USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 92-1424
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN RICCIARDELLI,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U. S. District Judge]
___________________________
_________________________
Before
Torruella, Selya and Stahl,
Circuit Judges.
______________
_________________________

John H. LaChance, with whom LaChance & Whatley was on brief,

________________
__________________
for appellant.
Robert E. Richardson, Assistant United States Attorney, with

____________________
whom A. John Pappalardo, United
___________________
for appellee.

States Attorney, was

on brief,

_________________________
June 22, 1993
_________________________

SELYA,
SELYA,
Ricciardelli
U.S.C.

Circuit Judge.
Circuit Judge.
______________

was convicted

2252(a)(2) (1988),

knowing

at

Defendant-appellant

a bench
a

receipt through the mails

trial

statute

Steven

of violating

that criminalizes

18

the

of a "visual depiction [that]

involves the use of a minor engaging in sexually explicit conduct

.

. .

."

Ricciardelli appeals,

court erred in denying

contending that

his motion to suppress

the district

evidence obtained

pursuant

to the execution of an anticipatory search warrant.

conclude

that, although

proscribe
employed

the use
here

was

of

the

Constitution

such anticipatory

constitutionally

does not

altogether

warrants, the

infirm.

We,

We

warrant

therefore,

reverse.
I.
I.

BACKGROUND
BACKGROUND
In 1988,

child

Houston police breathed life

pornography

investigation

inspectors a customer

by

list unearthed

suspected pornography distributor.

the

list.

The

postal

in

Tex

Appellant's

name appeared on

subsequently

operation.

postal

probe of

spawned

Globe-Tex Specialties, and

sting

correspondence elicited

federal

during a 1975

inspectors

fictitious "front" company,

Ricciardelli

giving

into a moribund

targeted

After

preliminary

interest on Ricciardelli's

part, Globe-

sent him a catalog from which he ordered several videotapes.

Globe-Tex

notified

him

that

only

one

tape

was

immediately

available and promised to mail it forthwith.

On the day prior to the
inspectors applied for,

scheduled delivery, the postal

and a magistrate judge issued,

a search

warrant.

The

warrant

authorized the

investigators to

search

appellant's residence for, inter alia, correspondence, documents,

_____ ____
and

objects related

to

contacts with

either Globe-Tex

or the

Houston pornography

dealer.

warrant would "not be

and

receipt by

By its

express terms, the

effective until after delivery by

Steven

L. Ricciardelli

of

the .

. .

search

mail to

package

containing the videotape."

The day after the warrant was issued, postal inspectors

gave

the package

office

containing

for delivery.

the videotape

the

package

Following standard

the local

return receipt, affixed

required that appellant sign for it.

deliver

to

that

day

to the parcel,

The letter carrier tried to

but

practice, the

post

appellant

postman left

was

not

home.

a notice on

premises indicating that appellant could collect the

the

item at the

post office.

That afternoon, appellant retrieved the package and

returned

his

to

home.

About thirty

inspectors executed the

correspondence, and

minutes

later,

postal

warrant, recovering the videotape,

a number

of other

films and

some

magazines not

mentioned in the warrant.

Appellant was indicted.
denied

his motion

dwelling.

to

The district

suppress the

Subsequently, appellant

materials

his

the pertinent

This appeal ensued.

ANALYSIS
ANALYSIS
We

first

seized from

stipulated to

facts and the judge found him guilty.

II.
II.

court summarily

discuss

divide our analysis of this case into segments.

the

constitutionality
3

of

anticipatory

We

search

warrants

as

general matter.

discussing certain
by

that

then

turn to

alleged deficiencies in the

the postal inspectors.

contentions

We

specifics,

warrant obtained

We end by addressing the government's

appellant's submissiveness

and/or

the postal

inspectors' good faith palliated any defects in the warrant.

A.
A.
At the
he

asks us to

are

per
___

se
__

Anticipatory Search Warrants.

