N.D.Okla.: Anticipatory tracking warrant for money counter is without authority and nexus is speculative even if not

The government’s request for an anticipatory tracking warrant for a money counter is denied. First, there’s no apparent authority for such a warrant. Second, the government fails to show nexus. Finally, the court also thinks it speculative whether the conditions will occur. In re Tracking of a DEA-Owned Cummins Allison Brand Money Counter (The Subject Device), 2024 U.S. Dist. LEXIS 52117 (N.D. Okla. Mar. 25, 2024):

The Court denies the request for an “anticipatory” tracking warrant. First, the Court is not aware of authority for issuing a tracking warrant based on anticipatory probable cause. The Supreme Court and Tenth Circuit cases discussing “anticipatory” warrants do so in the context of search and seizures to be conducted at a discrete time, rather than to commence ongoing tracking of an object. The standard forms published by the Administrative Office of the U.S. Courts for tracking warrant applications (“AO 102”) and tracking warrants (“AO 104”) require a current nexus to criminal activity at the time of issuance. The application requires a law enforcement officer or attorney for the government to swear that he has “reason to believe that the person, property, or object described above has been and likely will continue to be involved in one or more violations” of law. AO 102 (emphasis added). Similarly, the warrant requires the judge to make a finding that “there is reason to believe that the person, property, or object described above has been involved in and likely will continue to be involved in the criminal activity identified in the application.” AO 104 (emphasis added). When questioned about this language, the United States omitted the “has been involved” language on both forms to read “the object described above is likely to be involved” in criminal activity. The United States did not provide legal authority for this alteration or an example where anticipatory probable cause was used to support a tracking warrant. Standard forms are not conclusive as to legal standards, but the Court is not persuaded to alter the standard language as requested in this case.

Second, assuming anticipatory warrant principles extend to tracking warrants, the affidavit still fails to establish probable cause. The Court finds the Money Counter will not have a sufficient nexus to suspected criminal activity upon the triggering event described in the affidavit — namely, delivery to and acceptance of the Money Counter by Suspect or another member of the DTO. Unlike delivery of a package containing known contraband, the delivery here is of an “innocent” object to a suspected criminal. The suspected criminal is not currently aware of the Money Counter, did not order the Money Counter, has not made any arrangements involving the Money Counter, and may or may not decide to use the Money Counter to further activities of the DTO at the suggestion of the CS. The object could essentially be anything to which officers can attach a GPS tracking device, provide to a suspected criminal, and encourage him to use in furtherance of criminal activity. The mere delivery of an “innocent object” that has no connection to the suspect is far afield from the triggering conditions of delivery of an illegal video ordered by a suspect, such as in Grubbs, or viewing cocaine during a controlled drug deal set up by the suspect, as in Serrano. The Court finds probable cause will not arise to track the Money Counter based solely on the Money Counter’s delivery to and acceptance by Suspect or another member of the DTO. See Grubbs, 547 U.S. at 96-97.

The Court also finds it overly speculative that the triggering events will occur. …