In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1175

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID A. ELST,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 1:08-cr-00117-WCG-1—William C. Griesbach, Judge.

ARGUED JUNE 5, 2009—DECIDED AUGUST 25, 2009

Before MANION, ROVNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge. On January 16, 2008, Steven

Scully, an investigator with the City of Green Bay

Police Department in Wisconsin, obtained an anticipatory search warrant for the home of David A. Elst.

The warrant was executed on January 18, 2008, after a

confidential informant purchased cocaine (under controlled conditions) at the Elst residence. The officers

executing the warrant found cash, including prerecorded

currency used in the controlled buy, and 700 grams of
2 No. 09-1175

cocaine. An indictment was returned in the district

court charging Elst with conspiracy to distribute

cocaine and possession of cocaine with the intent to

distribute it.

Elst moved to suppress the fruits of the search. The

magistrate judge held an evidentiary hearing and recommended that the motion be denied. Elst objected, and

the district court adopted the recommendation. The

court concluded that the warrant failed to establish probable cause that a triggering event—the delivery of a controlled substance at the Elst residence—would occur or

when it would occur, but nonetheless determined that

the officers relied in good faith on the warrant. It therefore determined that the good faith exception to the

exclusionary rule set forth in United States v. Leon, 468

U.S. 897 (1984), applied.

Following the denial of his suppression motion, Elst

pled guilty to the conspiracy count and was sentenced to

92 months’ imprisonment. The other count was dismissed on the government’s motion. Having reserved the

right to do so, Elst appeals the denial of his motion to

suppress.

I. The Search

On January 16, 2008, Investigator Steven Scully, a

member of the Brown County, Wisconsin drug task force,

obtained (from a Wisconsin state court judge) an anticipatory search warrant for the premises occupied or

owned by David A. Elst at 1566 North Road in the Village
No. 09-1175 3

of Ashwaubenon in Brown County, Wisconsin. Investigator

Scully provided an affidavit in support of the warrant,

indicating that a confidential informant (CI) had made

three controlled buys under the supervision of Scully

and other members of the Brown County Drug Task Force.

In the first, on December 3, 2007, the CI purchased one

ounce of cocaine from Gregory Madsen at Madsen’s

residence at an apartment complex on River Bend Terrace

in the Village of Bellevue, Wisconsin. On December 18,

in the second buy, the CI purchased a half ounce of

cocaine from Madsen, again at Madsen’s apartment.

The third controlled buy, on January 10, 2008, occurred

at Elst’s residence at 1566 North Road. Scully’s affidavit

stated that the CI arranged with Madsen to purchase

two ounces of cocaine from Madsen and his supplier.

Madsen had told the CI that they would be going to

the North Road address to complete the transaction.

Investigator Scully and other task force members conducted surveillance as the CI picked up Madsen at his

residence and drove to Elst’s residence. There they observed Madsen enter the residence and return to the CI’s

vehicle. Shortly thereafter, another vehicle arrived, and a

male and female exited it and entered Elst’s apartment.

Approximately ten minutes later, Madsen exited the

residence and returned to the CI’s vehicle. The CI

reported to Scully later that he gave Madsen $1,600 for

the cocaine as they pulled into the driveway of the

Elst residence, and that after the two individuals had

met with Madsen in the residence, Madsen exited the

residence and provided the CI with what was later
4 No. 09-1175

found to be 55.2 grams of cocaine, and $49. The CI remained under surveillance at all times.

Paragraph 7 of Scully’s January 16, 2008 affidavit—which

was titled “Affidavit in Support [of] Anticipatory

Search Warrant”—stated:

Your affiant anticipates that CI will go to 1667

Riverbe[n]d Terrace and pick up Gregory

Madsen and travel to 1566 North Rd. to purchase

cocaine. If Madsen or another person delivers

a controlled substance or a substance represented

to be a controlled substance to the CI, and the

delivery occurs at 1566 North Rd. or the person

making the delivery comes from or returns to

1566 North Rd., then your affiant requests this

warrant be active for a search of the premises.