Anticipatory Search Warrants.
____________________________
outset, appellant

rule that so-called

unconstitutional.

seeks to bowl

a ten-strike:

anticipatory search warrants

This

initiative

presents

question of first impression in this circuit.1

Anticipatory
in transit.

peculiar to property

Such warrants provide a solution

has long vexed

hand,

search warrants are

law enforcement

agencies:

to a dilemma that

whether,

on the

one

to allow the delivery of contraband to be completed before

obtaining

dispersement
other hand,

search warrant,

thus

of

the ensuing

evidence in

seizing

the contraband

risking

on

the destruction
interval, or,

its arrival

or

on the

without

warrant,

thus

warrants

that are issued in advance of the receipt of particular

property

at the premises designated

____________________

suppression.

risking

Anticipatory warrants

in the warrant2

strike a

1We cannot escape this issue for, if anticipatory search

warrants are valid at all, the rules pertaining to their issuance
will necessarily determine the legal sufficiency of the warrant
obtained in this case.

2To be sure, an anticipatory warrant can be directed toward

the search of a person instead of a place.
For ease in
reference, however, we speak throughout this opinion of searches
of places rather than of persons (although we note that the same
principles apply in either case).
4

third

chord,

judicial

protecting

approval

of

satisfying legitimate
v.

privacy rights
planned

by

search

requiring

while

law enforcement needs.

Garcia, 882 F.2d 699,

______

703 (2d Cir.),

advance

simultaneously

See United States

___ _____________

cert. denied, 493 U.S.

_____ ______

943 (1989); see also 2 Wayne LaFave, Search and Seizure

___ ____
__________________

3.7(c),

at 97 (1987).
Appellant's
anticipatory
Amendment.
obvious

constitutional challenge

warrants proceeds
His

that

theory

the aegis

is epibolic.

a warrant

probable cause," U.S. Const.

requiring probable

under

can

First, he

issue only

Amend. IV

cause to believe

to

"upon

the
of the

of

Fourth

remarks

the

a showing

of

and interprets

that the

use

this as

contraband to

be

seized

is in

issues.

the place

to be

searched at

the time

a warrant

He then erects a second proposition on this problematic

pedestal,

professing

that

magistrate

can

have

no

constitutionally sufficient basis for issuing a warrant at a time

when the contraband is
does not exist.

elsewhere and, presumably, probable cause

In our view, appellant's theory misconstrues the

meaning of probable cause.

The probable

cause doctrine does not

require that the

contraband to be seized must presently be located at the premises

to be searched, only that there is probable cause to believe that

a crime

has been (or is being) committed and that evidence of it

can likely
search.
______

be found at

the described locus

See United States v. Aguirre, 839

___ _____________
_______

Cir. 1987).

at the time
__ ___ ____

of the
__ ___

F.2d 854, 857-58 (1st

"Probability is the touchstone [of probable cause] .

5

. . ."

United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.

_____________
________

1987) (collecting cases).

current location creates
same

location when

In the stereotypical
a probability

the search

case, an item's

that it will

is executed

be at

but there

the

are no

guarantees.

The suspect

before the warrant

might move

is executed.

or destroy

the contraband

Nevertheless, so

requisite probability exists, the

___________

long as

possibility that things

___________

go awry does not forestall the issuance of a warrant.

"[p]robable

cause

reasonable doubt."
1305-06

need not

be

tantamount

United States
______________

might

After all,

to proof

v. Hoffman,
_______

the

beyond

832 F.2d

1299,

(1st Cir. 1987); accord Illinois v. Gates, 462 U.S. 213,

______ ________
_____

238 (1983) (requiring "a

fair probability that contraband .

. .

will be found in a particular place"); United States v. Caggiano,

_____________
________
899 F.2d 99, 102 (1st Cir. 1990) (collecting cases).
Seen from this perspective,

it is difficult to discern

the constitutional objection to an anticipatory warrant.

In many

cases, the facts put forward in support of an anticipatory search

warrant predicated
particular

location

contraband will
will be
nearly

on the

planned delivery

establish

be found there at the

contemporaneous with the

so)

conventional

than do
search

facts

put

warrant

location of

contraband at the

the

of

method

greater

the

Fourth

of contraband
likelihood

that the

time of the search (which

arrival of the
forward in

predicated

on

contraband, or

support
the

of

a more

known

recent

proposed search site.

