                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                         December 20, 2006
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                             __________________________                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

           Plaintiff - Appellee,

 v.                                                         No. 05-2223
                                                         (D. New M exico)
 JO A Q U IN SER RA N O ,                            (D.Ct. No. CR-04-158 JC)

           Defendant - Appellant.
                          ____________________________

                               OR D ER AND JUDGM ENT *


Before O’BRIEN, M cW ILLIAM S, and M cCO NNELL, Circuit Judges.




       Joaquin Serrano complains of the district court’s denial of his motion to

suppress evidence without an evidentiary hearing. At issue is whether an

anticipatory search warrant was based upon probable cause and otherwise valid

irrespective of the subjective concerns agents may have harbored about its

efficacy. Since the validity of the warrant is measured by objective standards a

hearing to probe the officer’s possible reservations was unnecessary. And, since



       *
         This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
the district court’s analysis of those objective factors was legally correct, we

affirm.

                                   I. Background

      In January 2004, a reliable confidential source (CS) informed Special

Agent Joe M ata that Serrano offered to sell him three kilograms of cocaine for

$17,000.00 each. On January 11, 2004, Serrano told CS he planned to travel the

next day from Roswell to Albuquerque, New M exico, for the drug sale. Serrano

said he would call CS when he arrived. On January 12, Serrano telephoned CS

and stated he had three really good “cars” and would soon be in Albuquerque.

Federal Agent W est taped this conversation.

      W est then authored an affidavit seeking to obtain an anticipatory search

warrant. After stating the background facts (as we have set forth in the paragraph

above) the affidavit continued:

      On January 12, 2004, the CS will make telephonic contact with
      SERRANO and arrange a meet location . . . to negotiate the three-
      kilogram cocaine transaction. During the meeting, the CS will
      introduce an undercover agent. Subsequent to undercover
      negotiations, the undercover agent will direct the CS to travel to
      SERRANO ’s residence . . . to view the cocaine . . . . Upon the CS
      viewing the cocaine that SERRANO intends to sell to the CS and the
      undercover agent, the CS w ill exit the residence and provide
      surveillance agents w ith a pre-determined signal at w hich time agents
      will execute this search warrant.

      This warrant will not be effective and may not be executed until after
      the C S views the cocaine on January 12, 2004 at [Serrano’s
      residence]. If the cocaine is located elsewhere this warrant will not
      be executed.


                                          -2-
(Vol. I, Doc. 58, ¶¶ 10-11).

      That evening, CS met Serrano and Jesus Ramirez at a restaurant where CS

introduced Serrano to Undercover Agent M ata. They negotiated the sale and

agreed it would take place at Serrano’s home later that day. Serrano and Ramirez

stated they would call when the cocaine arrived and also solicited future sales,

assuring their new customers they could provide two kilograms per week.

      At approximately 12:30 on the morning of January 13, 2004, CS contacted

M ata to inform M ata he was with Serrano and the delivery was on its way.

Shortly thereafter, M ata made a recorded telephone call to CS, who handed the

phone to Serrano. Serrano told M ata to come to his house because “they” w ere

pulling in right now. M ata declined, stating he wished to postpone the deal until

later that morning. Following this conversation, M ata called CS and told him to

leave Serrano’s home. A few minutes later, CS met with DEA agents. CS

informed them Serrano had called right after CS left the house to tell him the

cocaine had arrived. Serrano threatened CS with death if the transaction was not

completed. M ata then made two telephone calls to the increasingly agitated

Serrano and eventually arranged for the transaction to occur at approximately ten

that morning, agreeing to pay an additional $1,500.00 to atone for the

postponement.

      At 11:15 that morning, M ata contacted Serrano. Serrano asked whether CS

was going to come to the house to see the cocaine and whether CS had the

                                         -3-
“papers.” At approximately noon, M ata received a call from Serrano who

threatened he would get rid of the cocaine because he wanted to return to

Rosw ell. 1 M ata stated CS would be there in ten minutes. CS immediately went to

Serrano’s house where he was shown three rectangular-shaped bricks w rapped in

black and brown tape. Serrano stated they were cocaine. CS left the house and

gave the pre-determined signal. The agents entered the residence, secured the

premises, and gave the occupants a copy of the anticipatory search warrant.

