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July 1990
ANTICIPATORY SEARCH WARRANTS
By
A. Louis DiPietro, J.D.
Special Agent and Legal Instructor, FBI Academy
The fourth amendment to the U. S. Constitution requires that
search warrants be based on a showing of probable cause. The
probable cause requirement is satisfied when a law enforcement
officer sets forth facts which indicate a fair probability that a
crime has been committed and that evidence of that crime is
presently located at a particular location. (1)
Sometimes, however, law enforcement officers only have
information that evidence will be in a particular location at
some future time, but have no reliable information about the
present location of that evidence. For example, an officer might
receive reliable source information indicating that contraband
will be delivered to a particular address the next day. If the
officer waits until the delivery is made to obtain a warrant to
search that location, the officer runs the risk that the evidence
will be moved or destroyed before the warrant can be executed.
As an alternative, the officer might conduct a warrantless search
of the premises immediately upon delivery of the contraband and
attempt to justify that search under the emergency exception (2) to
the warrant requirement. The risk the officer runs by this
course of action is that a court may find probable cause lacking
or fail to recognize the emergency, and accordingly, suppress the
evidence under the provisions of the exclusionary rule. (3)
The law provides a solution to this dilemma. Rather than
risking either loss or suppression of the evidence, the officer
can use an anticipatory or prospective search warrant. An
anticipatory search warrant is based on a showing of probable
cause that at some future time (but not presently) certain
evidence of crime will be located at a specific place. Where
officers have probable cause to believe that evidence or
contraband will arrive at a certain location within a reasonable
period of time, they need not wait until delivery before
requesting a warrant. Instead, officers may present this
probable cause to a magistrate prior to the arrival of that
evidence, and the magistrate can issue an anticipatory search
warrant based on probable cause that the evidence will be found
at the location to be searched at the time the warrant is
executed.
The purpose of this article is to acquaint law enforcement
officers with the uses and requirements for anticipatory
warrants. After reviewing the general judicial acceptance of
anticipatory warrants, the article discusses numerous court
decisions involving various investigative applications for
anticipatory search warrants. The article also offers several
recommendations for avoiding potential constitutional
challenges to the use of anticipatory warrants.
JUDICIAL ACCEPTANCE OF ANTICIPATORY WARRANTS
Although the Supreme Court has never directly addressed the
issue of anticipatory warrants, (4) numerous lower courts have
ruled that it is constitutionally permissible to obtain such a
warrant. Challenges to the constitutionality of prospective
search warrants often involve claims that the fourth amendment
probable cause requirement is not satisfied, because at the time
of the warrant's issuance, there is no probable cause to believe
that the items to be seized are presently at the place to be
searched.
However, the vast majority of State and Federal courts that
have considered this question have concluded that anticipatory
warrants are constitutional and consistent with the longstanding
preference that whenever possible, police obtain judicial
approval before searching. Judicial acceptance of the
anticipatory warrant also encourages police to use the warrant
process rather than taking warrantless action. Moreover, privacy
interests are better protected by permitting law enforcement
officers to obtain warrants in advance if they can show probable
cause to believe that the object of the search will be located on
the premises at the time the search takes place.
INVESTIGATIVE APPLICATIONS OF ANTICIPATORY WARRANTS
For purposes of this article, court decisions involving
various investigative applications of anticipatory warrants have
been categorized according to the degree of police control over
the delivery of the evidence to the place to be searched as
follows: 1) Mail deliveries; 2) controlled delivery by
cooperating witness; and 3) delivery uncontrolled by the
government.
Mail Deliveries
The anticipated mail delivery of packages containing items
subject to seizure is the most common use for anticipatory
warrants. (5) For example, in United States v. Goodwin, (6) and
United States v. Dornhofer, (7) the U. S. Postal Inspection
Service set up a child pornography reverse sting operation to
locate and prosecute individuals who receive child pornography
through the mail.
Postal inspectors mailed to the defendants child pornography
catalogs summarizing available material in graphic terms. After
receiving orders from the defendants for this material, postal
inspectors obtained anticipatory search warrants to search those
locations where the material was to be delivered. In both cases,
the postal inspectors affirmed in their search warrant
affidavits that through their efforts, pornographic materials
would be delivered by mail to the particular locations to be
searched. Government agents, thereafter, observed the
anticipated deliveries and then executed the search warrants and
recovered the delivered pornography, as well as other sexually
explicit material.