The state judge issued the warrant on the same day as

Scully’s affidavit.

The warrant was executed on January 18, 2008. That day

the CI, at Scully’s direction, arranged to purchase

cocaine from Madsen. Madsen told the CI to meet him

at the North Road address. Before the controlled buy,

the CI and his vehicle were searched for currency and

contraband and the CI was provided with $1,580 in

prerecorded “buy money.” The CI then placed a phone

call to Madsen who told the CI that he was already at

the North Road address. When the CI pulled up to the

Elst residence, Madsen was waiting outside for him.

Madsen entered the CI’s vehicle and handed the CI a

baggie apparently containing cocaine, and the CI gave
No. 09-1175 5

The point about when Madsen was observed entering the 1

residence is the only trial court finding that Elst disputes. The

magistrate judge’s report and recommendation (later adopted

by the district judge) indicates that Madsen briefly entered the

CI’s vehicle and then entered the residence before returning

a short time later with the cocaine. The transcript of the suppression hearing discloses that this finding is erroneous.

Investigator Scully testified that the CI told him that Madsen

was waiting outside when the CI arrived at the Elst residence.

Scully did not testify that the CI said anything about Madsen

going into the residence before giving the CI the cocaine. This

error, however, is not consequential to the good faith determination.

Madsen the buy money provided by Scully. Madsen

then entered the residence at 1566 North Road.1

After the controlled buy, the CI left the residence to

meet with Investigator Scully in a nearby parking lot. The

CI related what had occurred and turned over the

cocaine just purchased. Investigator Scully and other

task force members proceeded to the Elst residence. There,

the other officers executed the warrant and searched

the residence. They found more than $4,500 in cash,

including prerecorded currency used in the transaction

that evening, and 700 grams of cocaine. 

II. Does the Good Faith Exception Apply?

The only issue on appeal is whether the district court

erred in relying on the good faith exception to the

exclusionary rule to deny the motion to suppress. We

review the district court’s findings of fact for clear error
6 No. 09-1175

and its legal conclusions de novo. United States v.

Millbrook, 553 F.3d 1057, 1061 (7th Cir. 2009).

But as we consider whether the good faith exception

applies to this search, we must keep in mind how an

anticipatory warrant differs from other search warrants.

“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 W. LaFave, Search and Seizure

§ 3.7(c), at 398 (4th ed. 2004)). Such 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 requires

the issuing judge to determine “(1) that it is now probable

that (2) contraband[ or] evidence of a crime . . . will be

on the described premises (3) when the warrant is executed.” Id. at 96 (emphasis in original). Thus, such a

warrant must satisfy two requirements: there is a fair

probability that contraband or evidence of a crime will

be found in the place to be searched if the triggering

condition occurs and there is probable cause to believe

that the triggering condition will occur. Id. at 96-97.

We are not asked to decide whether the search

warrant issued in this case was supported by probable

cause—the district court concluded that it wasn’t, and

the government doesn’t dispute that on appeal. However,

as our discussion may suggest, a fair argument could

have been made that the warrant here was not defective

at all. After all, the affidavit supporting the issuance of

the warrant was narrowly conditioned on the occurrence
No. 09-1175 7

of a future event, a drug delivery at the Elst residence,

which did subsequently occur. Nonetheless, we will

accept the government’s concession—our focus will be

on whether the officers acted in good faith reliance on

the presumptively defective warrant.

Under United States v. Leon, 468 U.S. 897 (1984), it is

inappropriate to suppress evidence obtained pursuant to

a later-declared invalid warrant if the executing officers

reasonably relied on the warrant. Id. at 922-23; see also

Millbrook, 553 F.3d at 1061-62. That the officers obtained

a warrant is prima facie evidence of good faith.

