Timothy P. O'Neill

Time, Place for 'Anticipatory Warrants'

The Fourth Amendment has been around for more than two centuries. You would think that the U.S. Supreme Court would have at least identified all the major search and seizure issues years ago. Yet it was not until 1995 — 204 years after the ratification of the Bill of Rights — that the court finally acknowledged that the ''knock and announcement'' procedure for executing warrants was mandated by the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927 (1995).

The search and seizure doctrine we are discussing today took even longer for the Supreme Court to recognize. It was not until 2006 that the court conceded the validity of the ''anticipatory search warrant.'' An anticipatory search warrant is one that is ''based on a finding that, at some future time, there will be probable cause to believe evidence will be located at a specified place.'' Whitebread and Slobogin, Criminal Procedure, p. 163. But the path of the anticipatory search warrant in Illinois state courts is a tortuous one that is worth examining.

Let's start in 1991 with a United Parcel Service worker who mistakenly opened a next-day air letter addressed to Susan Ross. The worker suspected the letter contained cocaine and proceeded to contact the police. A field test subsequently confirmed the worker's suspicion. The police, working with UPS, then arranged for a controlled delivery to be made to Ross. Prior to the delivery — and, consequently, prior to the possession of the drugs by Ross — the police obtained a search warrant for her house. The complaint for the search warrant asserted that once the contents of the letter had been delivered to the house, then probable cause would exist to conduct a search. A judge approved the warrant.

The letter with the cocaine was then delivered to Ross at her home. Five minutes later the police executed the search warrant and recovered the drugs. She was then charged with unlawful possession. Ross filed a motion to suppress alleging that Illinois law did not recognize the concept of an anticipatory search warrant. Both the trial court and the appellate court agreed with the defendant, and the Illinois Supreme Court granted the state's petition for leave to appeal. People v. Ross, 168 Ill.2d 347 (1995).

The argument centered on the proper interpretation of section 108-3 of the Code of Criminal Procedure. That statute provided, in pertinent part, that a judge may issue a search warrant for the seizure of ''Any instruments, articles or things which have been used in the commission of, or which may constitute evidence of, the offense in connection with which the warrant is issued.'' 725 ILCS 5/108-3(a) (1) (1992).

The Supreme Court held that the language of the statute did not contemplate the issuance of anticipatory search warrants in Illinois. The court stressed that the statutory language was phrased in the past tense, i.e., ''things which have been used'' and ''the offense in connection with which the warrant is issued.'' The court contended that the language assumes that a crime has already been committed. The court also relied on committee comments that indicated that the statute was consistent with an 1898 Illinois Supreme Court case that did not recognize the concept of anticipatory warrants. See Lippman v. People, 175 Ill. 101 (1898).

Ross concluded by suggesting in dictum that anticipatory warrants may well be constitutionally valid. It suggested, therefore, that the General Assembly was always free to amend the statute to make them lawful in Illinois.

The legislature took no time in responding. It amended 108-3 to also allow the seizure of ''instruments, articles, or things designed or intended for use … in the commission of … the offense in connection with which the warrant is issued.'' 725 ILCS 5/108-3(a) (1) (1996).

Defense attorneys responded by arguing that anticipatory search warrants were unconstitutional. The Illinois Supreme Court rejected this challenge in People v. Carlson, 185 Ill.2d 546 (1999). First, the court found that it was reasonable to structure a warrant that could be executed only upon the occurrence of certain conditions. In fact, it found this to be vastly preferable to encouraging police to try to justify warrantless searches through exigent circumstances. Second, Carlson had no problem finding that the probable cause requirement is fulfilled in an anticipatory search warrant. In fact, the court noted that predicating probable cause upon an act that will occur in the future is a better guarantee of probable cause than is the information that supports the typical search warrant, i.e., information regarding the prior location of the items.Interestingly, it was not until 2006 that the U.S. Supreme Court finally agreed. U.S. v. Grubbs, 547 U.S. 90 (2006). The court began by rejecting the contention that anticipatory warrants violate the probable cause requirement since, by definition, probable cause does not exist at the time the warrant is issued. On the contrary, Grubbs notes that in a sense all warrants are ''anticipatory'' since they predict that certain evidence will be there at the time of the search; in fact, subsequent circumstances may cause probable cause to either grow stale or even disappear before that warrant is executed.

Grubbs establishes a framework for evaluating anticipatory search warrant applications. The court held that the magistrate must determine ''(1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.'' At 96 (emphasis in original). But the key is to establish the likelihood that the ''triggering condition'' will occur that will place the sought-after items on the premises. Thus, Grubbs holds that with regards to anticipatory search warrants there are two aspects to probable cause: It must be true that not only if the triggering condition occurs there is a fair probability that that the evidence will be found in a particular place, but there must also be probable cause to believe that the triggering condition will occur. With this understanding, Grubbs held that the concept of an anticipatory search warrant did not violate the Fourth Amendment. In addition, the Court held that the Particularity Clause of the 4th Amendment does not mandate that the ''triggering condition'' actually be included in the warrant itself.

Recently, the 1st District Appellate Court faced an anticipatory warrant issue of first impression in Illinois. People v. Bui, No. 1-05-3880 (March 21). On the one hand it was the usual case of police discovering drugs in a package at a UPS facility and then preparing for a controlled delivery. The difference is that the package was to be delivered to defendant Bui at a business, and the police suspected that the package might not be opened until Bui was at another location. The police therefore placed an electronic signaling device inside the package that would alert them to when the package was actually opened. Additionally, the warrant authorized a search at the business ''and/or any other location that the parcel is accepted into the State of Illinois.''

Bui argued that not specifying a location was a violation of the Particularity Clause. The 1st District disagreed. Citing Grubbs, it noted that the Particularity Clause is only concerned with specifying the place to be searched and the persons or things to be seized. It thus held that the flexibility in the description of the place to be searched did not run afoul of the Fourth Amendment. In doing so, the court held that it hoped to encourage police to obtain warrants; a contrary decision would send a message to the police that they should wait to see where the package is opened and then argue for a warrantless search based on exigent circumstances. The court says this is precisely what courts should not be encouraging.

It sometimes seems that every day brings yet another ''warrant exception.'' Thus, any decision that encourages the police to obtain judicial approval of their actions beforehand should be encouraged. There is definitely a role for the anticipatory search warrant.