      Upon entry, the agents found a loaded black Colt .357 revolver w ithin

Serrano’s reach and observed the three rectangular packages on an end table in

the living room. A field test on the contents yielded a positive result for cocaine.

At that point, the agents obtained a second search warrant. They then seized the

3.54 gross kilograms of cocaine, miscellaneous documents, the revolver and other

items listed on the inventory return of the second search warrant.

      On the return portion of the first warrant, the box designating the date and

time the warrant was executed contains the typewritten word “unexecuted.” The

space designated for inventory taken pursuant to the warrant contains the

handwritten word, “unexecuted.” Instead, the second search warrant was returned

and listed the inventory.

      A three-count superceding indictment filed in the United States District




      1
          The record does not contain the reason for the delay.

                                             -4-
Court for the D istrict of N ew M exico charged Serrrano w ith conspiracy to possess

with intent to distribute at least 500 grams of cocaine (Count One), possession

with intent to distribute at least 500 grams of cocaine (Count Two), and

possession of a firearm in furtherance of a drug trafficking crime (Count Three).

Serrano filed a motion to suppress evidence obtained as a result of a w arrantless

entry into his home. The district court held a non-evidentiary hearing at which it

denied the motion. Serrano then entered a guilty plea to Counts Two and Three

of the indictment pursuant to a plea agreement and was sentenced to 120 months

imprisonment. The plea agreement reserved Serrano’s right to appeal the district

court’s suppression decision. This timely appeal followed.

                                   II. Discussion

      The trial court's denial of an evidentiary hearing on a motion to suppress is

reviewed for an abuse of discretion. United States v. Chavez-M arquez, 66 F.3d

259, 261 (10th Cir. 1995). An evidentiary hearing is required only when a

defendant meets his “burden of showing that there are disputed issues of material

fact.” Id. If suppression is “improper for a reason of law appearing on the face

of the motion,” a hearing is not required. Id. In any event, the reasonableness of

the search and seizure is a question of law which we review de novo. United

States v. Rowland, 145 F.3d 1194, 1200 (10 th Cir. 1998).

      “[T]he right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion stands at the very core of the Fourth

                                         -5-
Amendment.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (internal citations and

quotations omitted). Accordingly, a w arrant based on probable cause is generally

required before executing searches and seizures inside a home and, without a

warrant, such action is “presumptively unreasonable.” Id. At issue here is an

anticipatory search warrant. “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, — U.S. — , 126 S.Ct. 1494, 1498 (2006) (quoting 2 W . LaFave, Search

and Seizure § 3.7(c), p. 398 (4th ed. 2004)). As in this case, “[m]ost anticipatory

warrants subject their execution to some condition precedent other than the mere

passage of time — a so-called ‘triggering condition.’” Id. The affidavit attached

to the warrant to search Serrano’s residence states in relevant part: “[the] warrant

will not be effective and may not be executed until after the CS views the cocaine

on January 12, 2004 at [Serrano’s residence]. If the cocaine is located elsew here

this warrant will not be executed.” (Vol. I, Doc. 58, ¶ 11). 2

      Serrano claims the district court erred in refusing to hold an evidentiary

hearing in spite of its legal conclusion that the anticipatory search warrant was




      2
        The warrant stated the cocaine would be viewed on January 12. It was actually
viewed on January 13. At oral argument Serrano conceded the date discrepancy would
not invalidate the warrant under the facts of this case. United States v. Sims, 428 F.3d
945, 955 (10th Cir. 2005) (non-prejudicial and unintentional technical violations of the
warrant do not warrant suppression). Accordingly, we do not discuss it.