Millbrook, 553 F.3d at 1062. A defendant may rebut this

by presenting evidence to establish that: (1) the issuing

judge “ ‘wholly abandoned his judicial role’ and failed to

‘perform his neutral and detached function,’ serving

‘merely as a rubber stamp for the police,’ ” United States

v. Olson, 408 F.3d 366, 372 (7th Cir. 2005) (quoting Leon,

468 U.S. at 914); (2) the affidavit supporting the

warrant “was ‘so lacking in indicia of probable cause as

to render official belief in its existence entirely unreasonable,’ ” id. (quoting Leon, 468 U.S. at 923); or

(3) the issuing judge “was misled by information in

an affidavit that the affiant knew was false or would

have known was false except for his reckless disregard

of the truth,” Leon, 468 U.S. at 923. Elst attempts to

rebut the presumption of good faith but fails.

Elst first contends that the good faith exception is

inapplicable because Investigator Scully did not allege

any facts to establish probable cause that contraband

was on a “sure course” to the Elst residence. Along

those lines, Elst argues that Scully’s affidavit contained
8 No. 09-1175

Elst suggests that the state court judge abdicated his judicial 2

role by failing to determine when and if the triggering event

would occur. However, Elst really isn’t claiming that the judge

“wholly abandoned his judicial role” in issuing the warrant

and merely acted as a rubber stamp for police. He offers no

evidence to establish that the judge failed to consider whether

Scully’s affidavit established probable cause to issue a warrant. Nor does Elst present any information to suggest that the

judge failed to act as a neutral and detached judicial officer.

At bottom, Elst’s suggestion that the judge abandoned his

judicial role is simply a variation on his contention that the

affidavit was entirely lacking in indicia of probable cause.

no facts to demonstrate that a triggering condition would

occur, and consequently, the executing officers’ belief in

the existence of probable cause was entirely unreasonable.2

Regarding the “sure course” requirement, some

circuits—even ours—have required a showing that the

contraband was on a “sure course” to the place to be

searched to support a finding of probable cause for an

anticipatory warrant. See United States v. Dennis, 115

F.3d 524, 530 (7th Cir. 1997) (collecting cases). The purpose of the “sure course” requirement is to prevent law

enforcement authorities or third parties from delivering

or causing to be delivered contraband to a residence

to “create probable cause to search the premises where

it otherwise would not exist.” United States v. Brack, 188

F.3d 748, 757 (7th Cir. 1999) (quoting Dennis, 115 F.3d at

529). “The requirement ensures that a sufficient nexus

between the parcel and the place to be searched exists.”

Id. Thus, we have implied that the “sure course” require-
No. 09-1175 9

ment is just one way of satisfying the requirement of a

sufficient nexus between the contraband and the place

to be searched. See id. (stating that even if the “sure

course” requirement applied where the defendant

himself delivered the drugs to his hotel room, the

warrant affidavit clearly showed a nexus between the

drugs and the hotel room); see also Dennis, 115 F.3d at

530 (indicating that proof that “the contraband was on a

‘sure course’ to the destination to be searched would

demonstrate a sufficient nexus” between the contraband

and the place to be searched). Other courts have

explicitly said so. See, e.g., United States v. Penney, No. 05-

6821, 2009 WL 2408721, at *12 (6th Cir. Aug. 7, 2009)

(indicating that the “sure and irreversible course” standard

was adopted to govern typical anticipatory search

warrants—those sought to conduct searches triggered

by a police-controlled delivery); United States v. Rowland,

145 F.3d 1194, 1203 n.3 (10th Cir. 1998) (recognizing

that the “ ‘sure course’ ” standard is one way of satisfying

the traditional nexus requirement of probable cause”).