In both cases the U. S. Court of Appeals for the Fourth
Circuit upheld the constitutionality of these anticipatory
warrants. The court concluded there was probable cause to issue
a search warrant, even though at the time of the warrant's
issuance the evidence had not yet been delivered to the location
to be searched.
Controlled Delivery by Cooperative Witness
In United States v. Garcia, (8) two U.S. military servicemen,
Hooks and Oliver, were caught by U. S. Customs agents in Miami
trying to smuggle cocaine into the country from Panama. After
being flown to New York to meet with Drug Enforcement
Administration (DEA) agents, Hooks and Oliver agreed to cooperate
and proceed with a controlled delivery of the cocaine. They
telephoned the defendant and made arrangements to bring the
cocaine to the apartment where she was then located. Before
delivery, DEA agents applied for and received an anticipatory
search warrant for that apartment. With the cocaine still in
their duffel bags, Hooks and Oliver went to the apartment under
observation of DEA agents. After being admitted and given
permission to wait for the defendant, Hooks and Oliver sat down
in the living room and placed the duffel bags next to them. Five
to 10 minutes later, while Hooks and Oliver were still waiting
and before the defendant or anyone else had taken possession of
the duffel bags, DEA agents entered and executed the search
warrant.
The U. S. Court of Appeals for the Second Circuit upheld the
validity of the anticipatory search warrant and concluded as
follows:
``The fact that contraband is not `presently located at the
place described in the warrant' is immaterial, so long as
`there is probable cause to believe that it will be there
when the search warrant is executed.' '' (9)
In rejecting the defendant's claim that the agents acted
prematurely when they entered and searched the apartment before
the cocaine was transferred personally to the defendant, the
court stated that the warrant was valid upon delivery of cocaine
to the apartment and did not require that anyone take possession
prior to execution of the warrant.
Delivery Uncontrolled by the Government
In some cases, anticipatory warrants have been used where
officers do not have control over the delivery of evidence to the
location to be searched. For example, in United States v.
Goff, (10) DEA agents in Seattle developed probable cause to
believe that Goff and Jacobson were making a 36-hour round trip
to Miami to purchase a large quantity of cocaine. After airline
personnel confirmed that the defendants had boarded the nonstop
return flight to Seattle, the agents applied for an anticipatory
warrant that was issued while the plane was in flight.
In approving the subsequent search that occurred when the
defendants disembarked from the plane in Seattle, the U. S. Court
of Appeals for the Ninth Circuit held that there was probable
cause to believe that the persons searched would arrive within
the district in a reasonable time and that the warrant could not
be executed until their arrival. The court concluded that
issuing a warrant in anticipation of these events created no
danger that the property seized would be other than the property
sought in the warrant; anticipating future events did not detract
from probable cause which must exist at the time of the
search. (11)
In another uncontrolled delivery case, Commonwealth v.
Reviera, (12) an undercover officer went to a certain address,
knocked on the door, and told the defendant who answered the
door that he wished to buy one ounce of cocaine. The defendant
said he was waiting for delivery, which would occur at
approximately 10:00 p.m., and directed the undercover officer to
return after 10:00 p.m., at which time he could purchase cocaine
for $1,300 per ounce. Several other persons also approached the
defendant about buying cocaine and were similarly told to return
after 10:00 p.m. Based on these facts and additional informant
information, an anticipatory warrant was obtained. The
Pennsylvania Superior Court upheld the validity of this
anticipatory warrant on the grounds there was a fair probability
that contraband and evidence would be found at the particular
location to be searched at the time the warrant would be
executed.
POTENTIAL CONSTITUTIONAL CHALLENGES
The fourth amendment mandates that all search warrants,
including anticipatory warrants, be based on facts establishing
probable cause and must particularly describe the place to be
searched and the person or things to be seized. The warrant must
be issued by a neutral and detached magistrate. Anticipatory
warrants can also be challenged on constitutional grounds if the
search warrant affidavit lacks adequate facts indicating that the
evidence to be seized is on a ``sure course'' to the location to
be searched, or if there is inadequate judicial control of the
warrant execution.
