Md: The Cheye Calvo raid...
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Some drug dealers stole identities and had drugs shipped to those innocent people with the intent of picking up the packages from those doorsteps before the innocent person picked up the package and brought it inside. Cops knew this. This was what they were trying to stop. Ok, by logic that tells me that anyone taking the package inside the house is probably an innocent victim of the identity theft and not a drug dealer. By placing the package outside the door and waiting to see if the drug dealer came by to take it, the police deliberately endangered the occupants of the house. If the drug dealer had shown up and been armed and decided to exchange fire with the police, anyone inside the house would have been at risk. If the dealer entered the house to avoid the police, you have a hostage situation with the lives of the mayor and his family at risk. The reason for this? To sieze drugs that the police already had in their possession.
These police weren't trying to stop anything. Already having the drugs in their possession and knowing the occupants of the house were probably innocent victims of identity theft and knowing of the possibility of an armed individual coming to retrieve those drugs, they deliberately created a situation where people could have been killed and were in full knowledge of what they were doing. Do you think for a moment that this tactic, if shown to be legal by lack of prosecution, doesn't bypass the 4th Amendment and give the police the power to enter by force any house they choose to?
The thing that concerns me most about these raids is the extremes the police are willing to go to create them, risking civilian's lives for absolutely no reason and having the powers that be completely exonerate them when things go bad. The war on drugs was meant to attack the source of drug trafficing in the US, not the destination. It has become an excuse to violate civil rights and put a fear of the police in the populace.
Police to the Judge: "Your Honor, we require a search warrant for these premises."
The Judge: "On what grounds?"
Police: "We know that a sizeable amount of illegal narcotics are going to be there."
The Judge: "Going to be? How reliable is your source of information?"
The Police: "Very reliable, your honor. We're the one's delivering them."
These police weren't trying to stop anything. Already having the drugs in their possession and knowing the occupants of the house were probably innocent victims of identity theft and knowing of the possibility of an armed individual coming to retrieve those drugs, they deliberately created a situation where people could have been killed and were in full knowledge of what they were doing. Do you think for a moment that this tactic, if shown to be legal by lack of prosecution, doesn't bypass the 4th Amendment and give the police the power to enter by force any house they choose to?
The thing that concerns me most about these raids is the extremes the police are willing to go to create them, risking civilian's lives for absolutely no reason and having the powers that be completely exonerate them when things go bad. The war on drugs was meant to attack the source of drug trafficing in the US, not the destination. It has become an excuse to violate civil rights and put a fear of the police in the populace.
Police to the Judge: "Your Honor, we require a search warrant for these premises."
The Judge: "On what grounds?"
Police: "We know that a sizeable amount of illegal narcotics are going to be there."
The Judge: "Going to be? How reliable is your source of information?"
The Police: "Very reliable, your honor. We're the one's delivering them."
Eric, being very aware of the law pertaining to forced entry into a dwelling the question is should there have been this type of raid at all. DWFan, your absolutely correct and thats where PGC investigative unit screwed this whole thing up. Not uncommon at all for a drug raid on a house to go exactly this way with everything from kicking doors,flashbang grenades,shooting dogs(when dogs threaten or jeopordize LE safety) ,cuffing-detaining and questioning everyone in the house. Happens everyday and its not done with a few uniformed officers. The amount of officers will depend again on inteligence units finding out how many occupants(two and four legged , to the best of their knowledge), the layout of structure ,weapons in the house etc. Any info. that can help raid team do their job. It is always important to try to find out about the perps your getting ready to accost and there was clearly time for PGC to do that. That Eric, if all the current facts remain the same, is were the screw up is. Again,PGC knowing packages where previously being delivered to innocent people and not finding out who`s house they were going to raid. Put yourself in innocent families position especially disscharging firearm around your family and shooting dogs . LEO`s have a tough job today and nobodies perfect but a "keystone cop" stunt like this doesn`t make things any easier. This is not an LEO bashing thread but,, The lack of investigative work was inexcuseable and impossible to defend.
It wasn't my intent to bash law enforcement. The majority of them do their job quite well. My complaint is directed against those "specialized units" who equate law enforcement with the military and conduct military style operations against civilians with little or no regard to accuracy or civil rights; that place both the officers and civilians in harm's way for no reason.
The police were never intended to be the Army or Marines.
The War on Drugs, along with the domestic War on Terror, deliberately strips the American population of rights guaranteed under the Bill of Rights while being funded by tax dollars of very same persons that it victimizes. Both the WoD and the WoT promised to attack the source of these problems but money and resources are instead being directed against the lowest rungs of the ladder and, in repeated errors, against law-abiding citizens.
The same tactics that are used by the police in the WoD and WoT are those that will be used to confiscate your firearms. Empowering them now to continue this style of "law enforcement" empowers them later to do whatever else they "need" to do.
The police were never intended to be the Army or Marines.
The War on Drugs, along with the domestic War on Terror, deliberately strips the American population of rights guaranteed under the Bill of Rights while being funded by tax dollars of very same persons that it victimizes. Both the WoD and the WoT promised to attack the source of these problems but money and resources are instead being directed against the lowest rungs of the ladder and, in repeated errors, against law-abiding citizens.
The same tactics that are used by the police in the WoD and WoT are those that will be used to confiscate your firearms. Empowering them now to continue this style of "law enforcement" empowers them later to do whatever else they "need" to do.
Respecting the Prince George County Sheriff’s Dept. refusing to clear the mayor and his family, I assume that that is still the case, with regard to what appears to be a police screw up, this drug raid, the following comes to mind.