Amendment

to a

inserting

Moreover,
a

neutral,

detached judicial officer as a buffer between a citizen's privacy

6

rights and
well

in

potential government overreaching

connection

with

instance, contemporary

or anticipatory,

magistrate's inquiry is
that the
time of
the

anticipatory

In

either

the focal point

of the

the place to be

the contemplated intrusion.

has

warrants.

whether there is probable cause to think

contraband will be at

intrusion

works equally as

not

yet

searched at the

That the

occurred

does

event justifying
not

distort

the

decisionmaking process.

Rather, the magistrate must simply widen

his

into account

horizons

triggering

to

event

take

will occur

on

the

likelihood

schedule and

as

that

the

predicted in

making his probable cause determination.3

Mindful
unsurprising that

of

these

every circuit

has held that anticipatory

unconstitutional.
F.2d 946, 950

See,
___

36 (4th

we

to have addressed

find

it

the question

search warrants are not categorically

e.g., United States v.
____ ______________

(8th Cir. 1993); United States v.

_____________

969, 974-75 (5th Cir.

33,

considerations,

Tagbering, 985
_________

Wylie, 919 F.2d

_____

1990); United States v. Goodwin,

_____________
_______

Cir. 1988); United States v. Goff,

______________
____

1240 (9th Cir. 1982); United States

_____________

854 F.2d

681 F.2d 1238,

v. Lowe, 575 F.2d 1193, 1194

____

(6th Cir.), cert. denied,

_____ ______

439 U.S. 869 (1978); United States ex

_________________

____________________

3This is not very different than a magistrate issuing a

warrant
for a wiretap
a warrant which, in actuality,
contemplates a "seizure" of specific oral communications which,
by definition, do not exist at the time of the warrant's
issuance.
Such a warrant can appropriately be viewed as an
anticipatory warrant for the seizure of words:
the magistrate
issues the warrant on the basis of a substantial probability that
crime-related conversations will ensue.
Clearly, such warrants
are permitted under the Fourth Amendment. See Katz v. United
___ ____
______
States, 389 U.S. 347, 354-55 (1967); Berger v. New York, 388 U.S.
______
______
________
41, 63 (1967).
7

rel. Beal v. Skaff,

__________
_____

418 F.2d 430,

also United States

____ _____________

v. Nixon,
_____

1990)

We, too,

(dictum).

432-33 (7th Cir.

918 F.2d 895,

believe

that

903 n.6 (11th

there

is no

Amendment infirmity indigenous to anticipatory search

although

such warrants must,

of course, be

1969); see
___

Cir.

Fourth

warrants

issued under proper

circumstances, upon a proper showing, and with proper safeguards.

We hold, therefore, that
magistrate
delivery of

reliable,

when law enforcement personnel

independent

contraband will

evidence

very likely

indicating

occur at

offer a
that

a particular

place, and when the magistrate conditions the warrant's execution

for the search

of that place on

not

or

overbroad

muster.
be

otherwise

That the

searched

at

that delivery, the warrant,

defective,

passes

if

constitutional

contraband has not yet reached the premises to

the

time

the

warrant

issues

is

not,

in

constitutional terms, an insuperable obstacle.

B.
B.
Appellant
warrants are
circumstances
where
if

Exigent Circumstances.
Exigent Circumstances.
_____________________

next

suggests

not invalid per se,

___ __

that,

even

if anticipatory

their use must

be confined to

in which time is of the essence, e.g., drug cases,

____

a significant danger lurks that the evidence might be lost

the search

contraband's
circumstances
present

is not

made in

delivery.

close temporal proximity

We disagree:

the

absence

to the

of exigent

and the government readily concedes that none are

here

does not

outlaw

the

use

of an

anticipatory

warrant.
We

need

not

linger.

The
8

Eighth

Circuit

recently

rejected this
that

the

precise argument.

presence

or

In Tagbering,
_________

absence

of

exigent

irrelevant in determining whether an

should issue.
view.

circumstances

Where the probable

We share this

cause requirement for an

anticipatory

fulfilled, there is no necessity

independent showing of exigent

is

anticipatory search warrant

See Tagbering, 985 F.2d at 950 n.6.

