Anticipation

By Wayne C. Fricke; Jan 1999

     The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Additionally, the Washington State Constitution provides:

“No person shall be disturbed in his private affairs or his home invaded without authority of law.”

Wash. Const. 1 § 7.

Probable cause has two elements:

     (1) whether a reasonable person, given the evidence presented, would believe that the items sought is contraband or other evidence of a crime, and 2) whether a reasonable person, given the evidence presented, would believe that the items sought are likely to be found at the place to be searched.  State v. Goble, at 508.  Ultimately it requires a nexus between a criminal activity and the item to be seized and also a nexus between the item to be seized and the place to be searched.

     Police are increasingly applying for what are known as "anticipatory warrants."  Most of these warrants (but not all) involve controlled delivery situations where the police control the delivery of the contraband and then seek a warrant prior to the delivery, knowing that the delivery is about to occur.  In attacking these warrants, the question is whether the issuing Magistrate/Judge had probable cause to believe that the item to be seized will be at the place to be searched when the warrant is executed and the search occurs.  State v. Goble, 88 Wn.App. 503, 509-10, 945 P.2d 263 (Div. II 1997).  There must be a nexus between the place to be searched and items to be seized.  Id. at 511.

     There are only two State appellate cases that address this issue.  See State v. Goble, supra; State v. Gonzales, infra.

     Division III of the Court of Appeals looked at the validity of anticipatory warrants in State v. Gonzales, 77 Wn.App. 479, 891 P.2d 743 (1995).  The court, in Gonzales, noted that Washington had not yet ruled on the question as to whether anticipatory/conditional warrants are objectionable, but noted that the general rule was that they are not per se objectionable if done under limited circumstances.  77 Wn.App. at 484 citing United States v. Garcia, 882 F.2d 699, 702-704 (2nd Cir), cert. denied, sub. nom. Grant v. United States, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989).

     Further, for an anticipatory warrant to be valid, the issuing magistrate should protect against abuse by listing in the warrant "conditions governing the execution which are explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents."  77 Wn.App. at 484 citing United States v. Garcia, 882 F.2d at 703-704.  The court in Gonzales noted that the warrant at issue there was not conditional because it was absolute on its face and gave police the right to immediately enter the individual's apartment without the occurrence of a future event.  Id. at 484.

     Indeed, those federal cases which have discussed the validity of anticipatory warrants require a conditional event before the validity of the warrant would be upheld.  See United States v. Hotal, 1998 W.L. 230047 (9th Cir. 1998).  As stated therein:

"It is equally important to ensure that all parties be advised when the search may first take place, and the conditions upon the occurrence of which the search is authorized and may lawfully be instituted.  Requiring anticipatory warrants to set a triggering event serves all of these purposes. Indeed, our particularity requirements with respect to other aspects of the warrant would serve little purpose if the warrant could be executed without regard to whether the triggering event has actually occurred; for example, if a place named in a warrant may only be searched if certain conditions have occurred at that place, the warrant's description of the place, without more, would not serve properly to curb the discretion of the officers or to advise adequately the property owner, absent the specification of these conditions.”

     As noted in Hotal and Gonzales, this is the only way to effectively safeguard against unreasonable and unbound searches.  These conditions have also been adopted by the 6th, 7th, 8th, and 10th Circuits.  See United States v. Ray, 923 F.2d 1217, 1221 (6th Cir. 1991); United States v. Dennis, 115 F.3d 524, 529 (7th Cir. 1997); United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993); United States v. Hugoboom, 112 F.3d 1081, 1086-87 (10th Cir. 1997).

     Recently, Division II, in State v. Goble, supra, followed the federal precedence and agreed that anticipatory warrants are not per se unreasonable, but again placed strict requirements before probable cause will be found.

     In sum, as of this date only two cases in the State of Washington have addressed the issues of anticipatory warrants.  And only one of those cases ultimately decided that the warrants are valid, but found that the warrant did not meet the requirements for probable cause.  See, State v. Goble, supra

     Given the nature of anticipatory warrants, it is imperative, in analyzing the situation, to determine whether the police have control over the triggering event.  And when they do, in addressing the issue, it is imperative to determine whether the “anticipatory warrant” is actually a warrant that is absolute on its face.  If it is, it will be invalid.  If it doesn’t include a trigger event it will be invalid because it becomes absolute.  Further, if confronted with an “anticipatory warrant” a review of federal law will be necessary in analyzing the issue.

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