I would really like to be that proverbial "fly on the wall" in the offices of the Sheriff or PGC Police Chief, while discussions take place with their legal counsel and insurance carrier regarding how this fiasco like set of circumstances might be "finessed" so as to allow the maximum of CYA, with the minimum of responsibility being placed on the shoulders of the people where responsibility obviously belongs.
I suspect that hearing/listening to such discussions would prove interesting as all get out, as that old saying goes. Given that neither I nor anyone else will be party to the above mentioned discussions, they would still prove most interesting to hear, or so I'm tempted to conclude.
I would really like to be that proverbial "fly on the wall" in the offices of the Sheriff or PGC Police Chief, while discussions take place with their legal counsel and insurance carrier regarding how this fiasco like set of circumstances might be "finessed" so as to allow the maximum of CYA, with the minimum of responsibility being placed on the shoulders of the people where responsibility obviously belongs.
I suspect that hearing/listening to such discussions would prove interesting as all get out, as that old saying goes. Given that neither I nor anyone else will be party to the above mentioned discussions, they would still prove most interesting to hear, or so I'm tempted to conclude.
That is the presumption we all have right now. The tactic is not new, nor is it a "surprise" to law enforcement. The real question is whether PGC or the Arizona investigators had any reason to believe this was the case for this shipment.
Not quite.
There are some possibilities here. First is that you're right. It's a distraction-drop for the drug dealers. The cops watching the house might have expected someone to drive by, park, walk up & snatch the parcel and boogey to his car. That would have given them their recipient druggie.
Second is that the person to whom the package is addressed arrives home and takes the package inside. Now police have something to possibly prosecute.
Third... this incident: a 3rd party (not the recipient) takes the package inside. This establishes the package's delivery to the residence and it's "Acceptance". (see below)
My belief is that they were attempting to "catch" whomever was supposed to receive the drugs. When the mayor took the package inside it crossed a decision switch that said "okay, we bust the first person".
Though... another thing bothers me. IF the timeline is correct that the mayor recovered the package, walked the dogs (waving to the cops), returned with the dogs and had time to partially undress... why the delay? I can only think that they held off when the mayor exited to walk the dogs, until he returned, so they could "catch" him in the raid.
Parcel receipt. No word on the status of the parcel with respect to it being opened or still sealed. At a guess, it was still sealed (otherwise it would have been "newsworthy" that the mayor didn't report it). By this example, it says police could/might plant evidence on your doorstep in this fashion and use it. Only a truely corrupt agency would do so. But it says that if you receive an "unexpected" parcel or you don't recognize the shipper's name, acceptance at delivery becomes a risk to find yourself engaged with the criminal system.
When signing for a parcel, all you are signing for is the box or container. You sign that you received one or more parcels. The contents are unknown, as are the condition of the contents (unless specifically noted as damaged/crushed etc.). Despite so-called "possession" laws, receipt of a parcel does not represent "acceptance" of the contents. Damages, missing items, content theft occur daily. IF this is the basis of the PGC prosecution of the mayor, it will fail if the box was unopened.
Even if the box was opened, there is/can/will be a delay between the time it is opened, the contents examined and a call to police made. This would be the
WTF is going on? reaction by the [innocent] recipient. Allowing some time to pass in the hopes they could barge in while still engaged in the WTF mode is disenginous at best and criminal entrapment at worst.
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Sounds like they wanted a DeLoren bust.
SFPD had a Chinese officer that was as pretty and as well built as one of my former girlfriends, who was a Playboy bunny in 88.
The girl would come in in the morning, still dressed from the nights entrapments, and, it was just that.
If you had never considered prostitution, one look at her and you'd be seeing if she took credit cards.
I could NEVER have, in good faith, prosecuted anyone she arrested for solicitation.
This situation is so bad, it really makes me wonder if 1984 isn't right around the corner...
Regarding "dynamic entries"...
Agreed, if the police can refrain from using almost any excuse to justify avoiding "Knock and Announce". We must balance the "tactical" justifications with reasonable belief. E.G. someone appearing at the window and watching the raid team approach does not always rise to the level of a threat (certainly it might when raiding a known gang location or known drug dealer).
While I think police should have the ability to do so, I think the standards of the profession should set that bar high. If police use a "lighting change" as their justification, then they need to articulate how that lighting change differs from an "innocent" change, such as a person moving from one room to the next or going to bed. Remember -- it is not supposed to be easy for police to arrest and prosecute. Warrants are required and an oath sworn... yet no there seems to be zero in the way of repercussions for bad warrants (when the charge should be perjury). We should enforce the oath and also require solid justification for abandoning the need to knock.
The Ken Ballew incident in 1971 is a classic example of police (in this case ATF) attempting to justify their attack on citizens. In that case, ATF undercover agents raided his home in darkness. The agents had long hair and beards (described as looking like Hippies). ATF's absurd allegation that Ballew "should have known" they were federal officers was based on their claim that agents were all wearing gray sweatshirts with yellow armbands that said ATF (it was later disclosed they donned the armbands after the raid). In the long run, this case was supposed to initiate "standards" for clothing when conducting raids.
Here in the Stockton/Modesto area a while back an officer's shotgun discharged during the service of an arrest warrant in his home. The recipient was the arrestee's 15 y/o son who was prone on the floor with his hands on his head. The downside was that the ND and even the dynamic entry into the home around 6:30am was unnecessary. Police could have utilized other options to safely arrest the boy's father.
Agreed, if the police can refrain from using almost any excuse to justify avoiding "Knock and Announce". We must balance the "tactical" justifications with reasonable belief. E.G. someone appearing at the window and watching the raid team approach does not always rise to the level of a threat (certainly it might when raiding a known gang location or known drug dealer).