Evidence on a ``Sure Course'' to Delivery
Although the vast majority of Federal and State courts that
have considered anticipatory warrants have approved their use,
some courts have required a showing that the contraband or
evidence to be seized is on a ``sure course'' to its destination.
For example, in United States v. Hendricks, (13) a Customs officer
inspected a cardboard box arriving from Brazil, which was
addressed to Hendricks in Tucson, Arizona, but shipped in such a
manner that Hendricks was required to pick it up personally in
Tucson. Inside the box was a suitcase in which the inspector
found hidden 5 to 7 pounds of cocaine. The box was sent on to
Tucson where it was turned over to the DEA. While holding the
box, DEA agents developed additional incriminating evidence and
applied for a search warrant to search Hendricks' residence.
The magistrate issuing the warrant knew that the suitcase
was then in the DEA's possession and not at the Hendricks
residence, and accordingly, inserted a provision in the warrant
specifying that it was to be executed only upon the condition
that the box is brought to the Hendricks residence. However,
since at the time the warrant was issued, Hendricks had not
picked up the box, there was no assurance that he would pick it
up, or even if he did, that he would ever take the box to the
house. Therefore, the court found there was not a sufficient
nexus or connection between the box and the residence. The court
held that unless the suitcase was on a sure course to the house
(as for example in mail addressed to the house), no probable
cause would exist to believe it would arrive there. (14)
The ``sure course'' language of Hendricks has been cited
with approval by several other courts. (15) To help ensure that a
warrant will withstand subsequent attack based on lack of
sufficient nexus between the place to be searched and the things
to be seized, prudent investigators should attempt to develop
facts indicating that the evidence is on a sure and irreversible
course to its destination prior to applying for an anticipatory
warrant.
Ensuring Adequate Judicial Control of Warrant Execution
The element of time may be highly relevant to the validity
of a search warrant and its execution. The reason many courts
require traditional search warrants to be executed ``forthwith''
is to ensure that measure of judicial control over the search
which the warrant procedure is intended to accomplish. Passage
of an undue amount of time between issuance and execution raises
the danger that the described property will no longer exist at
the premises to be searched. The danger of loss of judicial
control might be as great in the case of a warrant issued to take
effect some time in the future as in the case of a stale
warrant. (16)
An anticipatory warrant is based on a magistrate's
determination that sufficient probable cause exists to believe
that at some future time (but not presently), certain evidence
will be located at a particular place. A potential
constitutional problem with such warrants is that the issuing
magistrate abdicates to the officers executing the warrant an
important judicial function, namely, the determination that
probable cause exists to believe that the objects are currently
in the place to be searched.
While it is logical to assume that officers will not be
disposed to undermine the success of their investigative efforts
by the premature execution of an anticipatory warrant, it is
nonetheless preferable to deal with time limitations as to
execution explicitly in the warrant application process. (17)
In that regard, some courts prefer the issuing magistrate to
protect against premature execution by defining the circumstances
and/or conditions that must be present prior to its execution. (18)
For example, the issuing magistrate could delete the forthwith
command found preprinted on many warrant forms and insert a
directive that execution occur only upon the happening of a
specific event, such as delivery of the evidence. This ensures
judicial control because if the critical future event never
occurs, the warrant may not be executed. (19)
To guard against successful challenges to the validity of
anticipatory warrants based on an alleged loss of judicial
control in their execution, officers should place reasonable
limiting language in their warrant affidavits specifying that
execution will not occur in the absence of a particular
contingency, such as: 1) A scheduled time for delivery; 2) a
given event; 3) police surveillance confirming that the package
has been delivered; or 4) a particular method that allows
executing officers to know that the items are in the place to be
searched. Such language in the affidavit may save an otherwise
defective warrant if the magistrate merely fails to include
that limiting language in the warrant itself.
