staleness question. 15 asseveration on three grounds. In the first place, the record discloses no finding by the district court that appellant consented to a seizure. Second, even if appellant voiced his consent, a court could not plausibly find such consent to have been voluntary in the atmosphere created by the postal inspectors' execution of the invalid warrant. See, e.g., United ___ ____ ______ States v. Maragh, 894 F.2d 415, 419-20 (D.C. Cir.) (finding that ______ ______ consent does not cure an unlawful seizure), cert. denied, 498 _____ ______ U.S. 880 (1990); see also United States v. Twomey, 884 F.2d 46, ___ ____ _____________ ______ 50-51 (1st Cir. 1989) (identifying criteria helpful in determining voluntariness of consent), cert. denied, 496 U.S. 908 _____ ______ (1990). Once appellant was led down the garden path, persuaded that the search warrant was unimpugnable, his subsequent consent must be viewed as merely an accommodation to the authorities. See Florida v. Royer, 460 U.S. 491, 497 (1983); Lo-Ji Sales, Inc. ___ _______ _____ _________________ v. New York, 442 U.S. 319, 329 (1979). At any rate, the consent ________ issue is academic because, as the government concedes, the videotape was within the perimeter of the search warrant (which provided for the seizure of all "objects" related to Globe-Tex Specialties). Inasmuch as the videotape is an immediate fruit of an invalid search warrant, it must be suppressed.7 See Illinois ___ ________ v. Rodriguez, 110 S. Ct. 2793, 2799 (1990). _________ ____________________ 7We need not consider the effect of appellant's alleged consent on the suppression of magazines and other detritus not encompassed by the search warrant. The short, conclusive answer in regard to such items is that the government did not seek to use them against appellant or introduce them into evidence at the trial. Any controversy anent such items is, therefore, moot. See, e.g., Smith v. INS, 585 F.2d 600, 602 (3d Cir. 1978). ___ ____ _____ ___ 16 E. Good Faith. E. Good Faith. __________ The government strains to persuade us that, even if the warrant self-destructs, the evidence seized can be used against Ricciardelli under the good faith exception to the exclusionary rule. We are not convinced. In United States v. Leon, 468 U.S. 897 (1984), the ______________ ____ Supreme Court explained that the exclusionary rule is a deterrent measure designed to ensure compliance with the Fourth Amendment. See id. at 906. The Court believed that there would often be no ___ ___ deterrence when police obtain evidence in reliance on a search warrant that is subsequently found to be defective; "in most such cases, there is no police illegality and thus nothing to deter." Id. at 921. Hence, exclusion of seized evidence under those ___ conditions serves no salutary purpose because that sanction "cannot logically contribute to the deterrence of Fourth Amendment violations." Id. ___ Although weakening the exclusionary rule, the Court did not defenestrate it. The Justices acknowledged that suppression would continue to be appropriate in situations where, notwithstanding the issuance of a warrant, "the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Id. at 919. Thus, to cite two instances, suppression would be ___ proper where the "warrant [is] . . . so facially deficient i.e., in failing to particularize the place to be searched or the ____ things to be seized that the executing officers cannot 17 reasonably presume it to be valid," or the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 923 (citation and ___ internal quotation marks omitted). If, however, the warrant's defectiveness results from mere technical errors, see ___ Massachusetts v. Sheppard, 468 U.S. 981, 984, 990-92 (1984), _____________ ________ bevues by the magistrate not readily evident to a competent officer, see United States v. Bonner, 808 F.2d 864, 867 (1st Cir. ___ _____________ ______ 1986) (suggesting that exclusion of evidence is inappropriate where the magistrate, as opposed to the officers, is responsible for a defective warrant), cert. denied, 481 U.S. 1006 (1987), or _____ ______ borderline calls about the existence of probable cause, see Leon, ___ ____ 468 U.S. at 926 (favoring non-exclusion in situations where the warrant is based on "evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause"), then the evidence may be used, despite the warrant's defectiveness. To summarize, the exclusionary rule is alive and well to the extent that a warrant's defectiveness results from either (1) non-technical errors of a kind that a reasonably prudent officer would (or should) have recognized, or (2) law enforcement officers' acts or omissions of a kind that a reasonably prudent officer would have avoided. See 1 LaFave, supra 1.2(d), at 38 ___ _____ (explaining that searching officer's erroneous understanding of Fourth Amendment limits on his power still presents a compelling case for exclusion). 18 After Leon, how does a court tell whether a defect in a ____ warrant is fatal? In determining whether a reasonable officer should have known that a search was illegal despite a magistrate's authorization, a court must evaluate all the attendant circumstances, see Leon, 468 U.S. at 922 n.23; Earle v. ___ ____ _____ Benoit, 850 F.2d 836, 848 (1st Cir. 1988), keeping in mind that ______ Leon requires not merely good faith, but objective good faith. ____ See United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989). And ___ _____________ _____ when, as now, a government agent asserts good faith reliance on a magistrate's decision to issue a warrant, the court must focus upon the existence vel non of objective good faith at the time of ___ ___ the warrant application. See Malley v. Briggs, 475 U.S. 335, ___ ______ ______ 344-45 (1986); Earle, 850 F.2d at 848. _____ Here, the government fails both parts of the good faith test. After studying the record on appeal, we conclude that the