While I think police should have the ability to do so, I think the standards of the profession should set that bar high. If police use a "lighting change" as their justification, then they need to articulate how that lighting change differs from an "innocent" change, such as a person moving from one room to the next or going to bed. Remember -- it is not supposed to be easy for police to arrest and prosecute. Warrants are required and an oath sworn... yet no there seems to be zero in the way of repercussions for bad warrants (when the charge should be perjury). We should enforce the oath and also require solid justification for abandoning the need to knock.
The Ken Ballew incident in 1971 is a classic example of police (in this case ATF) attempting to justify their attack on citizens. In that case, ATF undercover agents raided his home in darkness. The agents had long hair and beards (described as looking like Hippies). ATF's absurd allegation that Ballew "should have known" they were federal officers was based on their claim that agents were all wearing gray sweatshirts with yellow armbands that said ATF (it was later disclosed they donned the armbands after the raid). In the long run, this case was supposed to initiate "standards" for clothing when conducting raids.
Here in the Stockton/Modesto area a while back an officer's shotgun discharged during the service of an arrest warrant in his home. The recipient was the arrestee's 15 y/o son who was prone on the floor with his hands on his head. The downside was that the ND and even the dynamic entry into the home around 6:30am was unnecessary. Police could have utilized other options to safely arrest the boy's father.
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"Some drug dealers stole identities and had drugs shipped to those innocent people with the intent of picking up the packages from those doorsteps before the innocent person picked up the package and brought it inside. Cops knew this. This was what they were trying to stop."
That is an assumption.
"That is the presumption we all have right now."
Well, at least someone admits it.
"The real question is whether PGC or the Arizona investigators had any reason to believe this was the case for this shipment.""
Nothing to that effect has surfaced in the media reports.
Look, the everything was routine up intil the breach, and even that boarders on routine. The dogs... it is the dogs. But I'm starting to sound like a broken record. I'll await further "information" via the media.
That is an assumption.
"That is the presumption we all have right now."
Well, at least someone admits it.
"The real question is whether PGC or the Arizona investigators had any reason to believe this was the case for this shipment.""
Nothing to that effect has surfaced in the media reports.
Look, the everything was routine up intil the breach, and even that boarders on routine. The dogs... it is the dogs. But I'm starting to sound like a broken record. I'll await further "information" via the media.
Quote BillCA:
"By this example, it says police could/might plant evidence on your doorstep in this fashion and use it. Only a truely corrupt agency would do so."
Check your history books. The amount of illegal activities by the FBI in investigating the Weather Underground and Black Panther organizations in the 60's and 70's made it all but impossible to prosecute individuals due to extreme civil rights violations.
The Patriot Act made those same activities legal. If an action is ruled by the courts as legal, by definition then it is not an act of a corrupt agency, but accepted law enforcement procedure.
"By this example, it says police could/might plant evidence on your doorstep in this fashion and use it. Only a truely corrupt agency would do so."
Check your history books. The amount of illegal activities by the FBI in investigating the Weather Underground and Black Panther organizations in the 60's and 70's made it all but impossible to prosecute individuals due to extreme civil rights violations.
The Patriot Act made those same activities legal. If an action is ruled by the courts as legal, by definition then it is not an act of a corrupt agency, but accepted law enforcement procedure.
Shiner Bock
New member
So if the cops were right in what they were doing, why didn't they arrest the mayor? Did they not have him in possession of 30 something pounds of marijuana? What could possibly cause them to decide not to make an arrest after the raid was conducted that couldn't have been found out without a ninja raid?
Oh... I can't help myself.
SB,
The purpose of a search warrant is to search for, and hopefully find, evidence of criminal activity. Assuming that it is found, that evidence may or may not lead to probable cause to arrest someone, and even when it does, often times the prosecutors prefer to defer arrests or indictments for later dates. And what the prosecutors want, strategy wise, they usually get.
SB,
The purpose of a search warrant is to search for, and hopefully find, evidence of criminal activity. Assuming that it is found, that evidence may or may not lead to probable cause to arrest someone, and even when it does, often times the prosecutors prefer to defer arrests or indictments for later dates. And what the prosecutors want, strategy wise, they usually get.
The warrant does not, however, state that the police may bring that evidence with them when they go to the subject's residence. That is what these cops did.
They really need to read Sir Robert Peel's Nine Principles
- The basic mission for which the police exist is to prevent crime and disorder.
- The ability of the police to perform their duties is dependent upon public approval of police actions.
- Police must secure the willing co-operation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.
- The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.
- Police seek and preserve public favour not by catering to public opinion but by constantly demonstrating absolute impartial service to the law.
- Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient.
- Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
- Police should always direct their action strictly towards their functions and never appear to usurp the powers of the judiciary.
- The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.
Erik said:
I'd say they were reasonable in considering the premature discovery of the raid "dangerous" if there were some evidence that they KNEW they were dealing with dangerous occupants. The only such evidence is that the package was addressed to the Mayor's wife, so she might have been a drug dealer, and drug dealers might be dangerous. That doesn't seem like a reasonable suspicion to me, unless they did virtually no pre-raid investigation.
I'd say they were reasonable in considering the premature discovery of the raid might result in the destruction of relevant evidence if someone can explain how you destroy 32 lbs of pot without a trace in the time it would take to finish walking across a lawn and knock on a door.
I'd say they were reasonable in believing that the premature discovery of the raid might render the raid futile if....well, if someone could explain to me why that is reasonable.
