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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)