textfiles/law/fbijul07.law

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.