Where the government is not involved in delivering

or causing to be delivered the contraband, we doubt that

the “sure course” requirement applies. See Brack, 188

F.3d at 757; see also Penney, 2009 WL 2408721, at *12 (declining to apply the “sure and irreversible course” standard

to a search warrant supported by evidence of prior

illicit drug activity in addition to the drug deal arranged

by the CI that connected the residence to be searched

with criminal activity); Rowland, 145 F.3d at 1203 n.3 (“It

is unclear how, or whether, the heightened ‘sure

course’ requirement applies . . . outside the controlled
10 No. 09-1175

delivery context.”). Regardless, Scully’s affidavit clearly

conditions the search on the future occurrence of a

drug delivery to the CI at the Elst residence, and the

search did not take place until law enforcement

confirmed that such a deal did in fact take place. And

the choice of that location was made by Madsen, not the

CI or law enforcement. So reliance on the warrant is not

derailed by “sure course” concerns.

That brings us to Elst’s second contention: The good

faith exception does not apply because Scully created

the circumstances needed to establish probable cause

to believe that contraband was on a “sure course” to Elst’s

residence. While the CI contacted Madsen on January 18

at Scully’s direction, neither Scully nor another law enforcement officer caused the delivery of the cocaine to

Elst’s residence. Neither Scully nor another officer had

control over the cocaine that the CI purchased from

Madsen that evening. And, as stated, neither Scully,

another officer, nor the CI determined the location of

either of the drug transactions at Elst’s residence.

Madsen did. Scully did not create the triggering condition; nor did he create probable cause to search. We

have no reason to believe there was an abuse of the anticipatory warrant in this case. See Dennis, 115 F.3d at 529-30

(discussing the greater potential for abuse of anticipatory

warrants than other warrants because “the government

or a third party, acting either intentionally or accidentally, could mail a controlled substance to a residence

to create probable cause to search the premises where

it otherwise would not exist”); United States v. Leidner, 99

F.3d 1423, 1431 (7th Cir. 1996) (Wood, J., concurring)
No. 09-1175 11

(discussing problem of government manipulation

unique to anticipatory warrants). Therefore, this effort

by Elst to rebut the presumption that the officers acted

in good faith gets him nowhere.

But we are still left with Elst’s assertion that Scully’s

affidavit contained no facts to demonstrate that a triggering condition would occur. (Elst does not dispute that

the affidavit identified a triggering event.) However, he

has not shown that the affidavit was so lacking in

indicia of probable cause as to make entirely unreasonable a belief that probable cause existed.

Scully’s affidavit does contain some indication of

illegal drug activity at Elst’s residence. His affidavit

reveals that Scully had been conducting an investigation

for over one month using the CI which included controlled buys on three separate occasions from Madsen

during the investigation. The controlled buys in

December 2007 took place at Madsen’s residence, each

involving less than one ounce of cocaine. The affidavit

stated that the CI had related to Scully that Madsen

typically had an ounce or less at his residence. The most

recent controlled buy, on January 10, 2008, however, took

place at 1566 North Road. This deal was for two ounces

of cocaine—a greater quantity than that involved in the

earlier buys and more than the amount that the CI had

said Madsen typically had at his apartment. The

affidavit further stated that the CI drove Madsen to 1566

North Road where the CI pulled into the driveway,

Madsen entered the residence, and he returned a

short time later to tell the CI to move his vehicle
12 No. 09-1175

because “they would be coming home shortly.”

According to the affidavit, as Madsen predicted, a brief

time passed and then another vehicle pulled into the

driveway and a male and female exited and entered the

Elst residence. A short time after that, Madsen left the

residence and returned to the CI’s vehicle, handing him

a baggie containing 55.2 grams of cocaine and $49 of the

$1,600 the CI had previously given him.

These facts suggest that although Madsen typically

had an ounce of cocaine at home, he had to go elsewhere

to obtain greater quantities, and the Elst residence at

1566 North Road was one place where he had done so

very recently. Investigator Scully’s anticipation that

Madsen would again deliver cocaine to the CI at 1566

North Road does not amount to probable cause. Nonetheless, his anticipation is based on the ongoing drug

investigation and the CI’s continuing relationship with

Madsen which are suggestive of future transactions.

