MA: Where an anticipatory warrant goes awry because the condition precedent fails, it can still be executed with “equivalent compliance”

Where an anticipatory warrant goes awry because the condition precedent fails, it can still be executed with “equivalent compliance”: “The Commonwealth bears the burden of proving that the conditions that actually gave rise to the search were as or more likely to establish probable cause as the triggering conditions stated in the affidavit.” Here, that was satisfied. Commonwealth v. Colondres, 2015 Mass. LEXIS 162 (April 13, 2015):

We conclude that the execution of a search is authorized by an anticipatory search warrant once there is equivalent compliance, albeit not strict compliance, with the triggering conditions in the affidavit. An anticipatory search warrant, by definition, “takes effect at a specified future time,” Staines, 441 Mass. at 525, which means that the affidavit supporting it must make a prediction about the future events that will trigger the warrant. Because the future rarely goes exactly according to plan, the benefits of an anticipatory warrant would too often be lost if we required that the triggering conditions be satisfied to the letter before the warrant takes effect.⁸

8. “[O]ne of the major practical difficulties that confronts law enforcement officials is the time required to obtain a warrant. In many instances, the speed with which government agents are required to act … demands that they proceed without a warrant or risk losing both criminal and contraband. … The question … is whether the objective of the [F]ourth [A]mendment [to the United States Constitution] is better served by allowing an agent to obtain a warrant in advance of the delivery, or whether it is better served by forcing him to go to the scene without a warrant, and, if necessary, proceed under the constraints of the ‘exigent circumstances’ exception, subject always to the risk of ‘being second-guessed’ by judicial authorities at a later date as to whether the known facts legally justified the search.” United States v. Garcia, 882 F.2d 699, 703 (2d Cir.), cert. denied sub. nom. Grant v. United States, 493 U.S. 943, 110 S. Ct. 348, 107 L. Ed. 2d 336 (1989), quoting 1 W.R. LaFave, Search and Seizure § 3.7(c), at 700-701 (1978).

In determining whether there has been equivalent compliance, we look to the inference that would have been drawn had the triggering conditions stated in the affidavit occurred — here, that the cocaine in Carlos’s possession was obtained from a stash in the defendant’s apartment — and determine whether the weight of that inference is as strong or stronger under the actual conditions. The Commonwealth bears the burden of proving that the conditions that actually gave rise to the search were as or more likely to establish probable cause as the triggering conditions stated in the affidavit. Cf. United States v. Miggins, 302 F.3d 384, 394-397 (6th Cir.), cert. denied sub. nom. Moore v. United States, 537 U.S. 1097, 123 S. Ct. 712, 154 L. Ed. 2d 648 (2002), cert. denied, 537 U.S. 1130, 123 S. Ct. 909, 154 L. Ed. 2d 817, and cert. denied sub. nom. McDaniels v. United States, 538 U.S. 971, 123 S. Ct. 1772, 155 L. Ed. 2d 531 (2003) (reading affidavit in “commonsense fashion” and concluding that triggering condition, which required delivery and acceptance of parcel containing cocaine by someone inside residence, was met where someone who had been previously inside residence greeted delivery person outside, accepted parcel, and immediately left with it in vehicle, because these events “sufficiently establishe[d] a connection between the parcel and someone who ha[d] access to the residence to which the parcel [was] addressed”); People v. Martini, 265 Ill. App. 3d 698, 708-710, 638 N.E.2d 397, 202 Ill. Dec. 751 (1994) (“the standard to be adhered to in the context of police execution of ‘anticipatory’ search warrants is the substantial compliance standard,” and was satisfied where “strict compliance” was “not necessary”). Although here, by arresting Carlos, the police actively interrupted the sequence of events that the affidavit had said would trigger the warrant, that should not prevent the warrant from taking effect where the police otherwise established facts that provided equal support for the same inference on which the probable cause determination approved by the clerk-magistrate had been based.