                                           -6-
valid and properly executed. He argues an evidentiary hearing would establish

the agents did not enter his home pursuant to the anticipatory warrant because

they had reason to believe it was not valid. He then asserts the agents’ belief is

evidenced by their acts. Specifically, he points to the following facts: (1) the

affidavit for the second warrant made no mention of the first warrant and states

the agents entered merely to secure the residence; (2) when the agents entered,

they did not immediately search, but waited for a second warrant; and (3) the

return on the first warrant states it was “unexecuted.” Based on these events, he

concludes the agents believed the anticipatory warrant was not valid, leaving the

entry warrantless in violation of Serrano’s Fourth A mendment rights.

       W e easily dispose of Serrano’s argument to the extent it is based on the

effect of the agents’ subjective belief. The Supreme Court’s recent decision in

Brigham City, Utah v. Stuart dismantles any contention that an officer’s

subjective belief is relevant to our Fourth Amendment analysis. — U.S. — , 126

S.Ct. 1943, 1948 (2006) (“An action is ‘reasonable’ under the Fourth Amendment,

regardless of the individual officer's state of mind, as long as the circumstances,

viewed objectively, justify the action . . . . The officer's subjective motivation is

irrelevant.”). Serrano cannot transform his argument by arguing the “objective”

facts suggest a w arrantless entry. Here, the undeniable fact is the officers

obtained a warrant to enter Serrano’s home to search for and seize evidence of

drug trafficking. Therefore, the relevant question is w hether the warrant and its

                                          -7-
execution comported with Fourth Amendment protections and whether that

determination requires an evidentiary hearing.

      Serrano contends the agents reasonably believed the anticipatory warrant

was invalid because too many events had to occur prior to the triggering event to

sustain probable cause, and the triggering event in this case was either not met, or

in the alternative, was not sufficiently specific. A hearing is not necessary to

determine the agents properly entered Serrano’s home under the authority of a

valid warrant.

      An anticipatory warrant predicated on too many uncertain future events

may fail to sufficiently establish probable cause:

      Anticipatory warrants are . . . no different in principle from ordinary
      warrants. They require the magistrate to determine (1) that it is now
      probable that (2) contraband, evidence of a crime, or a fugitive will
      be on the described premises (3) w hen the w arrant is executed. It
      should be noted, however, that where the anticipatory warrant places
      a condition (other than the mere passage of time) upon its execution,
      the first of these determinations goes not merely to what will
      probably be found if the condition is met. (If that were the extent of
      the probability determination, an anticipatory warrant could be issued
      for every house in the country, authorizing search and seizure if
      contraband should be delivered-though for any single location there
      is no likelihood that contraband will be delivered.) Rather, the
      probability determination for a conditioned anticipatory warrant
      looks also to the likelihood that the condition will occur, and thus
      that a proper object of seizure w ill be on the described premises. In
      other words, for a conditioned anticipatory warrant to comply with
      the Fourth A mendment's requirement of probable cause, two
      prerequisites of probability must be satisfied. It must be true not
      only that if the triggering condition occurs ‘there is a fair probability
      that contraband or evidence of a crime will be found in a particular
      place,’ but also that there is probable cause to believe the triggering

                                         -8-
      condition will occur. The supporting affidavit must provide the
      magistrate with sufficient information to evaluate both aspects of the
      probable-cause determination.

Grubbs, 126 S.Ct. at 1500 (citations omitted). Because CS had to arrange a

meeting between Serrano and M ata (the undercover agent), negotiations had to

finalize and the parties had to agree the cocaine w ould be transferred at Serrano’s

Albuquerque residence, Serrano contends there was not probable cause to believe

the triggering condition would occur. W e think both prerequisites of probability

were met.

      The affidavit in support of the warrant states CS reported Serrano had

contacted CS to arrange for the sale of three kilograms of cocaine and confirmed

the price at $17,000 each, Serrano told CS he wanted to do the transaction at

Serrano’s residence in Albuquerque, giving a specific address, and he had “three

cars” that were “really good.” The terms and the location of an imminent drug

deal were stated in sufficient detail for the issuing magistrate to find it probable

that a large amount of cocaine would soon be at the described location. The

triggering event was CS’s confirmation that the expected events as detailed in the

affidavit had, in fact, occurred. It was indeed probable that within an indefinite,

but short, time CS w ould view the cocaine at the location identified in the warrant

and signal the agents who would, upon entry, find contraband.