Scully’s anticipation is also based on his training, experience, and participation in other narcotics investigations.

Experienced law enforcement officers (as well as experienced magistrates) are permitted to draw reasonable

inferences from the facts based on their training and

experience. See, e.g., United States v. Curry, 538 F.3d 718,

729 (7th Cir. 2008) (stating that in issuing a search

warrant a magistrate judge is entitled to draw reasonable inferences about where the evidence is likely to

be found); United States v. Reed, 443 F.3d 600, 603 (7th

Cir. 2006) (indicating that in determining whether

probable cause exists officers are entitled to draw reasonable inferences based on their training and experience).

All of these considerations support the conclusion that
No. 09-1175 13

Scully’s affidavit was not so lacking in indicia of

probable cause as to render official belief in its

existence entirely unreasonable.

Furthermore, once the “triggering condition” occurred,

the officers could have reasonably relied in good faith on

the warrant. The occurrence of the triggering condition

can establish probable cause for the search. See Grubbs,

547 U.S. at 97. The “triggering condition” occurred

before the officers executed the warrant: Madsen delivered

cocaine to the CI outside 1566 North Road and immediately thereafter entered the residence there. The fact

that Madsen was already waiting outside when the CI

arrived and then immediately entered the residence,

apparently with the $1,500 the CI had given him,

suggests that Madsen obtained the cocaine inside the

Elst residence (and returned with the money to pay his

source, perhaps). Otherwise, there was no reason for

Madsen to meet the CI at 1566 North Road—he just as

easily could have had the CI meet him at his apartment or

some other location. Once the triggering condition occurred, the officers had probable cause to search the Elst

residence for cocaine, U.S. currency, and other items

used in connection with drug transactions. It should be

noted that if Scully, instead of relying on the previously

obtained anticipatory warrant, had returned to (or even

telephoned) the judge who had issued the warrant (or

had contacted another judge, for that matter), he could

have presented plenty of probable cause to obtain a

“regular” search warrant for the Elst residence based

on just the events that had taken place there that

evening, to say nothing of the prior transactions.
14 No. 09-1175

Finally, Elst makes a conclusory, undeveloped, oneparagraph argument that Scully knew there was no

triggering condition which he could allege and thus

Scully was reckless and dishonest in representing that

there was probable cause to believe contraband was on

a “sure course” to Elst’s residence. Perfunctory and

undeveloped arguments as well as arguments unsupported by pertinent authority are waived. See United

States v. Hook, 471 F.3d 766, 775 (7th Cir. 2006). Elst

makes this argument only in his summary of arguments

section; he does not develop it in his argument section,

nor does he cite any pertinent legal authority. Therefore,

he has waived the argument that Scully was reckless

and dishonest in portraying that probable cause existed.

Elst has not rebutted the presumption that the officers

acted in objective good faith reliance on the warrant.

Exclusion of evidence is an “extreme sanction” and

“applies only where it ‘results in appreciable deterrence.’ ” Herring v. United States, 129 S. Ct. 695, 700 (2009)

(citations omitted). It would not here. At worst, Investigator Scully negligently failed to include one obvious fact

in his otherwise complete affidavit—that the CI would

make yet another effort to purchase drugs from Madsen

as he had in the past. (Perhaps that fact could have

been inferred from the “If Madsen . . . delivers a controlled substance . . . at 1566 North Rd.” language from

the affidavit.) But even without that allegation in the

affidavit, the officers should not be deprived of good

faith reliance on the warrant. Hence, as the district court

properly found, suppression would be inappropriate in

this case.
No. 09-1175 15

III. Conclusion

We uphold the denial of Elst’s motion to suppress

and AFFIRM the district court’s judgment.

8-25-09