___ _________

search warrant has been

v.

the court stated

circumstances.

for an

Cf. United States

___ _____________

Panitz, 907 F.2d 1267, 1270 (1st Cir. 1990) (reiterating that
______

where

vehicle

search

is supported

by

probable

cause,

no

exigency need exist to justify warrantless search).

The

logic

behind

this

conclusion

is

inescapable.4

Probable cause is probable cause; the justification for

does not vanish
the

merely because the

evidence could have

method.

United States
______________

v. LaFrance,
________

also United States v.

____ ______________

879 F.2d

the

authorities

1,

Rabinowitz, 339
__________

often

be

more familiar

4-5 (1st

Cir. 1989);

(1st Cir. 1985);

U.S. 56,

66 (1950)

it is reasonable to procure a

whether the search was

might

that

U.S. 478, 484 (1985);

F.2d 860, 865-66

("The relevant test is not whether

search warrant, but

through a

v. Johns, 469
_____

United States v. McHugh, 769

______________
______
see
___

circumstances are such

been obtained

See United States

___ _____________

a search

better

reasonable.").
positioned

in

That

child

____________________
4Indeed, as both Tagbering and Panitz point

out, if exigent

_________
______
circumstances exist, there is, by definition, no need for any
kind of search warrant.
See Tagbering, 985 F.2d at 950 n.6;
___ _________
Panitz, 907 F.2d at 1270 & n.3. The other side of the coin is
______
equally revealing:
exigent circumstances will rarely, if ever,
be present in child pornography cases, as history teaches that
collectors prefer not to dispose of their dross, typically
retaining obscene materials for years.
9

pornography investigations than in

a conventional search warrant

drug investigations to obtain

does not cheapen the value

magistrate's initial probable cause determination

not dispositive of any relevant issue."
n.3.

Consequently, we hold that an

of the

and, thus, "is

Panitz, 907 F.2d at 1271

______

otherwise valid anticipatory

warrant does not fail merely because the officers might have lost
nothing by waiting until

the delivery had been

completed before

obtaining a warrant.
C.
C.
We
the

warrant

sufficient

Definiteness.
Definiteness.
____________

now reach the crux

fatally defective
link between

the

of the suppression
because

arrival of

proposed search of appellant's abode?

it

issue:

failed to

the videotape

forge

Was

and the

We think that it was.

Although
constitutionally
conditioned
above

on

anticipatory
foreclosed, see
___

a future

search
supra
_____

warrants
Part

event presents

are

II(A), a

a potential

not

warrant

for abuse

and beyond that which exists in more traditional settings:

inevitably,

the executing

when and whether

has actually

agents are

called upon

the triggering event

occurred.

to determine

specified in the

Consequently, magistrates

who are asked

to issue such warrants must be particularly vigilant

that the

opportunities for exercising unfettered

eliminated.

To satisfy these

warrant

in ensuring

discretion are

concerns, the magistrate must

set

conditions governing an anticipatory warrant

that are "explicit,

clear,

misunderstanding or

and

manipulation

narrowly drawn

so as

by government agents."

to avoid

Garcia, 882 F.2d at 703-04;

______

10

accord Tagbering, 985 F.2d at 950.

______ _________
There
anticipatory
agents.

are

warrants

First,

two

particular

must limit

the magistrate must

dimensions

the discretion

in

which

of government

ensure that the

triggering

event is both ascertainable and preordained.

restrict the officers' discretion

The warrant should

in detecting the occurrence of

the event to almost ministerial proportions,

party's
then,

discretion in locating the

Second,

irreversible course
destination

courts have found

See,
___

e.g.,
____

Nixon,
_____

the contraband must

to its destination,

must

contraband's arrival
of

place to be

searched.

Only

in the prototypical case, are the ends of explicitness and

clarity served.

the

similar to a search

be on a

and a future

be

made expressly

there.

Under such

contingent

F.2d

at

903

search of
upon

the

circumstances, a number

anticipatory search warrants

918

sure and

n.6;

to be valid.