CONCLUSION
The anticipatory or prospective search warrant is obtained
in advance of the anticipated time for delivery of evidence to
the place to be searched so police may promptly execute the
search when delivery is made. When police are confronted with
the need for quick action, anticipatory warrants provide a
practical alternative to proceeding with no warrant and risking
suppression of the evidence. If police delay applying for a
warrant until the evidence arrives at the place to be searched,
they increase the risk that the evidence will be lost before the
search can be made. Officers applying for anticipatory warrants
should ensure that their search warrant affidavits meet
traditional fourth amendment requirements, and also reflect that
the items are on a ``sure course'' to the place to be searched.
Officers should also include appropriate limiting language in the
affidavit to prevent loss of judicial control.
FOOTNOTES
(1) See New York v. P.J. Video, 106 S.Ct. 1610 (1986);
Andresen v. Maryland, 427 U.S. 463 (1976).
(2) See Sauls, ``Emergency Searches of Premises,'' FBI Law
Enforcement Bulletin, vol. 56, Nos. 3-4, March and April 1987.
(3) See Fiatal, ``The Judicial Preference for the Search
Warrant: The Good Faith Warrant Exception to the Exclusionary
Rule,'' FBI Law Enforcement Bulletin, vol. 55, No. 7, July 1986.
(4) In Berger v. New York, 388 U.S. 41 (1967), the Supreme
Court indirectly acknowledged such a possibility when it
indicated that it could be constitutionally permissible to obtain
a warrant authorizing the seizure (through the use of electronic
surveillance) of oral communications which will not exist until
vocalized by the participants to that conversation at some future
time.
(5) 2 W.R. LaFave, Search and Seizure sec. 3.7(c) at 94 (2d
ed. 1987).
(6) 854 F.2d 33 (4th Cir. 1988).
(7) 859 F.2d 1195 (4th Cir. 1988), cert. denied, 107 S.Ct.
1639 (1989).
(8) 8882 F.2d 699 (2d Cir. 1989).
(9) Id. at 702.
(10) 681 F.2d 1238 (9th Cir. 1982).
(11) The court also rejected a challenge to the warrant under
Rule 41(a) of the Federal Rules of Criminal Procedure, which
requires a Federal search warrant be issued in the district where
the person or property sought is located. The court stated the
rule does not require that in every circumstance, the evidence
sought must be physically in existence within the district at the
time the warrant issues. Although the warrant cannot be executed
until the object of the search is in the district, the rule is
not violated when the affidavit clearly demonstrates that the
objects of the search will exist in the district within the time
allowed for execution.
(12) 563 A.2d 1252 (Pa. Super. 1989).
(13) 743 F.2d 653 (9th Cir. 1984), cert. denied, 470 U.S. 1006
(1985).
(14) Although the warrant was invalid for lack of probable
cause, the agents' good faith reliance on it was held to be
reasonable, and therefore, the evidence was nevertheless
admissible.
(15) See, e.g. United States v. Hale, 784 F.2d 1465 (9th Cir.
1986), cert. denied, 107 S.Ct. 110; Goodwin, supra note 6;
Dornhofer, supra note 7.
(16) United States ex rel Beal v. Skaff, 418 F.2d 430 (7th
Cir. 1969).
(17) LaFave, supra note 5, at 98.
(18) Commonwealth v. Soares, 424 N.E. 2d 221 (Mass Sup. Ct.
1981). In Garcia, supra note 8 at 702, the Second Circuit Court
of Appeals held:
``When a government official presents independent evidence
indicating that delivery of contraband will, or is likely
to, occur, and when the magistrate conditions the warrant
on that delivery, there is sufficient probable cause to
uphold the warrant.''
(19) Although desirable, the absence of contingencies is not
necessarily fatal where premature execution is unlikely. See,
Reviera, supra note 12.
____________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.
Author's Note
On May 1, 1990, the U.S. Supreme Court sent to Congress
proposed amendments to Rule 41(a) of the Federal Rules of
Criminal Procedure. The first amendment would permit warrants
to search where the person or property is outside the
jurisdiction when the warrant is issued, but within the district
by the time the warrant is executed. A second amendment would
permit the issuance, by Federal magistrates only, of search
warrants for property or persons who are within the district
when the warrant is issued, but might move outside the district
before the warrant is executed.