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When I first encountered the anticipatory warrant as a prosecutor, I could not believe it was legal. It is a such a strange and unique thing in the criminal law. So, I studied it. I quickly saw that the police who were writing these search warrants were missing important details. I prepared for defense motions challenging the warrants. However, the motions never came because the defense bar did not understand the anticipatory warrant either! In this podcast, I talk about this strange creature called the anticipatory warrant. If you understand the anticipatory warrant then you understand the Fourth Amendment in a deeper way. Now, I can see that this search warrant is logical and legal, but it did not always make sense to me.
When is an Anticipatory Warrant Used?
An anticipatory search warrant is what is used when the police have concrete proof that a crime will happen in the future. In the podcast episode, I also explain how this type of search warrant works. The anticipatory warrant is used in situations when the police intercept an item of contraband. For example, when the police interdict and confiscate:
- Drugs in the mail
- Child Pornagraphy in the mail or website
- Military weapons captured in a port
- Information on a fugitive’s location
The most common situation when they come up is when the police intercepted a package of drugs in the U.S. mail. Usually, a canine alerts to a package. Then the package is examined and drugs are discovered. There is always a fake return address or no return address at all. The only legitimate investigative lead is the destination address. The officers, at this point, can draft an anticipatory warrant and take it to the judge. This search warrant application is asking the judge for permission to search the home where the package will be delivered even though the package has not actually been delivered yet.
Ok, What is an Anticipatory Warrant?
In this sense, the anticipatory search warrant is predicting the future. It is telling the judge that investigators have reason to believe that a crime will be committed in the future. The formal definition then of an anticipatory search warrant is this:
An anticipatory warrant is a search warrant based upon an affidavit showing probable cause that at some future time, but presently, certain evidence of a crime will be located at a specific place.
These types of search warrants depend on the same Fourth Amendment principles as every other police search. Remember, the Fourth Amendment says that
no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
This podcast episode discusses United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494 (2006). This is the leading case on the subject of the anticipatory warrant.
There Has to Be a Triggering Condition
The biggest difference between a normal search warrant and an anticipatory search warrant is the requirement of a triggering condition. The warrant application to the judge must explain that the search warrant will only be executed if the triggering condition actually happens. The triggering condition in a drug case would be the drugs actually being delivered or accepted by a person at the address to be searched. If, for whatever reason, the delivery is never made the police would not be authorized to conduct the search. The formal definition of a triggering condition is this:
“A triggering event is something other than the mere passage of time establishing there is currently probable cause the evidence is in the house.”
Thus, every anticipatory has two probable cause findings that must be made by the judge.
- The judge must be presented with enough information for the judge to find probable cause that something illegal will be at a certain place.
- And the judge must be presented with enough information for the judge to find probable cause that the delivery will be made (ie. that there is a good likelihood that the triggering condition will occur).
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