The purpose of a search warrant is to curb and limit police. Police do not have the knowledge of the law that a judge does. A judge, sitting back, detached from the situation, is not likely to get caught up in the moment, but, to follow the law. The warrant is a check, or balance if you would, to keep police in check. Power is addicting, and, the concept of checks and balances is to limit the police power.
+1 Socrates on warrant. Also the reverse is true. As the warrant issueing judge knows the law, the LE going to that judge requesting the warrant is supposed to have enough facts about situation and give judge those facts so as judge can make intel. decision whether to issue warrant. Guarantee judge did not know full story behind this one or the fact that this was mayors house. Again if facts as we know stay the same,I would hate to be requesting LE cause you can be sure that person has already been in front of that judge(behind closed doors) again. Makes judge look like he signed off on warrant to easily.Judges don`t like to be embarrased and I`m sure during the invest. of this whole mess he`ll be questioned
From the other end, my friend in the PD used to write the warrants before going to a judge. It also forces the PD to have a competent police officer, usually senior in position, review the warrant and facts, and, that's another check on arbitrary power. As Shortwave has pointed out, you do NOT want to get a judge responsible for signing warrants false, or poor information on the case to get the warrant.
Writing warrants was both a skill, and something my friend took pride in never getting refused. Falsify or omit such important facts, and, there is an excellent chance you'll be doing meter maid, since NO judge will sign on one of your warrants. While that's the usual check and balance in the rest of the world, this place does not seem to be the same, but, I could be wrong...
Writing warrants was both a skill, and something my friend took pride in never getting refused. Falsify or omit such important facts, and, there is an excellent chance you'll be doing meter maid, since NO judge will sign on one of your warrants. While that's the usual check and balance in the rest of the world, this place does not seem to be the same, but, I could be wrong...
Socrates is correct. And... there was a warrant. CAn anyone confirm the type? Likely an anticipatory, but assumptions... well, we shouldn't make them.
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"The warrant does not, however, state that the police may bring that evidence with them when they go to the subject's residence. That is what these cops did."
Incorrect. Agents of the government, whether LEOs or not, may make controlled deliveries of contrabands to locations to be later searched. This fellow describes it better than I ever could:
ANTICIPATORY SEARCH WARRANTS
By
A. Louis DiPietro, J.D.
Special Agent and Legal Instructor, FBI Academy
The fourth amendment to the U. S. Constitution requires that search warrants be based on a showing of probable cause. The probable cause requirement is satisfied when a law enforcement officer sets forth facts which indicate a fair probability that a crime has been committed and that evidence of that crime is presently located at a particular location. (1)
Sometimes, however, law enforcement officers only have information that evidence will be in a particular location at some future time, but have no reliable information about the present location of that evidence. For example, an officer might receive reliable source information indicating that contraband will be delivered to a particular address the next day. If the officer waits until the delivery is made to obtain a warrant to search that location, the officer runs the risk that the evidence will be moved or destroyed before the warrant can be executed. As an alternative, the officer might conduct a warrantless search of the premises immediately upon delivery of the contraband and attempt to justify that search under the emergency exception (2) to the warrant requirement. The risk the officer runs by this course of action is that a court may find probable cause lacking or fail to recognize the emergency, and accordingly, suppress the evidence under the provisions of the exclusionary rule. (3)
The law provides a solution to this dilemma. Rather than risking either loss or suppression of the evidence, the officer can use an anticipatory or prospective search warrant. An anticipatory search warrant is based on a showing of probable cause that at some future time (but not presently) certain evidence of crime will be located at a specific place. Where officers have probable cause to believe that evidence or contraband will arrive at a certain location within a reasonable period of time, they need not wait until delivery before requesting a warrant. Instead, officers may present this probable cause to a magistrate prior to the arrival of that evidence, and the magistrate can issue an anticipatory search warrant based on probable cause that the evidence will be found at the location to be searched at the time the warrant is executed.
The purpose of this article is to acquaint law enforcement officers with the uses and requirements for anticipatory warrants. After reviewing the general judicial acceptance of anticipatory warrants, the article discusses numerous court decisions involving various investigative applications for anticipatory search warrants. The article also offers several recommendations for avoiding potential constitutional challenges to the use of anticipatory warrants.
JUDICIAL ACCEPTANCE OF ANTICIPATORY WARRANTS
Although the Supreme Court has never directly addressed the issue of anticipatory warrants, (4) numerous lower courts have ruled that it is constitutionally permissible to obtain such a warrant. Challenges to the constitutionality of prospective search warrants often involve claims that the fourth amendment probable cause requirement is not satisfied, because at the time of the warrant's issuance, there is no probable cause to believe that the items to be seized are presently at the place to be searched.
However, the vast majority of State and Federal courts that have considered this question have concluded that anticipatory warrants are constitutional and consistent with the longstanding preference that whenever possible, police obtain judicial approval before searching. Judicial acceptance of the anticipatory warrant also encourages police to use the warrant process rather than taking warrantless action. Moreover, privacy interests are better protected by permitting law enforcement officers to obtain warrants in advance if they can show probable cause to believe that the object of the search will be located on the premises at the time the search takes place.
INVESTIGATIVE APPLICATIONS OF ANTICIPATORY WARRANTS
For purposes of this article, court decisions involving various investigative applications of anticipatory warrants have been categorized according to the degree of police control over the delivery of the evidence to the place to be searched as follows: 1) Mail deliveries; 2) controlled delivery by cooperating witness; and 3) delivery uncontrolled by the government.
