The Virginia Supreme Court sustained an anticipatory search warrant that potentially failed to satisfy the second Grubbs prong. Since the second question was too difficult to decide, it just punted and went to the good faith exception, and, of course, found the search valid. Ward v. Commonwealth, 2007 Va. LEXIS 4 (January 12, 2007):
This probable cause determination, sufficient to authorize the issuance of an anticipatory search warrant, was then described by the Supreme Court as a two-pronged inquiry by the issuing magistrate:
“[F]or a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place,’ Gates, [462 U.S. at 238], but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See Garcia, [882 F.2d] at 703.
Grubbs, 126 S. Ct. at 1500.
In the present case, it appears self-evident that the first prong of the Grubbs inquiry, the probability that the package would be found at 129 South Old Church Street, was satisfied by the terms of Detective Riley’s affidavit. The second prong of the Grubbs probable cause analysis, where the magistrate determines if “there is probable cause to believe the triggering condition will occur,” is not so easily answered. Grubbs may limit the probable cause analysis only to that information before the magistrate at the time the decision to issue the warrant is made: “The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination.” If that is so, then events ex post the issuance of an anticipatory search warrant could not be used to satisfy the probable cause requirement.
However, it is unnecessary for us to resolve whether the Court of Appeals analysis meets the requirements of Grubbs because the Commonwealth’s assignment of cross error is dispositive in this case. Accordingly, we will assume, but expressly do not decide, that the search warrant in this case failed to meet the second prong of the probable cause analysis in Grubbs and turn our attention to the assignment of cross error.
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In the present case, the record does not reflect that the executing officers knew or should have reasonably known that their reliance on the warrant was objectively unreasonable. The address listed on the package was very similar to the address searched. Furthermore, the actions of the executing officers in this case were analogous to those described in Polston and Derr. In both cases, the defendant contended the affidavit relied upon by the magistrate lacked a substantial basis to find probable cause to issue the search warrant. Polston, 255 Va. at 502, 498 S.E.2d at 925; Derr, 242 Va. at 419-20, 410 S.E.2d at 665. Nonetheless, the Court held the evidence seized during the search conducted pursuant to the warrants was admissible under the good-faith exception because the officers “acted in good faith, reasonably, and under the authority of an apparently valid search warrant.” Polston, 255 Va. at 504, 498 S.E.2d at 926; Derr, 242 Va. at 422-23, 410 S.E.2d at 667. The officers who conducted the search in the case at bar similarly acted in good faith, based on the authority of an apparently valid search warrant.
Lastly, the Supreme Court in Leon stated the good-faith exception will not apply where a warrant is “so facially deficient – i.e., in failing to particularize the place to be searched or the things to be seized – that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923 (citing Massachusetts v. Sheppard, 468 U.S. 981, 988-991 (1984)). Clearly, this exclusionary circumstance does not apply as the affidavit and search warrant in the case at bar were explicit as to the place to be searched and the items for which a search was to be conducted.
None of the circumstances described in Leon as exclusions to the application of the good-faith exception apply in this case. Moreover, exclusion of the evidence obtained by the search warrant would not further the purposes of the exclusionary rule.
Comment: Another example of the good faith exception causing the development of the law to become stifled. The Virginia Supreme Court practically wrote the second Grubbs requirement out of the law by saying “close enough for government work.”
Anonymous tip was so deficient in information of bad acting by the defendant that it could not support a stop on reasonable suspicion. At best, all the police knew was that defendant was drinking a beer, but he had a drug arrest record so they decided to stop him. State v. Grimes, 2006 Wisc. App. LEXIS 1248 (December 27, 2006).*
Defendant consented to a search of his car, but he withdrew consent to a locked metal briefcase. He was first asked for the key and did not answer. Then he said it was not his and he could not consent to its search and seizure. The Washington Supreme Court found no abandonment of the expectation of privacy, reversing the court of appeals (but agreeing with the court of appeals that the defendant had standing). State v. Evans, 159 Wn.2d 402, 150 P.3d 105 (January 11, 2007), rev’g 129 Wn. App. 211, 221, 118 P.3d 419 (2005):
The Goodman and Zakel decisions suggest to us that a denial of ownership, by itself, did not divest Evans of his privacy interest in the briefcase. But as the Court of Appeals noted, “our courts have not analyzed whether one can disclaim property but still challenge a later search, where the disclaimed property remained in an area where one has a reasonable expectation of privacy.” Evans, 129 Wn. App. at 222. As a result, we consider the guidance offered by Goodman and Zakel in the context of how courts in other jurisdictions have approached a disclaimer of ownership.
A survey of decisions from these other jurisdictions supports a recognition that Evans retained a privacy interest in the briefcase. These courts have concluded that a defendant’s denial of ownership does not divest him or her of a privacy interest in that property, provided the search takes place in an area where the defendant had a privacy interest. For example, in State v. Huether, 453 N.W.2d 778 (N.D. 1990), the defendant denied ownership of a bag that was found stuffed under the front seat of his car. The court noted there that the defendant had not discarded the property in a public area, but rather that it was located in an area in which he retained a privacy interest, his car. The court said, as a result, “[t]here is little doubt that Huether had an expectation of privacy in his vehicle and in every container therein that concealed its contents from plain view.” Id. at 781. Like Huether, Evans did not discard the briefcase and he retained a privacy interest in the car that was searched.
The holding in Huether is consistent with the rulings of other state courts. The Illinois Supreme Court, for example, has indicated that the court must look at “‘the totality of the circumstances, but pay particular attention to explicit denials of ownership and to any physical relinquishment of the property.'” People v. Pitman, 211 Ill. 2d 502, 813 N.E.2d 93, 105, 286 Ill. Dec. 36 (2004) (quoting United States v. Basinski, 226 F.3d 829, 836-37 (7th Cir. 2000)). But when Illinois courts pay close attention to a disclaimer of ownership, the presence of one is not sufficient, by itself, to demonstrate voluntary abandonment. See, e.g., People v. Lee, 226 Ill. App. 3d 1084, 590 N.E.2d 1000, 1002, 169 Ill. Dec. 81 (1992) (confirming privacy interest for purposes of standing). For example, when a defendant denied ownership of a bag stuffed under the front seat of his car, it did not constitute voluntary abandonment. Id. New York’s highest court has reached a similar conclusion, indicating that “[s]tanding alone, the surrender of control or disclaimer of ownership does not always establish a waiver.” People v. Ramirez-Portoreal, 88 N.Y.2d 99, 666 N.E.2d 207, 213, 643 N.Y.S.2d 502 (1996) (citing 1 LAFAVE, supra, § 2.6(b)).
Holding the same is United States v. Felix, 2007 U.S. Dist. LEXIS 1957 (S.D. Cal. January 9, 2007), posted yesterday.