warrant, as issued, contained non-technical defects readily observable to experienced postal inspectors and, moreover, that the inspectors' omissions in the warrant-application process constituted a second, independently sufficient ground for distinguishing this case from Leon. Accordingly, the evidence ____ seized under the anticipatory warrant and introduced at trial should have been suppressed. In connection with the first prong of the test, we find, without serious question, that the defects on the warrant's face were apparent enough that the postal inspectors should have realized that it did not comport with the Fourth Amendment. The 19 law was settled that the conditions governing the execution of anticipatory warrants must be explicit, clear, and narrowly drawn. The instant warrant plainly did not satisfy these criteria; and, furthermore, the principal omission in the warrant the lack of any requirement that the contraband arrive at the premises was both glaring and easily correctable. Examining the postal inspectors' actions in this light, it is crystal clear that they could, and should, have asked the magistrate to condition the search of appellant's home on the delivery of the videotape there; failing both to insert this condition and to recognize the consequences of its omission constituted objectively unreasonable conduct. It follows, then, that attempting to execute an anticipatory search warrant bereft of such a limiting condition fell "outside the range of professional competence expected" of federal agents.8 Malley, 475 U.S. at ______ 346 n.9; see also United States v. Washington, 797 F.2d 1461, ___ ____ ______________ __________ 1473 (9th Cir. 1986) (ruling that "patently overbroad" warrant did not give rise to objective good faith under Leon); United ____ ______ States v. Crozier, 777 F.2d 1376, 1382 (9th Cir. 1985) ______ _______ (concluding that overbreadth in a search warrant comprised "no mere technical error"). ____________________ 8While the standard is one of objective reasonableness, we note that the postal inspectors who orchestrated this operation were veterans of the government's war against child pornography. In the affidavit accompanying the application for the search warrant, one of the postal inspectors stated that he had "been involved in approximately 300 child pornography and child sexual exploitation investigations" and had "personally been involved in the execution of at least 75 search warrants . . . relative to child sexual exploitation investigations." 20 Although the failure to correct evident defects is itself sufficient to support suppression here, it is also true that other omissions attributable to the agents would, independently, have required the same result. Government agents may not trespass beyond the bounds of well-delineated Fourth Amendment procedures and then attempt to blunt the effects of their pererrations by foisting the blame on the magistrate. See ___ Malley, 475 U.S. at 346 n.9; United States v. Baker, 894 F.2d ______ ______________ _____ 1144, 1148 (10th Cir. 1990). This principle applies with especial force where, as in this case, a sting operation, culminating in a controlled delivery, is involved. The government knew the plot; indeed, it invented Globe-Tex and produced the sting from start to finish. Yet, the postal inspectors failed to share the full script of their stage-play with the magistrate. They cannot now fault the magistrate for their bad reviews. In this respect, the case at bar is reminiscent of United States v. Fuccillo, 808 F.2d 173 (1st Cir.), cert. denied, _____________ ________ _____ ______ 482 U.S. 905 (1987). In Fuccillo, we held that the good faith ________ exception would not salvage a search where, inter alia, the _____ ____ warrant did not sufficiently describe the things to be seized, because the officer possessed facts which should have enabled him to describe the property to be seized more accurately. Id. at ___ 177, 178 (stating that the warrant "could have been written with precision to assure that appellee's personal rights would remain inviolate" and that "the agents were reckless in not including in 21 the affidavit information which was known or easily accessible to them"). Where the omission of a key ingredient, known to the law enforcement officers, leads to the subsequent invalidation of the warrant, the government faces a high hurdle in seeking to show objective good faith. When issuing anticipatory warrants, magistrates must rely to a large extent on the expertise of federal agents as to the certainty that the triggering event will occur. Particularly where, as in this case, the agents preset elaborate plans to search and seize, magistrates can only act to ensure respect for the Fourth Amendment's protections if they are informed of the plan's discretionary elements. Thus, the postal inspectors here were responsible for conveying to the magistrate the various possible outcomes in their scheme to deliver the Globe-Tex package to Ricciardelli. In particular, the inspectors should have apprised the magistrate of the (apparently significant) chance that the package would not be delivered to Ricciardelli's home at all a possibility that they undeniably had envisioned.9 Fully informed, the magistrate might have drawn a more finely tuned warrant. See Rivera v. United States, 928 F.2d ___ ______ _____________ 592, 603 (2d Cir. 1991); see also Fuccillo, 808 F.2d at 178 ___ ____ ________ (warning that, in applying for a warrant, agents must "take every ____________________ 9At the suppression hearing, Inspector Dunn, whose affidavit supported the search warrant, testified that the inspectors' plan to execute the search warrant "[d]epend[ed] on what [Ricciardelli] did after he picked it up." His affidavit, however, did not disclose to the magistrate the variety of possible outcomes or the inspectors' contingency plans. 