PA: Anticipatory SW failed Grubbs for lack of specific information

Anticipatory search warrant failed here because there was no probability that the drugs would be found in a particular place. Commonwealth v. Wallace, 615 Pa. 395, 42 A.3d 1040 (2012):

As the parties recognize, the United States Supreme Court, in Grubbs, established two requirements which an affidavit of probable cause in support of an anticipatory search warrant must meet under the Fourth Amendment: (1) “there is probable cause to believe the triggering condition will occur;” and (2) “if the triggering condition occurs ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.'” Grubbs, 547 U.S. at 96-97 (emphasis omitted). The high Court also held that “[t]he supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination.” Id. at 97.

The high Court has made abundantly plain that the triggering event itself must be probable, and thus that an anticipatory search warrant for a search of a person’s home may not be issued solely upon a claim that fruits of a crime will be found inside if a triggering event, such as delivery of contraband to the home, takes place and the warrant is executed. Justice Scalia, writing for the majority in Grubbs, explicitly and aptly cautioned in this regard: “If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered — though for any single location there is no likelihood that contraband will be delivered.” Id. at 96 (parentheses and emphasis omitted).

. . .

Likewise, this affidavit of probable cause contained a paucity of information concerning the basis of knowledge for the informant’s assertion that he could purchase drugs at Appellant’s home at the time and date specified in the affidavit. The means by which the confidential informant learned of “Greg’s” cocaine sales and the use of his car to deliver narcotics was not set forth in the affidavit, and there was no other evidence provided in the affidavit which would tend to corroborate the truth of these allegations. There was no factual basis in the affidavit which established that the confidential informant had any past relationship with “Greg,” ever witnessed “Greg” in possession of drugs, or, critically, had been inside of Appellant’s home recently and observed drugs stored there. Furthermore, there were no facts in the affidavit which suggested that the confidential informant had, at any time, personally purchased drugs from “Greg,” or witnessed “Greg” selling drugs at any location, let alone at Appellant’s home. In short, the affidavit contained only the informant’s bare assertion that he could effectuate a controlled purchase at Appellant’s home at a particular time.