United States
______________

v.

Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988), cert. denied, 490
_________
_____ ______

U.S. 1005 (1989); Goodwin, 854 F.2d at 36; United States v. Hale,
_______
_____________
____
784 F.2d 1465,

1468-69 (9th

(1986);

681

Goff,
____

F.2d

Cir.), cert. denied,

_____ ______

at

1240.

irreversible course" standard as a

We

adopt

479 U.S.
the

"sure

829

and

means of judging the validity

of anticipatory warrants.
It

is at this juncture,

with the government.

proxy

sure course standard

for the actual presence of the

be searched.
that

The

however, that we part company

It offers the

the contraband,

functions as

contraband at the locus to

magistrate a trustworthy

though not
11

yet on

the site,

assurance

will almost

certainly

be located

there

at the

time

fulfilling the requirement of future

Hale, 784 F.2d at
____
that was to
sure

search,

probable cause.

1468 (finding a warrant for

be delivered to

course to its

of the

See, e.g.,
___ ____

child pornography

defendant at his home

destination" and,

thus

to be "on

hence, valid);

Goff, 681
____

F.2d at 1240 (finding the requirement met where defendant boarded

an airplane and agents then
the flight's terminus).

procured a warrant to search

Implicit

in

recognition that the evidence must

so that

the event

on which the

definite relationship to
moreover,

standard

is

the

be on an ascertainable course
warrant is conditioned

the premises

imperative that

this

him at

to be searched.

the warrant

establish not

bears a
It

is,

only this

kind of tri-cornered nexus between the criminal act, the evidence

to

be seized, and

nexus incorporate
interests
upon

a temporal

protected by

the magistrate to

and narrowly
that

the place to

dimension.

the Fourth

is

The

execution to ensure

actually exist if

Phrased another

it incumbent

with explicit, clear,

drawn conditions governing its

executed.

also that the

important privacy

Amendment make

craft the warrant

the anticipated nexus will

warrant

be searched, but

way,

the

and when the

event

that

triggers the search must be the delivery of the contraband to the

______

premises to be searched, thereby leaving as little as possible to

_______________________
the discretion of the agent executing the warrant.
supra
_____

3.7(d), at 101-02.
The instant warrant imposed no such

To

See 2 LaFave,
___

the contrary, it overlooked

strict conditions.

(or, at least,

did not address)

12

the need for

establishing a nexus

and the place

search

his

search was

Thus,

searched.

not of appellant's person

relating to
The

to be

dealings with
to be

between the triggering

Here,

the warrant authorized

but of his

home, for evidence

child pornography

triggered by

event

delivery of

distributors.

the videotape.

the very premise on which

the warrant rested was that the

videotape's arrival would signal

the existence of probable cause

to believe that evidence of

well as

evidence of

a crime

the videotape itself

criminal predisposition or

activity was likely located in the dwelling.

however, completely

ignored

this connection,

as

other nefarious

The warrant's text,

conditioning

the

search not

on the arrival

searched,

but, rather,

videotape,
prize.

of the videotape

on appellant's

wherever he might be

at the place

personal receipt

and wherever he

to be

of the

might take his

By the terms of the warrant, once appellant retrieved the

package

at

searched

the post

his

abode

office, the

postal inspectors

whether

not

or

appellant

could have
brought

the

contraband there.

An anticipatory search warrant that cedes such

great

to

discretion

the

executing

agents

cannot

withstand

constitutional scrutiny.
In
1985),

United States v. Hendricks, 743

_____________
_________

cert. denied,
_____ ______

470 U.S.

grappled with an almost

the

validity

containing

of

the

Ninth Circuit

identical nexus problem when considering

an anticipatory

contraband

defendant to pick

1006 (1986),

F.2d 653 (9th Cir.

was

warrant.

shipped

in

There,
way

a package

that

up the package personally, rather

required

than merely

13

having it delivered to
the
Ninth

his home.

contraband actually
Circuit invalidated

See
___

arrived at
the

id. at 653.
___

Even

though

defendant's residence,

warrant on

the

ground that

the

it

failed to forge the requisite link between the described premises

and the
that,

illegal activity.
although the

searched,

warrant

the premises.
The
respects.5

listed a

The court reasoned

specific

location to

be

case

at

conditions governing

broadly drawn in

Hendricks,
_________

parallels Hendricks
_________

anywhere.

the execution

extremely susceptible

executing officers.

on a sure

hand

as in Hendricks, the
_________

been taken

were

out a future connection between

it and

See id. at 654-55.