Mail Deliveries
The anticipated mail delivery of packages containing items subject to seizure is the most common use for anticipatory warrants. (5) For example, in United States v. Goodwin, (6) and United States v. Dornhofer, (7) the U. S. Postal Inspection Service set up a child pornography reverse sting operation to locate and prosecute individuals who receive child pornography through the mail.
Postal inspectors mailed to the defendants child pornography catalogs summarizing available material in graphic terms. After receiving orders from the defendants for this material, postal inspectors obtained anticipatory search warrants to search those locations where the material was to be delivered. In both cases, the postal inspectors affirmed in their search warrant affidavits that through their efforts, pornographic materials would be delivered by mail to the particular locations to be searched. Government agents, thereafter, observed the anticipated deliveries and then executed the search warrants and recovered the delivered pornography, as well as other sexually explicit material.
In both cases the U. S. Court of Appeals for the Fourth Circuit upheld the constitutionality of these anticipatory warrants. The court concluded there was probable cause to issue a search warrant, even though at the time of the warrant's issuance the evidence had not yet been delivered to the location to be searched.
Controlled Delivery by Cooperative Witness
In United States v. Garcia, (8) two U.S. military servicemen, Hooks and Oliver, were caught by U. S. Customs agents in Miami trying to smuggle cocaine into the country from Panama. After being flown to New York to meet with Drug Enforcement Administration (DEA) agents, Hooks and Oliver agreed to cooperate and proceed with a controlled delivery of the cocaine. They telephoned the defendant and made arrangements to bring the cocaine to the apartment where she was then located. Before delivery, DEA agents applied for and received an anticipatory search warrant for that apartment. With the cocaine still in their duffel bags, Hooks and Oliver went to the apartment under observation of DEA agents. After being admitted and given permission to wait for the defendant, Hooks and Oliver sat down in the living room and placed the duffel bags next to them. Five to 10 minutes later, while Hooks and Oliver were still waiting and before the defendant or anyone else had taken possession of the duffel bags, DEA agents entered and executed the search warrant.
The U. S. Court of Appeals for the Second Circuit upheld the validity of the anticipatory search warrant and concluded as follows:
``The fact that contraband is not `presently located at the place described in the warrant' is immaterial, so long as `there is probable cause to believe that it will be there when the search warrant is executed.' '' (9)
In rejecting the defendant's claim that the agents acted prematurely when they entered and searched the apartment before the cocaine was transferred personally to the defendant, the court stated that the warrant was valid upon delivery of cocaine to the apartment and did not require that anyone take possession prior to execution of the warrant.
Delivery Uncontrolled by the Government
In some cases, anticipatory warrants have been used where officers do not have control over the delivery of evidence to the location to be searched. For example, in United States v. Goff, (10) DEA agents in Seattle developed probable cause to believe that Goff and Jacobson were making a 36-hour round trip to Miami to purchase a large quantity of cocaine. After airline personnel confirmed that the defendants had boarded the nonstop return flight to Seattle, the agents applied for an anticipatory warrant that was issued while the plane was in flight.
In approving the subsequent search that occurred when the defendants disembarked from the plane in Seattle, the U. S. Court of Appeals for the Ninth Circuit held that there was probable cause to believe that the persons searched would arrive within the district in a reasonable time and that the warrant could not be executed until their arrival. The court concluded that issuing a warrant in anticipation of these events created no danger that the property seized would be other than the property sought in the warrant; anticipating future events did not detract from probable cause which must exist at the time of the search. (11)
In another uncontrolled delivery case, Commonwealth v. Reviera, (12) an undercover officer went to a certain address, knocked on the door, and told the defendant who answered the door that he wished to buy one ounce of cocaine. The defendant said he was waiting for delivery, which would occur at approximately 10:00 p.m., and directed the undercover officer to return after 10:00 p.m., at which time he could purchase cocaine for $1,300 per ounce. Several other persons also approached the defendant about buying cocaine and were similarly told to return after 10:00 p.m. Based on these facts and additional informant information, an anticipatory warrant was obtained. The Pennsylvania Superior Court upheld the validity of this anticipatory warrant on the grounds there was a fair probability that contraband and evidence would be found at the particular location to be searched at the time the warrant would be executed.
POTENTIAL CONSTITUTIONAL CHALLENGES
The fourth amendment mandates that all search warrants, including anticipatory warrants, be based on facts establishing probable cause and must particularly describe the place to be searched and the person or things to be seized. The warrant must be issued by a neutral and detached magistrate. Anticipatory warrants can also be challenged on constitutional grounds if the search warrant affidavit lacks adequate facts indicating that the evidence to be seized is on a ``sure course'' to the location to be searched, or if there is inadequate judicial control of the warrant execution.
Evidence on a ``Sure Course'' to Delivery
Although the vast majority of Federal and State courts that have considered anticipatory warrants have approved their use, some courts have required a showing that the contraband or evidence to be seized is on a ``sure course'' to its destination. For example, in United States v. Hendricks, (13) a Customs officer inspected a cardboard box arriving from Brazil, which was addressed to Hendricks in Tucson, Arizona, but shipped in such a manner that Hendricks was required to pick it up personally in Tucson. Inside the box was a suitcase in which the inspector found hidden 5 to 7 pounds of cocaine. The box was sent on to Tucson where it was turned over to the DEA. While holding the box, DEA agents developed additional incriminating evidence and applied for a search warrant to search Hendricks' residence.
