In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3560

United States of America,

Plaintiff-Appellee,

v.

Luis C. Limares,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:99-CR-6--William C. Lee, Chief Judge.

Argued September 28, 2001--Decided October 16, 2001



  Before Posner, Easterbrook, and Kanne,
Circuit Judges.

  Easterbrook, Circuit Judge. Postal
inspectors detected a suspicious parcel
bound from Ft. Wayne, Indiana, to Fresno,
California. Wendy, a drug-detection dog,
gave an alert that served as the basis
for a search warrant. The package turned
out to contain $18,000 in currency and
was sent on its way. The next day the
inspectors came upon a package mailed in
Fresno and bound for Ft. Wayne. Again
Wendy alerted. A second warrant was
obtained. This package contained more
than four pounds of methamphetamine. Most
of this was replaced by an inert look-
alike but some was left for a controlled
delivery; the postal inspectors added a
radio transmitter that would signal the
package’s location and whether it had
been opened.

  The drug-bearing package was addressed
to Ramon Lopez at 148 E. Leidh Street in
Ft. Wayne. The address was misspelled (it
should have been Leith Street) and the
sender’s name was fictitious. Agents
obtained a third search warrant--an
anticipatory authorization to enter 148
Leith St. after the delivery and opening
of the package. Baltazar Ramirez signed
for the parcel, using the name "Ramon
Lopez." Within minutes Ramirez left 148
E. Leith St., toting a bag large enough
to contain the parcel; the radio beacon
told the agents that the unopened parcel
was in the bag. Ramirez walked a few
blocks to 2705 S. Harrison Street, and
agents followed while trying to remain
hidden. One used a cell phone to call an
Assistant United States Attorney to
initiate the process for obtaining a
fourth warrant, but during the call the
agents’ receiver told them that the
parcel had been opened. Whoever opened
the package was bound to notice the
transmitter. Fearing that the occupants
would destroy evidence (not only the
contents of the package but also any
other evidence in the house), agents
entered immediately. They found Ramirez
(who attempted to escape out a back door
with the parcel), Luis Limares, and two
women. Limares soon made inculpatory
statements. With federal agents in
control of the house, others returned to
the courthouse and secured the fourth
search warrant. When executing that
warrant agents found drugs and evidence
of drug dealing in addition to the
methamphetamine inside the parcel from
Fresno.

  After the district court denied a motion
to suppress the statements made and
evidence found at 2705 S. Harrison St.,
Ramirez and Limares pleaded guilty to
possessing methamphetamine with intent to
distribute that drug. Limares reserved
the right to appeal the denial of the mo
tion to suppress and was sentenced to 135
months’ imprisonment. Ramirez agreed to
give up his right to appeal and cut a
better deal by promising to testify
against his confederates, if need be; he
was sentenced to only 70 months’
imprisonment.

  Limares contends that the first two
warrants should not have issued because
Wendy could not reliably detect drugs,
and that the evidence found at 2705 S.
Harrison St. must be suppressed because
the agents entered before securing the
fourth warrant. It is far from clear that
Limares had any privacy interest in the
parcels, which were not sent by or to
him, so the validity of the warrants for
the two parcels may be irrelevant. See
Minnesota v. Carter, 525 U.S. 83 (1998);
Rakas v. Illinois, 439 U.S. 128 (1978).
But we need not decide whether he had
some concealed interest; there is no
problem with any of the searches.
  According to Limares, the agents
defrauded the magistrate who issued the
first two search warrants by asserting
that Wendy reliably detects drugs by
smell. This is impossible, the argument
goes, because so much currency has
acquired at least some drug residue that
dogs today alert more to folding money
than to drugs--exemplified by what
Limares calls the "false alert" to the
first package, which had $18,000 in
currency but no drugs. When seeking the
second warrant agents told the magistrate
that the first package had contained cash
rather than drugs but did not add (as
Limares says they should have) that this
established Wendy’s unreliability. For
all the magistrate knew, Limares
asserted, Wendy alerts to anything within
smelling range and thus is useless at
ferreting out drugs.

