The 7th Circuit Court of Appeals agreed with the Northern Indiana District Court that a federal agent’s explanations were plausible and he was “at worst, negligent…” when he obtained a search warrant by telling a magistrate judge a controlled delivery of drugs would be made and then told the magistrate judge the illegal drugs had been recovered even though no drugs had ever been delivered or retrieved.
Jonathan Goehring, a special agent for the Department of Homeland Security, obtained a search warrant for a home in Fort Wayne where Edwin Calligan had been staying. He told the district court magistrate judge, in part, that his intention was to make a controlled delivery of a package containing 5F-ADB which is a synthetic cannabinoid and controlled substance.
The magistrate judge issued the warrant that included the condition the search take place during the daylight on or before June 30, 2017. The expected delivery of the package was not mentioned.
Police did deliver the package but the drugs had been replaced with brown sugar and flour. After Calligan accepted the delivery, the officers executed the 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 return warrant, Goehring inaccurately reported that police had recovered the package’s original contents of 5F-ADB.
Calligan was charged with possessing a firearm as a felon, importing a controlled substance and attempting to distribute a controlled substance. He moved to suppress the evidence, arguing in one of his motions that Goehring’s warrant was anticipatory and since the “triggering condition” for the probable cause, the delivery of 5F-ADB, had not been satisfied, the search was outside the warrant’s scope.
At an evidentiary hearing, Goehring testified he had not sought an anticipatory warrant in part because he believed there was probable cause without any controlled delivery. Also, he told the court he mentioned the delivery only because he predicted making it as part of executing the warrant. As for the incorrection information on the return warrant, he said that was a mistake.
The Northern Indiana District Court let the search stand, in part, because there was probable cause without the delivery of the drugs.
In United States of America v. Edwin Calligan, 20-1817, the 7th Circuit affirmed. The panel agreed there was “fair probability” that the house where Calligan appeared to be staying contained evidence of drug crimes.
Calligan also asserted that that Goehring knowingly made false statements to get the warrant then intended to deceive the magistrate judge by misstating on the return warrant that the drugs had been recovered. However, the appellate court found that argument lacked merit.
“… to receive a hearing on this point, Calligan had to make an initial showing that Agent Goehring’s incorrect prediction was material to the warrant,” Judge Amy St. Eve wrote for the panel, citing United States v. Clark, 935 F.3d 558, 563 (7th Cir. 2019). “He has not. The supposed misrepresentation would not have altered the magistrate judge’s probable-cause determination; as we explained, there was probable cause for the search without the delivery of the actual drugs. And Agent Goehring erred in filling out the warrant return after the magistrate judge had made his initial probable‐cause finding. As such, it does not affect the validity of the warrant. Nor is it convincing proof of anything nefarious on Agent Goehring’s part.”