The magistrate issuing the warrant knew that the suitcase was then in the DEA's possession and not at the Hendricks residence, and accordingly, inserted a provision in the warrant specifying that it was to be executed only upon the condition that the box is brought to the Hendricks residence. However, since at the time the warrant was issued, Hendricks had not picked up the box, there was no assurance that he would pick it up, or even if he did, that he would ever take the box to the house. Therefore, the court found there was not a sufficient nexus or connection between the box and the residence. The court held that unless the suitcase was on a sure course to the house (as for example in mail addressed to the house), no probable cause would exist to believe it would arrive there. (14)
The ``sure course'' language of Hendricks has been cited with approval by several other courts. (15) To help ensure that a warrant will withstand subsequent attack based on lack of sufficient nexus between the place to be searched and the things to be seized, prudent investigators should attempt to develop facts indicating that the evidence is on a sure and irreversible course to its destination prior to applying for an anticipatory warrant.
Ensuring Adequate Judicial Control of Warrant Execution
The element of time may be highly relevant to the validity of a search warrant and its execution. The reason many courts require traditional search warrants to be executed ``forthwith'' is to ensure that measure of judicial control over the search which the warrant procedure is intended to accomplish. Passage of an undue amount of time between issuance and execution raises the danger that the described property will no longer exist at the premises to be searched. The danger of loss of judicial control might be as great in the case of a warrant issued to take effect some time in the future as in the case of a stale warrant. (16)
An anticipatory warrant is based on a magistrate's determination that sufficient probable cause exists to believe that at some future time (but not presently), certain evidence will be located at a particular place. A potential constitutional problem with such warrants is that the issuing magistrate abdicates to the officers executing the warrant an important judicial function, namely, the determination that probable cause exists to believe that the objects are currently in the place to be searched.
While it is logical to assume that officers will not be disposed to undermine the success of their investigative efforts by the premature execution of an anticipatory warrant, it is nonetheless preferable to deal with time limitations as to execution explicitly in the warrant application process. (17) In that regard, some courts prefer the issuing magistrate to protect against premature execution by defining the circumstances and/or conditions that must be present prior to its execution. (18) For example, the issuing magistrate could delete the forthwith command found preprinted on many warrant forms and insert a directive that execution occur only upon the happening of a specific event, such as delivery of the evidence. This ensures judicial control because if the critical future event never occurs, the warrant may not be executed. (19)
To guard against successful challenges to the validity of anticipatory warrants based on an alleged loss of judicial control in their execution, officers should place reasonable limiting language in their warrant affidavits specifying that execution will not occur in the absence of a particular contingency, such as: 1) A scheduled time for delivery; 2) a given event; 3) police surveillance confirming that the package has been delivered; or 4) a particular method that allows executing officers to know that the items are in the place to be searched. Such language in the affidavit may save an otherwise defective warrant if the magistrate merely fails to include that limiting language in the warrant itself.
CONCLUSION
The anticipatory or prospective search warrant is obtained in advance of the anticipated time for delivery of evidence to the place to be searched so police may promptly execute the search when delivery is made. When police are confronted with the need for quick action, anticipatory warrants provide a practical alternative to proceeding with no warrant and risking suppression of the evidence. If police delay applying for a warrant until the evidence arrives at the place to be searched, they increase the risk that the evidence will be lost before the search can be made. Officers applying for anticipatory warrants should ensure that their search warrant affidavits meet traditional fourth amendment requirements, and also reflect that the items are on a ``sure course'' to the place to be searched. Officers should also include appropriate limiting language in the affidavit to prevent loss of judicial control.
Author's Note
On May 1, 1990, the U.S. Supreme Court sent to Congress proposed amendments to Rule 41(a) of the Federal Rules of Criminal Procedure. The first amendment would permit warrants to search where the person or property is outside the jurisdiction when the warrant is issued, but within the district by the time the warrant is executed. A second amendment would permit the issuance, by Federal magistrates only, of search warrants for property or persons who are within the district when the warrant is issued, but might move outside the district before the warrant is executed.
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"The warrant does not, however, state that the police may bring that evidence with them when they go to the subject's residence. That is what these cops did."
Incorrect. Agents of the government, whether LEOs or not, may make controlled deliveries of contrabands to locations to be later searched. This fellow describes it better than I ever could:
ANTICIPATORY SEARCH WARRANTS
By
A. Louis DiPietro, J.D.
Special Agent and Legal Instructor, FBI Academy
The fourth amendment to the U. S. Constitution requires that search warrants be based on a showing of probable cause. The probable cause requirement is satisfied when a law enforcement officer sets forth facts which indicate a fair probability that a crime has been committed and that evidence of that crime is presently located at a particular location. (1)
Sometimes, however, law enforcement officers only have information that evidence will be in a particular location at some future time, but have no reliable information about the present location of that evidence. For example, an officer might receive reliable source information indicating that contraband will be delivered to a particular address the next day. If the officer waits until the delivery is made to obtain a warrant to search that location, the officer runs the risk that the evidence will be moved or destroyed before the warrant can be executed. As an alternative, the officer might conduct a warrantless search of the premises immediately upon delivery of the contraband and attempt to justify that search under the emergency exception (2) to the warrant requirement. The risk the officer runs by this course of action is that a court may find probable cause lacking or fail to recognize the emergency, and accordingly, suppress the evidence under the provisions of the exclusionary rule. (3)
The law provides a solution to this dilemma. Rather than risking either loss or suppression of the evidence, the officer can use an anticipatory or prospective search warrant. An anticipatory search warrant is based on a showing of probable cause that at some future time (but not presently) certain evidence of crime will be located at a specific place. Where officers have probable cause to believe that evidence or contraband will arrive at a certain location within a reasonable period of time, they need not wait until delivery before requesting a warrant. Instead, officers may present this probable cause to a magistrate prior to the arrival of that evidence, and the magistrate can issue an anticipatory search warrant based on probable cause that the evidence will be found at the location to be searched at the time the warrant is executed.
