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United States v. Whited, No. 07-1015 (7th Cir. 08/25/2008)

Defendant Matthew Whited was charged with possession, receipt, and distribution of child pornography based on evidence gathered in a search of his home pursuant to an anticipatory warrant. Federal agents obtained the warrant after Whited ordered a videotape of child pornography from an undercover postal inspector; the warrant was premised upon a successful controlled delivery of the package Whited had ordered. There were two conditions precedent to the search: Whited’s acceptance of the package and entry into his home with it.

Whited challenged the legality of the search under the Fourth Amendment, arguing that one of the conditions precedent in the warrant did not occur-he claimed he was on his front stoop when he accepted the delivery and never entered his house after signing for the package. Federal agents executing the warrant testified otherwise. The district court believed the agents and denied the suppression motion.

Anticipatory warrants are constitutional, and although the testimony at the suppression hearing was conflicting, the district court’s determination that the warrant’s triggering conditions had occurred was not clear error.

  1. Background

In March 2004 an undercover postal inspector received an e-mail responding to an advertisement the inspector had posted on the Internet offering child-pornography videos. The e-mail came from an address later determined to be Whited’s. After an initial exchange of e-mails, Whited sent the inspector $30 for a video depicting child pornography. The inspector then forwarded this information on to the federal Child Exploitation Strike Force in Chicago.

The Strike Force then arranged for a controlled delivery of the package and obtained an anticipatory warrant permitting agents to search Whited’s residence after two conditions were satisfied: (1) Whited accepted the control package; and (2) he entered his house with it.

On July 29, 2004, Postal Inspector Lary Maxwell, dressed as a postal carrier, approached Whited’s home with the control package and rang the doorbell. Whited came down the stairs, accepted the package, and walked to his car. Whether he was inside or outside of the house when he accepted the package is disputed; we will discuss the testimony in more detail in a moment. As Whited was getting into his car, he was detained by FBI agents.

The agents then searched the home and found child pornography in a locked suitcase in a closet, on compact discs, and on the hard drive of Whited’s computer.

After being charged, Whited moved to suppress the evidence seized during the search of his home. The district court denied Whited’s suppression motion, holding that the conditions triggering the execution of the warrant had been satisfied. The court credited the testimony of Inspector Maxwell and Special Agent McDonough and found that Whited had been standing on the threshold between the outer screen door and the inside main door of the house when he received the control package, and then had retreated into the house, however briefly, to close the main door behind him before leaving.

  1. Denial of Suppression Motion

The district court’s denial of Whited’s suppression is subject to a dual standard of review; we review legal conclusions de novo and findings of fact for clear error, giving special deference to the district court’s superior vantage point on matters of witness credibility. United States v. McCarthur, 6 F.3d 1270, 1275 (7th Cir. 1993).

“An anticipatory warrant 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) (quoting 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.7(c), p. 398 (4th ed. 2004)).

Anticipatory warrants generally “subject their execution to some condition precedent other than the mere passage of time-a so-called ‘triggering condition.’ ” Id. An anticipatory warrant may issue if “the magistrate . . . determine[s] (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.” Id. at 96.

The probable-cause inquiry is twofold: there must be a fair probability that contraband or evidence of a crime will be found in the described place if the triggering condition occurs and probable cause to believe the triggering condition will occur. Id. at 96-97.

The focus here, however, is on the execution of the anticipatory warrant, not its issuance. Whited claims one of the warrant’s triggering conditions-his entry into his home with the control package-did not occur. This is a challenge to the district court’s fact-finding at the suppression hearing, which is subject to deferential review for clear error. Here, the district court weighed the conflicting testimony regarding the circumstances of Whited’s receipt of the control package and specifically rejected Whited’s claim that he closed both the inside main door and the exterior screen door behind him before he accepted the package from Inspector Maxwell. Inspector Maxwell and Special Agent McDonough, who was observing Whited’s interaction with Maxwell from the street, both testified that Whited was on the threshold between the doors when he took delivery of the package.

The district court’s findings that Whited received the control package while standing on the threshold between the doors and briefly retreated into the house with it were anticipatory warrant were satisfied, and Whited’s motion to suppress the evidence obtained in the search was properly denied.