CA6: When an anticipatory SW says delivery to X, X has to receive it for search to occur

When the triggering event in an anticipatory search warrant doesn’t occur, then the search can’t occur. Here it was to a named person. Somebody else accepting it isn’t acceptable. “In this case, requiring delivery to Perkins is the only common sense reading of the warrant’s triggering event. Hand-deliver ‘to Perkins’ means hand-deliver ‘to Perkins.’ This reading is hardly hypertechnical. [¶] By contrast, the government’s interpretation lacks common sense. In its view, there is no need to read the triggering event to require hand-delivery ‘to Perkins.’ Instead, we should just read it to say ‘to anybody inside the residence with apparent authority to accept delivery.’ But the replace-some-words canon of construction has never caught on in the courts.” United States v. Perkins, 2018 U.S. App. LEXIS 8520 (6th Cir. Apr. 4, 2018):

Anticipatory search warrants, like all search warrants, require probable cause. U.S. Const. amend. IV (“[N]o Warrants shall issue, but upon probable cause ….”); Grubbs, 547 U.S. at 94. The triggering event provides that cause. Grubbs, 547 U.S. at 94. Here, had Brewer hand-delivered the package to Perkins, no one disputes that the warrant would have been supported by probable cause. But Brewer did not hand-deliver the package to Perkins. So the question becomes: What happens when an anticipatory warrant’s triggering event never happens?

Well, it depends. As a general matter, failure to comply with an anticipatory warrant’s triggering event “void[s]” the warrant. United States v. Rey, 923 F.2d 1217, 1221 (6th Cir. 1991); see also Grubbs, 547 U.S. at 100-01 (Souter, J., concurring in part and concurring in the judgment) (“[I]f an officer … makes the ostensibly authorized search before the unstated condition has been met, the search will be held unreasonable.”). This follows from Fourth Amendment basics. A neutral, detached magistrate—not law enforcement—must decide whether probable cause supports a warrant. Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948). So the magistrate must be sure what the triggering event is and that it will establish probable cause. United States v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993) (observing that those issuing anticipatory warrants must be “particularly vigilant in ensuring that [law enforcement’s] opportunities for exercising unfettered discretion are eliminated,” and that a triggering event must be “both ascertainable and preordained”). To that end, the triggering event in an anticipatory warrant must be “explicit, clear, and narrowly drawn.” United States v. Miggins, 302 F.3d 384, 395 (6th Cir. 2002) (quoting Ricciardelli, 998 F.2d at 12). Judges cannot leave it to law enforcement to manipulate the triggering event after issuance of the warrant. Rather, law enforcement’s role in overseeing the triggering event should be “almost ministerial.” Ricciardelli, 998 F.2d at 12. One might think, therefore, that courts would require strict compliance with the terms of a triggering event.

Courts, however, do not always require strict compliance. In determining whether a triggering event has been satisfied, “warrants and their supporting documents are to be read ‘not hypertechnical[ly], but in a commonsense fashion.” Miggins, 302 F.3d at 395 (alteration in original) (internal quotation marks omitted) (quoting United States v. Gendron, 18 F.3d 955, 966 (1st Cir. 1994)). But what does it mean to read the description of a triggering event commonsensically, and not hypertechnically? Two cases provide some insight. First, in United States v. Gendron, law enforcement conditioned execution of an anticipatory warrant at “the residence of Daniel A. Gendron, 105 Winthrop Street, Rehoboth, Massachusetts 02769” on “delivery by mail to and receipt by Daniel Gendron” of a parcel containing child pornography. 18 F.3d at 965. Gendron argued that it was unclear what sort of “receipt” would trigger the warrant. Id. at 966. Was it just at his home, or perhaps “downtown or at the Post Office, or ([in the court’s] own farfetched example) in Okinawa[?]” Id. Unimpressed with Gendron’s argument, the First Circuit found no ambiguity in “receipt by Daniel Gendron,” applying “commonsense” in concluding that receipt meant receipt at home. Id. After all, the warrant also described Gendron’s house, identified the target of the search as a video bound for Gendron’s house by mail, and specified that “delivery by mail” to the house should occur. Id. For these reasons, the court explained that the triggering event in an anticipatory warrant is sufficiently clear even if it fails to “negate all unintended logical possibilities.” Id.

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