  The district judge held a hearing under
Franks v. Delaware, 438 U.S. 154 (1978),
to explore the possibility that the
agents had made materially false
representations about Wendy’s sense of
smell. He concluded that they had not
done so--that Wendy can and does reliably
distinguish drugs from innocuous
substances. That factual finding cannot
be called clearly erroneous, given its
evidentiary support. According to the
record, 62% of Wendy’s alerts were
followed by the discovery of drugs;
another 31% signaled the presence of
currency. Some alerts to currency may
have been false positives, but a
considerable number likely resulted from
currency with unusually high
concentrations of drug residue, a
telltale sign of money sent between drug
dealers to pay for inventory. The $18,000
bound for Fresno had all the earmarks of
such a shipment; people do not conduct
legitimate business by mailing wads of
cash hidden inside stuffed rabbits and
jars of hair cream, as the sender of this
package did. Only 7% of Wendy’s "hits"
are unambiguous false positives,
according to this record. We can’t
exclude the possibility that Wendy’s
success is just a mirror of the agents’
ability to find drug-laden packages to
put under her nose; maybe she would not
fare as well on a randomly selected
sample, but that possibility was not
pursued at the hearing.
  Limares stresses that several
investigations have found that some
molecules of cocaine, heroin, and other
drugs can be found by sophisticated
apparatus on almost all currency. This
has the potential to increase the rate of
false positives, and if the rate becomes
high enough then dogs will no longer be
able to separate drugs from innocent
activities. See United States v. $506,231
in U.S. Currency, 125 F.3d 442, 453 (7th
Cir. 1977). It is inevitable that some
molecules of drugs will adhere to every
Federal Reserve note. Even a small
quantity of drugs has an unimaginably
large number of molecules, and these get
around. A single mole of gas (which would
weigh only 12 grams if all of the atoms
were carbon) contains 6.02 x 1023
molecules. This implies that every living
human breathes in and out, every minute,
millions of oxygen and nitrogen molecules
that were in George Washington’s lungs
when he drew his last breath. Currency is
bound to contain cocaine molecules--and
for that matter some uranium and
plutonium molecules too. But you can’t
make an atomic bomb by combing U235 from
currency that has passed through Hanford
or Los Alamos. Whether you can confuse a
drug-detection dog depends on how
muchcocaine and other drug residue clings
to currency, and on how well dogs can
distinguish among levels of drug residue-
- that is, on how dogs perform in
practice, not, as Limares believes, how
they were trained and "proofed off"
currency. An affidavit for a search
warrant thus need not describe training
methods or give the dogs’ scores on their
final exams. It is enough if a dog is
reliable in the field. Wendy’s handler
testified that she has "never passed by
anyone and suddenly done a turn for their
wallet." The affidavits in support of the
two warrants said that Wendy is reliable,
and the evidentiary hearing proved that
out: even if all alerts to currency are
treated as false positives, Wendy has
been right 62% of the time, enough to
prevail on a preponderance of the
evidence, and "probable cause" is
something less than a preponderance. See
Illinois v. Gates, 462 U.S. 213, 235-36
(1983); Illinois v. Wardlow, 528 U.S.
119, 124-25 (2000).

  If the first two warrants were valid, so
were the second two. But Limares was
arrested, and made inculpatory
statements, before the fourth warrant
(authorizing the search of 2705 S.
Harrison Street) had been issued. He
contends that the agents violated the
fourth amendment by entering 2705 S.
Harrison in advance of that warrant. The
district judge held otherwise, deeming
the circumstances exigent because of the
likelihood that drug dealers would begin
to destroy evidence as soon as they saw
the transmitter. Limares’s response is
that the agents "created" this exigency
by allowing Ramirez to walk from one
building to another with the unopened
package. The agents either should have
arrested Ramirez before he could reach
2705 S. Harrison or should have acted
more quickly to get a warrant, perhaps
over the telephone, see Fed. R. Crim. P.
41(c)(2)(A), before the occupants of 2705
S. Harrison opened the package.

