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FBIJUL07.TXT
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1990-08-02
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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. Cour