The purpose of this article is to acquaint law enforcement officers with the uses and requirements for anticipatory warrants. After reviewing the general judicial acceptance of anticipatory warrants, the article discusses numerous court decisions involving various investigative applications for anticipatory search warrants. The article also offers several recommendations for avoiding potential constitutional challenges to the use of anticipatory warrants.
JUDICIAL ACCEPTANCE OF ANTICIPATORY WARRANTS
Although the Supreme Court has never directly addressed the issue of anticipatory warrants, (4) numerous lower courts have ruled that it is constitutionally permissible to obtain such a warrant. Challenges to the constitutionality of prospective search warrants often involve claims that the fourth amendment probable cause requirement is not satisfied, because at the time of the warrant's issuance, there is no probable cause to believe that the items to be seized are presently at the place to be searched.
However, the vast majority of State and Federal courts that have considered this question have concluded that anticipatory warrants are constitutional and consistent with the longstanding preference that whenever possible, police obtain judicial approval before searching. Judicial acceptance of the anticipatory warrant also encourages police to use the warrant process rather than taking warrantless action. Moreover, privacy interests are better protected by permitting law enforcement officers to obtain warrants in advance if they can show probable cause to believe that the object of the search will be located on the premises at the time the search takes place.
INVESTIGATIVE APPLICATIONS OF ANTICIPATORY WARRANTS
For purposes of this article, court decisions involving various investigative applications of anticipatory warrants have been categorized according to the degree of police control over the delivery of the evidence to the place to be searched as follows: 1) Mail deliveries; 2) controlled delivery by cooperating witness; and 3) delivery uncontrolled by the government.
Mail Deliveries
The anticipated mail delivery of packages containing items subject to seizure is the most common use for anticipatory warrants. (5) For example, in United States v. Goodwin, (6) and United States v. Dornhofer, (7) the U. S. Postal Inspection Service set up a child pornography reverse sting operation to locate and prosecute individuals who receive child pornography through the mail.
Postal inspectors mailed to the defendants child pornography catalogs summarizing available material in graphic terms. After receiving orders from the defendants for this material, postal inspectors obtained anticipatory search warrants to search those locations where the material was to be delivered. In both cases, the postal inspectors affirmed in their search warrant affidavits that through their efforts, pornographic materials would be delivered by mail to the particular locations to be searched. Government agents, thereafter, observed the anticipated deliveries and then executed the search warrants and recovered the delivered pornography, as well as other sexually explicit material.
In both cases the U. S. Court of Appeals for the Fourth Circuit upheld the constitutionality of these anticipatory warrants. The court concluded there was probable cause to issue a search warrant, even though at the time of the warrant's issuance the evidence had not yet been delivered to the location to be searched.
Controlled Delivery by Cooperative Witness
In United States v. Garcia, (8) two U.S. military servicemen, Hooks and Oliver, were caught by U. S. Customs agents in Miami trying to smuggle cocaine into the country from Panama. After being flown to New York to meet with Drug Enforcement Administration (DEA) agents, Hooks and Oliver agreed to cooperate and proceed with a controlled delivery of the cocaine. They telephoned the defendant and made arrangements to bring the cocaine to the apartment where she was then located. Before delivery, DEA agents applied for and received an anticipatory search warrant for that apartment. With the cocaine still in their duffel bags, Hooks and Oliver went to the apartment under observation of DEA agents. After being admitted and given permission to wait for the defendant, Hooks and Oliver sat down in the living room and placed the duffel bags next to them. Five to 10 minutes later, while Hooks and Oliver were still waiting and before the defendant or anyone else had taken possession of the duffel bags, DEA agents entered and executed the search warrant.
The U. S. Court of Appeals for the Second Circuit upheld the validity of the anticipatory search warrant and concluded as follows:
``The fact that contraband is not `presently located at the place described in the warrant' is immaterial, so long as `there is probable cause to believe that it will be there when the search warrant is executed.' '' (9)
In rejecting the defendant's claim that the agents acted prematurely when they entered and searched the apartment before the cocaine was transferred personally to the defendant, the court stated that the warrant was valid upon delivery of cocaine to the apartment and did not require that anyone take possession prior to execution of the warrant.
Delivery Uncontrolled by the Government
In some cases, anticipatory warrants have been used where officers do not have control over the delivery of evidence to the location to be searched. For example, in United States v. Goff, (10) DEA agents in Seattle developed probable cause to believe that Goff and Jacobson were making a 36-hour round trip to Miami to purchase a large quantity of cocaine. After airline personnel confirmed that the defendants had boarded the nonstop return flight to Seattle, the agents applied for an anticipatory warrant that was issued while the plane was in flight.
In approving the subsequent search that occurred when the defendants disembarked from the plane in Seattle, the U. S. Court of Appeals for the Ninth Circuit held that there was probable cause to believe that the persons searched would arrive within the district in a reasonable time and that the warrant could not be executed until their arrival. The court concluded that issuing a warrant in anticipation of these events created no danger that the property seized would be other than the property sought in the warrant; anticipating future events did not detract from probable cause which must exist at the time of the search. (11)
In another uncontrolled delivery case, Commonwealth v. Reviera, (12) an undercover officer went to a certain address, knocked on the door, and told the defendant who answered the door that he wished to buy one ounce of cocaine. The defendant said he was waiting for delivery, which would occur at approximately 10:00 p.m., and directed the undercover officer to return after 10:00 p.m., at which time he could purchase cocaine for $1,300 per ounce. Several other persons also approached the defendant about buying cocaine and were similarly told to return after 10:00 p.m. Based on these facts and additional informant information, an anticipatory warrant was obtained. The Pennsylvania Superior Court upheld the validity of this anticipatory warrant on the grounds there was a fair probability that contraband and evidence would be found at the particular location to be searched at the time the warrant would be executed.
