Anticipatory Search Warrants: Why Must There Be Probable Cause That the Triggering Condition Will Happen?

In preparation for some upcoming teaching, I’ve been brushing up on anticipatory search warrants. Such warrants authorize a search, but only once a “triggering condition” takes place. The most common scenario involves the controlled delivery of drugs that have been intercepted in transit. The warrant authorizes the search of the destination residence, but only once the drugs have been delivered. Case law establishes that a warrant may issue only if the drugs are on a “sure course” towards delivery. This post asks why – and whether – that should be the case.

The Supreme Court has ruled that anticipatory warrants are permissible. The Supreme Court of the United States approved anticipatory search warrants in United States v. Grubbs, 547 U.S. 90 (2006), a case in which a court issued a warrant authorizing the search of a home upon delivery of a videotape containing child pornography. The Court ruled that such warrants are allowed if (1) there is probable cause to believe that the triggering condition will take place, and (2) there is probable cause to believe that, once the triggering condition takes place, evidence of criminal activity will be present in the location to be searched.

North Carolina law also allows anticipatory warrants. In our appellate division, State v. Smith, 124 N.C. App. 565 (1996), held that anticipatory warrants are permissible under certain conditions. The case set forth the requirements for an anticipatory warrant as follows:

  • The anticipatory warrant must set out, on its face, explicit, clear, and narrowly drawn triggering events which must occur before execution may take place; (2) Those triggering events, from which probable cause arises, must be (a) ascertainable, and (b) preordained, meaning that the property is on a sure and irreversible course to its destination; and finally, (3) No search may occur unless and until the property does, in fact, arrive at that destination.

(Emphasis supplied.)

Why must it be likely that the triggering condition will occur? Both the state and federal authorities agree that the triggering condition must be likely to take place. Grubbs expressed that sentiment in terms of probable cause, while Smith used even stronger language – stating that the triggering condition must be on a “sure and irreversible course.” But why should that be required? No search takes place until the triggering condition does, so why does it matter whether it was likely or unlikely that the triggering condition would be fulfilled?

For example, suppose a child has been kidnapped. The child’s four uncles are the leading suspects as there is bad blood between each of the uncles and the child’s parents. Each uncle lives separately from the others. A member of the family is working as an informant. The informant plans to visit each of the uncles in turn. If the informant sees evidence that the child is present in one of the homes, the informant will send a text message to an investigator. Why shouldn’t the police be able to obtain anticipatory warrants for each of the four homes that only become valid if the informant notifies police that the child is present? In such a scenario, no search takes place of any residence for which probable cause does not exist.

The Grubbs Court defended the sure course rule by arguing that if otherwise, “an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered.” Really? Absent any evidence that the contraband had been ordered by the occupants or that the occupants were suspected of dealing in the type of contraband in question, would the mere fact of a single delivery always provide probable cause? In any event, as Professor Wayne LaFave argues in his treatise Search and Seizure, the Court has already allowed the police to use beepers (and now GPS tracking devices) to track suspects wherever they may go, so authorizing a potential search of “every house in the country” is hardly a red line that can’t be crossed. See Wayne R. LaFave, et al., Search and Seizure § 3.7(c).

Whatever the merits of the “sure course” rule, it is the law. However, its applicability outside the typical situation where government agents are making a controlled delivery of intercepted drugs is unclear. Professor LaFave writes that “it is doubtful whether this . . . requirement applies when neither the government nor a third party [is] involved in delivering the contraband.” And in State v. Stallings, 189 N.C. App. 376 (2008), the court of appeals upheld the issuance of an anticipatory warrant that authorized a search of the defendant’s residence once an informant gave officers a “prearranged signal” indicating that marijuana was present. The court cited the “sure course” rule but upheld the warrant without analyzing the likelihood that the informant would actually find drugs. It seems that the precise scope of the rule is not quite “sure” and “preordained.”