  The first branch of this argument--that
Limares had a right to have the agents
arrest Ramirez before he could reach 2705
S. Harrison--runs smack into Hoffa v.
United States, 385 U.S. 293, 309-10
(1966). Agents are not obliged to make
arrests as soon as possible; they may
continue investigations in order to
acquire additional evidence. If exigent
circumstances intervene, the agents may
act to protect that evidence from
destruction. The risk that one suspect
may visit an unknown place (for which the
agents could not have obtained an
anticipatory warrant) does not require
them to halt an investigation in its
tracks.

  The second branch fares no better.
Perhaps the agents could have moved with
more dispatch to get a warrant, but they
did not "manufacture" the circumstances
that led to the need for haste: Ramirez
did that by moving the package to a new
address and then opening it while the
application for a fourth warrant was
being initiated. The question at hand is
"not whether it was reasonable to procure
a search warrant, but whether the search
itself was reasonable". United States v.
Edwards, 415 U.S. 800, 806 (1974),
paraphrasing Cooper v. California, 386
U.S. 58, 62 (1967). The fourth amendment
does not of its own force require a
warrant for any search. Its text is a
limitation on warrants ("no Warrants
shall issue, but upon probable cause,
supported by Oath or affirmation, and
particularly describing the place to be
searched, and the persons or things to be
seized"), stemming from dissatisfaction
with the use of warrants by the crown
courts during colonial days. See Telford
Taylor, Two Studies in Constitutional
Interpretation 24-47 (1969); Akhil Reed
Amar, The Constitution and Criminal
Procedure: First Principles 3-17, 40-43
(1997). During the last 50 years the
Supreme Court has understood the other
clause of the fourth amendment ("The
right of the people to be secure in their
persons, houses, papers, and effects,
against unreasonable searches and
seizures, shall not be violated") to
require warrants in some circumstances as
essential to the "reasonableness" of
particularly intrusive searches, such as
those into dwellings. See Chimel v. Cali
fornia, 395 U.S. 752 (1969), overruling
United States v. Rabinowitz, 339 U.S. 56
(1950), overruling Trupiano v. United
States, 334 U.S. 699 (1948). Yet warrants
are not the only way to justify entries
as reasonable. Exigent circumstances are
another. See, e.g., Illinois v. McArthur,
531 U.S. 326, 121 S. Ct. 945, 950 (2001);
Warden v. Hayden, 387 U.S. 294, 298-300
(1967). It was reasonable to enter and
secure 2705 S. Harrison to prevent the
destruction of evidence.

  Agents involved in this process seem to
have spent more time seeking warrants
than investigating crime. They obtained
four warrants all told. At oral argument
Limares’s lawyer conceded that, had the
agents sought a telephonic warrant
instead of cranking up the process of
writing an affidavit, one was certain to
have issued. We know that the magistrate
issued a warrant immediately after
receiving a written affidavit, and the
telephonic process--which offers the
judge less time to contemplate and do
legal research--was bound to produce the
same outcome. The agents respected the
privacy of those found within 2705 S.
Harrison by securing the premises but not
conducting a search until the fourth
warrant had been issued. This is a model
of good, even over-cautious, police work;
suppressing the evidence found by these
agents would be a travesty. Principles
such as the inevitable-discovery doctrine
demonstrate the limited scope of the
exclusionary rule. See Murray v. United
States, 487 U.S. 533, 536-41 (1988); Nix
v. Williams, 467 U.S. 431 (1984); United
States v. Jones, 214 F.3d 836 (7th Cir.
2000). But our conclusion is not that the
fourth warrant deprives Limares of a
remedy for over-zealous action by the
agents; it is that the agents acted
lawfully throughout.

Affirmed
