What is an anticipatory search warrant? How did the cops mess this one up? Specifically, we ask whether the police had to wait for the package to be opened before arresting defendant.
See People v. Harris, 2015 IL App (1st) 132162 (06/17/2015).
What is an Anticipatory Search Warrant?
An anticipatory search warrant is based on probable cause that a crime will occur in the future. Specifically, it authorizes the police to search a person and place after a condition precedent takes place.
See United States v. Grubbs, 547 U.S. 90, 97 (2006); People v. Bui, 381 Ill. App. 3d 397, 406 (2008); and People v. Carlson, 185 Ill. 2d 546, 551 (1999).
The condition precedent is a triggering event that signals that evidence of a crime is located with an identified person in a specific place.
The most common examples of anticipatory search warrant happened in mail interdictions.
Mail carriers identify drugs in a package. They notify authorities. They know once it is delivered that the receiver will be committing a crime.
The thing with drug packages is that not every handler of the package is guilty of a crime, and the package may be moved frequently before it makes it to its final resting place and to its true owner.
Facts In This Case?
A drug dog alerts to the presence of drugs in a package at UPS.
Sure enough, it is opened up and it has about 1,000 grams of cannabis inside of it. By the way, they needed a warrant for that, and Defendant would have had a right to the discovery on that drug dog.
Police then repackage the drugs along with an electronic device that signals officers describing when…
- The package is being moved
- The package is standing still
- The package has been opened
Police deliver this package to the home of an old lady who has been moved out for a while. The house was empty.
Sure enough, police see that Defendant drives up to the home, picks up the package and places it underneath the rears passenger’s seat.
Just as soon as Defendant drives away from the house, police stop him. They recover the package.
Defendant is interrogated and he confesses to knowing the cannabis was in the package, and said he was going to sell it. (Jury actually acquitted on possession with intent; Defendant received probation for the straight possession).
Prosecution was arguing that the triggering event occurred when Defendant took possession of the package, put it under the seat, and drove away with it.
Defendant argued that the the triggering event had to be when he opened the package.
The Case Law
Let’s discuss some of rules around anticipatory search warrants.
First of all, the general statutory requirements remain in full force and effect. These warrants also have to be careful to describe with particularity the items to be seized and the person and place to be searched. 725 ILCS 5/108-7.
Additionally, when we are talking about anticipatory search warrants they must be narrowly drawn to “avoid premature execution as a result of manipulation or misunderstanding by the police.” ¶ 29 quoting United States v. Brack, 188 F.3d 748, 757 (7th Cir. 1999).
The triggering event serves this limiting function. This ensures that officers serve an “almost ministerial” role in deciding when to execute the warrant. United States v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993). The idea is to remove any doubt or discretion from the police. See ¶ 29 quoting People v. Curry, 100 Ill. App. 3d 405, 410 (1981).
People v. Bui, 381 Ill. App. 3d 397 (2008)
In this case, a package with drugs was delivered to nail salon.
A nail salon employee signed for the package and placed it under the counter. Nearly four hours later, the defendant in that case picked it up and drove away.
Defendant switched cars before driving to his house with the package.
The electronic device eventually signaled that the package was opened. Police entered the home, located the package, and found other narcotics in the house.
The court in Bui ruled that to accept a package means “to receive and open the package”. The facts of that case nicely illustrates why opening had to be part of the triggering event. If not, the police would have been able to arrest the salon employee and been authorized to search that building.
The appellate court found that the officers were required to wait until the package was opened before arresting the defendant.
Defendant’s conduct of picking up the package and putting it in his car—was insufficient, under the definition of “accept” adopted in Bui, to satisfy the warrant's triggering event.
The evidence obtained as a result must be suppressed.
In this case, the electronic device would have provided the necessary objective evidence to particularly identify the person or property to be searched AND
It waiting until the electronic device signaled its opening would have taken away unfettered discretion from the police in determining when a search can take place.
Had the court adopted the State’s broad interpretation of “accept” it would have cast a wide net over the categories of people and locations subject to search. The police would then have broad discretion in determining when the required triggering event has occurred.
The State’s interpretation of “accept” deprives the warrant of the particularity required to uphold its validity. The officers’ failure to use the device for this purpose stated was contrary to the justification for the warrant.
Case not saying that anticipatory warrant will always require the package to be opened. The problem here was that:
- The package moved for only a few seconds
- The device was not monitored at all
- The device not used to o track the movement
- The device not used to track opening of the package
- This particular package din’t have a fake name
- Police had had no prior information connecting Defendant to the package or its contents
- Police had no prior information connecting Defendant to drugs
Semantics game won’t work.
This warrant on its face defined the triggering event as “taking possession” and said nothing about it having to be opened. However, at the time the police obtained the warrant they also obtained an order allowing them to place the electronic device in the package.
At that time the police explained that the device will help produce evidence of a crime and assist in the identification of the perpetrator and possible co conspirators.
A warrant’s triggering condition need not be reflected on the face of the warrant and may be included in supporting affidavits attached to it.
Further, search and seizure involves commons sense determinations and reasonableness.
What if they stop using the electronic devices?
Remember, the fundamental problem with these kinds of warrants is that the cops have to figure out who becomes the target of the search once the package is delivered.
They must limit their discretion in some way.
Thus, the electronic device signaling when the package has been opened serves a vital role. This responsibility does not go away simply because police stop using the device.
That’s a dangerous game for the State to play, and I doubt this case will provoke the police and the prosecution into not using the electronic device in the future cases.
If your the State, you use this case to tell the cops to make the arrest when the package is opened. Why did they jump the gun?
As a prosecutor, and law enforcement as well, you want to see where the package is being taken. There are more criminals there! And probably a lot more drugs!