22 step that could reasonably be expected of them"). In fine, the Leon doctrine does not apply in this case ____ both because a reasonably prudent officer should have known that the procured warrant was substantially defective on its face, and because the defect was largely, if not entirely, the result of the officers' incomplete account to the magistrate.10 In the circumstances, the magistrate's imprimatur on the warrant cannot save the day. The exclusionary rule obtains. Suppression of the evidence seized by means of the invalid warrant is appropriate "to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it." Mapp v. Ohio, 367 U.S. 643, 656 (1961). ____ ____ III. CONCLUSION III. CONCLUSION We need go no further.11 Although anticipatory ____________________ 10Although the point is not instrumental to either the analysis or the outcome here, we note that the Leon exception ____ does not absolve government officers from every mistake made in good faith during the execution of a warrant. See, Leon, 468 ___ ____ U.S. at 920; see also United States v. Strand, 761 F.2d 449, 456- ___ ____ _____________ ______ 57 (8th Cir. 1985) (holding Leon inapplicable to seizures outside ____ the scope of a warrant). For instance, Leon's good faith rule ____ would not excuse full-blown mistakes in the execution of a warrant. See, e.g., Maryland v. Garrison, 480 U.S. 79, 89 n.14 ___ ____ ________ ________ (1987) (explaining that, when "police begin to execute the warrant and . . . discover [a] factual mistake[, they] must reasonably limit their search accordingly"). Hence, if a situation arises in which officers wrongly conclude that the triggering event needed to animate an anticipatory warrant has occurred, and proceed to execute a full search in the face of this mistake, we would not review that mistake under Leon's good ____ faith standard. 11After this appeal was fully briefed, but before oral argument, the Ninth Circuit struck down the Protection of Children Against Sexual Exploitation Act, 18 U.S.C. 2251-2255 (1988), of which section 2252(a)(2) is a part, on constitutional grounds. See United States v. X-citement Video, Inc., 982 F.2d ___ ______________ ______________________ 23 search warrants are constitutionally allowable, the warrant used in this case suffered from a fatal defect that was neither cured by any enforceable consent nor subject to amelioration under the Leon doctrine. Accordingly, appellant's motion to suppress the ____ fruits of the search should have been granted. Appellant's conviction is vacated and the district Appellant's conviction is vacated and the district _______________________________________________________ court's denial of appellant's motion to suppress is reversed. court's denial of appellant's motion to suppress is reversed. ____________________________________________________________ Concurring Opinion Follows ____________________ 1285, 1292 (9th Cir. 1992). This issue was neither briefed nor argued before us. Hence, we take no view of the statute's constitutionality. 24 TORRUELLA, Circuit Judge (Concurring). Although I _____________ agree that appellant's conviction should be vacated, I have serious reservations about the majority's approach to that result. The majority unnecessarily addresses the constitutional validity of anticipatory search warrants and, having done that, resolves the issue incorrectly. I begin by describing the areas in which my views are most similar to those of the majority. We both agree that the warrant in this case was utterly unsupported by probable cause. I find, however, that the warrant was tainted by information too stale to carry the crisp reliability necessary to find probable cause. While the majority contentedly dismisses this aspect of the case, ante at 15 n.6, I believe that it provides for the ____ proper resolution of this appeal. As the majority eloquently states, "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." Ante at 2. The activity unearthed by the moribund ____ investigation -- appellant ordered two films from a child pornography dealer -- occurred in 1974. In 1990, postal inspectors conducted a sting which lured appellant to buy forbidden films, and applied for a warrant to search his home for those and other materials. The 1990 operation and warrant application were based, thus, on appellant's activities which occurred sixteen years before. -24- 24 In this circuit, we do not measure staleness merely on the basis of the maturity of the information. United States v. _____________ Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992), cert. denied, 113 _________ _____________ S. Ct. 1382 (1993). Other factors include 1) whether the criminal activity is ongoing or discrete; 2) whether the criminal is entrenched or nomadic; 3) whether the items to be seized are long-lasting or perishable; and 4) whether the premises to be searched are a secure operating base or a mere criminal forum. Id. The application of these factors to the facts of the present __ case, some not fully detailed in the majority opinion, discloses the stagnant heart of this case. First, the statute that appellant is accused of violating, 18 U.S.C. 2252(a)(2), prohibits the receipt of child pornography through interstate commerce or mail. The evidence in the record of this case shows that appellant only engaged in this activity twice, on occasions separated by sixteen years. The activity clearly cannot be described as ongoing. This conclusion is buttressed by the fact that when appellant placed the first order, in 1974, the receipt of child pornography through the mail was not prohibited. An early version of 2252 did not appear until 1978, with a substantial amendment occurring in 1984, ten ___ years after appellant's first order. Thus, appellant's first _____ order was not even illegal. This is a point that must be _______ emphasized. There was no ongoing illegal activity in this case, because appellant acted illegally only once, when the government induced him to |