E.D.Tenn.: Triggering event for anticipatory warrant not met, and suppression granted

The specific triggering event for this anticipatory warrant was handing the package to defendant, but that did not happen. The police entered anyway and seized. The Sixth Circuit recognizes that the triggering event has to be considered in a common sense fashion. United States v. Miggins, 302 F.3d 384, 395 (6th Cir. 2002); United States v. Penney, 576 F.3d 297, 310-11 (6th Cir. 2009). Those cases are distinguishable here because the factual differences between what happened and the triggering event were minor. Here they are not. Finally, the good faith exception did not apply on these facts. In addition, defendant undertook a burden to show that the FedEx employee searching his package was seeking to aid law enforcement, but he failed in that burden. United States v. Perkins, 2017 U.S. Dist. LEXIS 109865 (E.D. Tenn. July 5, 2017), overruling in part 2017 U.S. Dist. LEXIS 110512 (E.D. Tenn. April 20, 2017):

In this case, the wording of the triggering event is extremely specific. If the Court were to read the affidavit in the manner the government proposes, the requirement that the package be hand delivered to Defendant would be read out of existence, and the triggering event contemplated by the neutral magistrate would lose all importance. It would also undermine the “purpose of defining a triggering event” which is “to ensure that officers serve an almost ministerial role in deciding when to execute the warrant.” Ricciardelli, 998 F.2d at 12 (internal quotations omitted).

Compounding the problem is that neither the warrant nor the supporting affidavit contains any mention of Sons or her connection to the illegal activity suspected. As will be discussed further below, all the additional information in the affidavit concerns Defendant. (Doc. 16-2). Furthermore, when Officer Brewer delivered the parcel, no attempt was made to ascertain whether Defendant was present at the residence, or if he even lived there at that time. Brewer testified at the hearing that when he delivered the parcel, he asked Sons, “Are you expecting a package?” He testified that she replied, “Yes, we are.” (Doc. 16-2 at 26-27). Brewer further testified that based on her response, he “assume[d] that there was somebody else in the house,” but he did not testify that he believed Defendant was present. (Id. at 27).

At its most basic level, the government’s argument seeks to undermine the importance of triggering events being “explicit, clear, and narrowly drawn,” and thereafter diligently executed by law enforcement. The issue here is not decided by an ambiguous turn of phrase or linguistic technicality, as was the case in Miggins and Penney. Instead, the reasoning advanced by the government approaches a post hoc justification of a search, in which the substance and execution of a warrant are reduced to trifling details. Such a path is fraught with danger, leading to an increased likelihood of unpredictable, unreasonable searches and awarding the sort of unfettered authority to law enforcement that the exclusionary rule and Fourth Amendment were intended to prevent. Accordingly, the Court finds that police officers violated Defendant’s Fourth Amendment rights in executing the search of Defendant’s residence when they failed to abide by the triggering event.