CA6: SW’s flexibility as to when it could be executed didn’t make it an anticipatory warrant with a triggering condition

The search warrant reasonably provided flexibility as to when it would be executed, but it was not an anticipatory warrant at all. United States v. Huntley, 2018 U.S. App. LEXIS 20956 (6th Cir. July 30, 2018):

Although the district court assumed for argument’s sake that the warrant was anticipatory, we see no reason to do the same because the warrant did not authorize the search upon satisfaction of a future action. Absent is the typical language-“unless and until,” “then and only then,” “if and only if,” “upon occurrence of,” etc.–utilized to set forth a triggering condition. Rather, the warrant provides in no uncertain terms that Huntley’s property “is believed to conceal” evidence of illegal activity, and the magistrate judge found that the affidavit supporting its issuance “establish[es] probable cause to search and seize the person or property.” It therefore speaks only to a finding of probable cause by the magistrate judge upon its issuance, not upon an event to occur in the future.

Paragraph 28 does not change this conclusion. Viewed in the light most favorable to the government, paragraph 28 at best supports the agent’s request for flexible timing to effectuate the warrant pursuant to Federal Rule of Criminal Procedure 41(e)(2)(A)(ii). Nothing about paragraph
28’s “wish” to execute the warrant at a certain time-in order to minimize the well-founded risk to the safety of officers and others in light of Huntley’s known possession and use of firearms- transforms this request into a future probable cause condition.

Moreover, even if this were an anticipatory warrant, Huntley did not overcome application of Leon’s good-faith rule. Accordingly, the district court did not err by denying defendant’s motion to suppress.

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