POTENTIAL CONSTITUTIONAL CHALLENGES
The fourth amendment mandates that all search warrants, including anticipatory warrants, be based on facts establishing probable cause and must particularly describe the place to be searched and the person or things to be seized. The warrant must be issued by a neutral and detached magistrate. Anticipatory warrants can also be challenged on constitutional grounds if the search warrant affidavit lacks adequate facts indicating that the evidence to be seized is on a ``sure course'' to the location to be searched, or if there is inadequate judicial control of the warrant execution.
Evidence on a ``Sure Course'' to Delivery
Although the vast majority of Federal and State courts that have considered anticipatory warrants have approved their use, some courts have required a showing that the contraband or evidence to be seized is on a ``sure course'' to its destination. For example, in United States v. Hendricks, (13) a Customs officer inspected a cardboard box arriving from Brazil, which was addressed to Hendricks in Tucson, Arizona, but shipped in such a manner that Hendricks was required to pick it up personally in Tucson. Inside the box was a suitcase in which the inspector found hidden 5 to 7 pounds of cocaine. The box was sent on to Tucson where it was turned over to the DEA. While holding the box, DEA agents developed additional incriminating evidence and applied for a search warrant to search Hendricks' residence.
The magistrate issuing the warrant knew that the suitcase was then in the DEA's possession and not at the Hendricks residence, and accordingly, inserted a provision in the warrant specifying that it was to be executed only upon the condition that the box is brought to the Hendricks residence. However, since at the time the warrant was issued, Hendricks had not picked up the box, there was no assurance that he would pick it up, or even if he did, that he would ever take the box to the house. Therefore, the court found there was not a sufficient nexus or connection between the box and the residence. The court held that unless the suitcase was on a sure course to the house (as for example in mail addressed to the house), no probable cause would exist to believe it would arrive there. (14)
The ``sure course'' language of Hendricks has been cited with approval by several other courts. (15) To help ensure that a warrant will withstand subsequent attack based on lack of sufficient nexus between the place to be searched and the things to be seized, prudent investigators should attempt to develop facts indicating that the evidence is on a sure and irreversible course to its destination prior to applying for an anticipatory warrant.
Ensuring Adequate Judicial Control of Warrant Execution
The element of time may be highly relevant to the validity of a search warrant and its execution. The reason many courts require traditional search warrants to be executed ``forthwith'' is to ensure that measure of judicial control over the search which the warrant procedure is intended to accomplish. Passage of an undue amount of time between issuance and execution raises the danger that the described property will no longer exist at the premises to be searched. The danger of loss of judicial control might be as great in the case of a warrant issued to take effect some time in the future as in the case of a stale warrant. (16)
An anticipatory warrant is based on a magistrate's determination that sufficient probable cause exists to believe that at some future time (but not presently), certain evidence will be located at a particular place. A potential constitutional problem with such warrants is that the issuing magistrate abdicates to the officers executing the warrant an important judicial function, namely, the determination that probable cause exists to believe that the objects are currently in the place to be searched.
While it is logical to assume that officers will not be disposed to undermine the success of their investigative efforts by the premature execution of an anticipatory warrant, it is nonetheless preferable to deal with time limitations as to execution explicitly in the warrant application process. (17) In that regard, some courts prefer the issuing magistrate to protect against premature execution by defining the circumstances and/or conditions that must be present prior to its execution. (18) For example, the issuing magistrate could delete the forthwith command found preprinted on many warrant forms and insert a directive that execution occur only upon the happening of a specific event, such as delivery of the evidence. This ensures judicial control because if the critical future event never occurs, the warrant may not be executed. (19)
To guard against successful challenges to the validity of anticipatory warrants based on an alleged loss of judicial control in their execution, officers should place reasonable limiting language in their warrant affidavits specifying that execution will not occur in the absence of a particular contingency, such as: 1) A scheduled time for delivery; 2) a given event; 3) police surveillance confirming that the package has been delivered; or 4) a particular method that allows executing officers to know that the items are in the place to be searched. Such language in the affidavit may save an otherwise defective warrant if the magistrate merely fails to include that limiting language in the warrant itself.
CONCLUSION
The anticipatory or prospective search warrant is obtained in advance of the anticipated time for delivery of evidence to the place to be searched so police may promptly execute the search when delivery is made. When police are confronted with the need for quick action, anticipatory warrants provide a practical alternative to proceeding with no warrant and risking suppression of the evidence. If police delay applying for a warrant until the evidence arrives at the place to be searched, they increase the risk that the evidence will be lost before the search can be made. Officers applying for anticipatory warrants should ensure that their search warrant affidavits meet traditional fourth amendment requirements, and also reflect that the items are on a ``sure course'' to the place to be searched. Officers should also include appropriate limiting language in the affidavit to prevent loss of judicial control.
Author's Note
On May 1, 1990, the U.S. Supreme Court sent to Congress proposed amendments to Rule 41(a) of the Federal Rules of Criminal Procedure. The first amendment would permit warrants to search where the person or property is outside the jurisdiction when the warrant is issued, but within the district by the time the warrant is executed. A second amendment would permit the issuance, by Federal magistrates only, of search warrants for property or persons who are within the district when the warrant is issued, but might move outside the district before the warrant is executed.