Author: Jim Chapman
Before his trial on gun and drug charges, Defendant Edwin Calligan moved to suppress evidence from the search of a house that he frequented. Calligan argued that the underlying search warrant was anticipatory and that it 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. The United States District Court for the Northern District of Indiana disagreed and concluded that the search warrant was, in fact, supported by probable cause and had no triggering condition. Accordingly, the District Court admitted the disputed evidence, and a jury convicted Calligan. The relevant facts on appeal are as follows.
The mother of Calligan’s girlfriend owned the house at issue, which was located in Fort Wayne, Indiana. Jonathan Goehring, a Special Agent from the Department of Homeland Security, obtained the search warrant for the home. Agent Goehring’s 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) addressed to that house with Calligan as the addressee. Calligan had received more than fifty (50) international shipments at that house (including four in the past several weeks), and local police had recently seen Calligan’s car parked in the driveway.
Calligan also had a lengthy criminal history. Agent Goehring reported that Calligan had 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 that the shipper had mailed to a different addressee.
Agent Goehring further explained that, in his experience, traffickers often store drugs, packaging materials, cash proceeds, documentation, and guns at homes they do not own. Accordingly, Agent Goehring 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 that his “intention . . . to make a controlled delivery of the [package] containing the 5F-ADB” to the house, saying he would (“will”) execute the search warrant after the delivery.
A United States Magistrate Judge issued a search warrant for the house at issue saying that 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 the police did deliver the package, the package did not contain any drugs. Rather, agents had replaced the controlled substance with flour and brown sugar. After Calligan accepted the package, the officers executed the search 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 search warrant return that followed, Agent Goehring inaccurately reported that the police had also recovered a kilogram of 5F-ADB, i.e., the package’s original contents.
Calligan was subsequently charged with federal gun and drug offenses. Calligan, then, filed two motions to suppress.
In the first motion, Calligan argued that, because the search warrant application provided that the police would deliver actual drugs to him, the agent’s replacement of the drugs with flour and sugar took the search outside of the search warrant’s scope. In other words, Calligan characterized this replacement action as an “anticipatory warrant” where the “triggering condition” for probable cause had not been satisfied.
The District Judge referred this first suppression motion to a Magistrate Judge—the same judicial officer who had issued the search warrant—for an evidentiary hearing. At that hearing, Agent Goehring testified that he was familiar with anticipatory warrants but that he had not sought one in this case. Instead, Agent Goehring testified that he believed that there was probable cause without any controlled delivery and that he had mentioned the delivery only because he had predicted making it as part of executing the warrant. Agent Goehring also testified that he had replaced the drugs because, otherwise, he would have had to have included a tracking device—a step that might have endangered the officers if Calligan found the device before the search began given Calligan’s violent history.
However, Agent Goehring acknowledged that he thought through that problem only after obtaining the search warrant. As for the incorrect information in the return, Agent Goehring testified that it was a mistake, and he denied intending to deceive anyone.
The Magistrate Judge recommended denying Calligan’s motion. The Magistrate Judge determined that Agent Goehring had not meant to condition the search warrant on a delivery of actual drugs, and he did not include that condition in his affidavit. Likewise, the Magistrate Judge did not separately impose such a condition on the warrant. In any event, the Magistrate Judge found that there was probable cause even without the controlled delivery. Over Calligan’s objections, the District Judge adopted the Magistrate Judge’s findings and recommendations and denied the motion, as well as Calligan’s later motion to reconsider.
In his second motion to suppress, Calligan argued that Agent Goehring’s warrant application relied on materially false representations (i.e., that the 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 because the replacement of the drugs was immaterial. The District Judge agreed and denied this motion second motion to suppress.
Eventually, a jury convicted Calligan on all counts, and he was sentenced to 210 months in prison. Calligan then filed a timely notice of appeal to the United States Court of Appeals for the Seventh Circuit. United States v. Calligan, 8 F.3d 499 (7th Cir. 2021).
On appeal, Calligan renewed his argument that the search warrant was anticipatory and that replacing the drugs with flour and sugar meant that the triggering condition went unsatisfied so that probable cause for the search never existed. Alternatively, Calligan argued that Agent Goehring’s failure to tell the issuing Magistrate Judge about this replacement meant that the search warrant improperly rested on materially false information.
The Seventh Circuit disagreed and concluded that the search warrant was not anticipatory and that the delivery of the actual drugs to Calligan was not a triggering condition. According to the Seventh Circuit, no language in the search warrant or the affidavit conditioned probable cause upon an anticipated delivery. Agent Goehring testified that he was not seeking an anticipatory search warrant, and the Magistrate Judge found Agent Goehring’s testimony to be credible.
Additionally, the Seventh Circuit found that the Magistrate Judge correctly concluded that there was probable cause even without the delivery of actual drugs. Probable cause is established when, considering the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
The Seventh Circuit explained that, when he issued the search warrant, the Magistrate Judge reasonably found a fair probability that the house contained evidence of drug crimes. Agent Goehring’s affidavit established that a shipper, who had sent illegal drugs to other addresses, sent a package to the house, addressed to Calligan, containing a distribution quantity of a controlled substance. The affidavit further established that Calligan’s car had been parked at the house and that he had recently received other international deliveries there. Finally, Agent Goehring opined that, in his experience, drug traffickers often keep drugs, records, packaging supplies, cash, and guns where they live (even if they do not own the property), and the Magistrate Judge who issued the search warrant was entitled to rely on that experience in issuing the warrant.
That left Calligan’s contention that Agent Goehring knowingly made false, material statements in order to obtain the search—specifically, that agents would deliver actual drugs before searching the home. Calligan argued that Agent Goehring’s misstatement on the search warrant return (i.e., that the drugs from the intercepted package were found in the resulting search) constituted evidence of his intent to deceive the Magistrate Judge, and therefore, the District Court erred in denying his motion to suppress.
The Seventh Circuit found that this argument lacked merit. The Seventh Circuit acknowledged that a search warrant is invalid if police obtain it by deliberately or recklessly presenting false, material information. However, to receive a hearing on this point, Calligan had to make an initial showing that Agent Goehring’s incorrect prediction was material to obtaining the search warrant. The Seventh Circuit found that Calligan had not made such a showing because the supposed misrepresentation would not have altered the Magistrate Judge’s probable-cause determination. As the Seventh Circuit explained, there was probable cause for the search even without the delivery of the actual drugs, and Agent Goehring error in filling out the warrant return occurred after the Magistrate Judge had already made his initial probable-cause finding. As such, Agent Goehring’s actions did not affect the validity of the warrant, nor did it constitute convincing proof of anything nefarious on Agent Goehring’s part.
Finally, the Seventh Circuit stated that, even if probable cause technically were lacking, Agent Goehring’s good faith made the evidence obtained as a result of the search warrant admissible because the mere fact that an officer sought a warrant generates a presumption of good faith. Calligan argued that he could rebut that presumption because Agent Goehring was “dishonest or reckless in preparing the supporting affidavit.” But the District Judge credited the agent’s plausible explanation for replacing the drugs, and thus, Agent Goehring was, at worst, negligent in filling out the warrant return. Accordingly, the Seventh Circuit affirmed the District Judge’s denial of both of Calligan’s motion to suppress and also affirmed his convictions and sentence.