      Serrano also claims the triggering event was either too vague or it never

occurred because CS did not actually “view” the cocaine. Rather, because CS

                                          -9-
saw only three rectangular opaque packages which could have contained any

substance, the condition precedent was not met and therefore the warrant was

“void.” The “conditions precedent to the execution of an anticipatory warrant are

integral to its validity” because they “ensure[] against premature execution of the

warrant,” and “maintain[] judicial control over the probable cause determination

and over the circumstances of the warrant's execution.” Rowland, 145 F.3d at

1202. The specificity required is not “particularity” under the Fourth

Amendment. Grubbs, 126 S.Ct. at 1501. The Fourth Amendment “specifies only

two matters that must be ‘particularly describ[ed]’ in the warrant: ‘the place to be

searched’ and ‘the persons or things to be seized.’” Id. at 1500. Otherwise, “the

conditions governing the warrant's execution should be explicit, clear, and

narrowly drawn so as to avoid misunderstanding or manipulation by government

agents.” Rowland, 145 F.3d at 1202; see also United States v. Hernandez-

Rodriguez, 352 F.3d 1325, 1326 (10th Cir. 2003) (The triggering event must be

described “with sufficient specificity to ensure that any judgment call regarding

probable cause is made by a neutral magistrate and not by the enforcing officer.”).

The necessary particularity “will vary based on the individual facts of each case.”

Rowland, 145 F.3d at 1202.

      Here, the warrant required CS to “view” the cocaine prior to giving the

signal for entry. The anticipatory warrant did not leave either the definition or

occurrence of a triggering event to “an exercise of the officer's unfettered

                                         -10-
discretionary judgment . . . . transfer[ring] control over probable cause

determinations from the magistrate to the law enforcement officer, and thus

undermin[ing] the purpose of the warrant requirement.” Hernandez-Rodriguez,

352 F.3d at 1331. Actually view ing the cocaine is a discrete event, not a

judgment call. Thus “practical, commonsense” considerations convince us the

execution of the warrant was not left to the agents’ unfettered discretion. See id.

The issue is whether CS actually viewed the bargained-for cocaine, as required by

the anticipatory warrant. W hile CS may not have seen cocaine powder, he saw

three rectangular packages w hich Serrano and his co-defendant both specifically

assured him contained one kilogram of cocaine each to be sold for $17,000 per

kilogram. W e think the sight of the packaged material combined with Serrano’s

assurances and the substantial price tag are sufficient to constitute a “viewing.” 3

       In sum, the agents’ subjective belief regarding the validity of the warrant




       3
         Serrano’s supplemental authority does not convince us otherwise. Serrano’s cites
to cases addressing the knowledge of the defendant of the presence of a controlled
substance are inapposite. We are not considering a “beyond a reasonable doubt” standard
but rather, a Fourth Amendment search based on probable cause. In addition, Serrano’s
reliance on State v. Lee, 624 A.2d 492 (Md. 1993) ignores the vastly different
circumstances in this case. There, the Maryland Supreme Court considered an
anticipatory warrant expressly providing it was to take effect “after a purchase of LSD is
confirmed.” Id. at 496. The police failed to confirm the presence of LSD even though
the contraband had been purchased, brought to them, and a field test kit was available to
identify the substance. If the requirements in Lee were applied to this case, the CS would
not only have had to see the cocaine powder, but to conduct a field test in the presence of
the defendant. To require such activity would not only be impractical, but quite possibly
unduly dangerous as well.

                                           -11-
was immaterial. The w arrant was valid and properly executed. The district court

did not abuse its discretion in refusing a hearing because it correctly concluded,

as a matter of law , that the agents entered Serrano’s residence pursuant to a valid

warrant. That said, we need not reach the government’s good faith argument.

AFFIR M ED.

      Judge M cW illiams dissents.


                                        Entered by the C ourt:

                                        Terrence L. O ’Brien
                                        United States Circuit Judge




                                         -12-