___ ___

Here,

have

warrant

id. at 655.
___

once the box was picked up any number of circumstances

might intervene to snuff

could

See
___

Here,

even

as in

though

Hendricks, the
_________

the anticipatory

to

the

defendant

the

was too

the contraband was

premises to be searched.
the

search

discretion of

as in Hendricks, the warrant

_________

that it did not ensure that

course to the

important

package, once retrieved,

Here,
of

in

happened

Here, as
to

take

in

the

contraband home, the warrant did not establish an adequate threeway

nexus between

the

seized, and the premises.

criminal activity,

the

evidence to

be

It follows inexorably that here, as in

Hendricks, the search warrant was invalid.

_________
Nor can we read

the warrant as treating the

search of

____________________
5To be sure, the case at hand differs

from Hendricks in the

_________

respect that, here, the authorities made an abortive attempt to

deliver the package directly to the defendant's residence. We do
not consider this distinction to possess decretory significance.
14

appellant's

abode as an event

videotape.

separate from his

The affidavit supporting the warrant bases the postal

inspector's

conclusions anent

probable

cause upon

future receipt of the videotape at his home.

the triggering condition of
at

home

appellant

receipt of the

that eliminates
was a

runner

appellant's

What is more, it is

appellant's receipt of the videotape

alternative

for some

internuncio,

thereby producing

appellant is

a collector of

possibilities, say,

other

person, or

probable cause

simply

to believe

child pornography and,

that

an

that

hence, that

his residence likely contains evidence of his criminality.

See,
___

e.g., id. at 654 (invalidating warrant where triggering event was

____ ___
not

certain

and

independent

Therefore, unless the search

probable cause

did

can be saved on some

not

exist).

other theory,

an inquiry to which we now turn, the fruits of the search must be

suppressed.6
D.
D.

Consent.
Consent.
_______

The government asseverates

search warrant
the

was assuaged

that any

infirmity in

by appellant's supposed

postal inspectors' seizure of the videotape.

the

consent to

We reject this

____________________

6Our concurring brother takes the view that the warrant

cannot stand because it was based in part on stale information.
See, e.g., United States v. Bucuvalas, 970 F.2d 937, 940 (1st
___ ____ ______________
_________
Cir. 1992) (discussing criteria for reliability of information on
which probable cause determination is based), cert. denied, 113
_____ ______
S. Ct. 1382 (1993).
We find this proposition troubling, as it
overlooks the
undeniable fact that, in
addition to what
transpired in the past, the affidavit also contains ample "nonstale" information concerning appellant's ordering of illicit
materials from Globe-Tex shortly before the search warrant
issued.
In any event, given our conclusion that the warrant is
void for indefiniteness, we need not resolve the staleness
question.
15

asseveration
discloses

on three grounds.

no

consented to a
consent,
been

finding
seizure.

a court could not

voluntary

in

inspectors' execution
States

by

the

the

In the first
district

Second, even if

court

that

appellant

appellant voiced

plausibly find such

atmosphere

place, the record

created

of the invalid warrant.

his

consent to have
by

the

postal

See, e.g., United

___ ____ ______

v. Maragh, 894 F.2d 415, 419-20 (D.C. Cir.) (finding that

______

______

consent does
U.S. 880
50-51

not cure

an unlawful seizure),

(1990); see also United States

___ ____ _____________
(1st

Cir.

1989)

cert. denied,
_____ ______

498

v. Twomey, 884 F.2d 46,

______

(identifying

criteria

helpful

in

determining voluntariness of consent), cert. denied, 496 U.S. 908

_____ ______
(1990).

Once appellant

that the search warrant

must

be viewed as

was led down the garden

path, persuaded

was unimpugnable, his subsequent consent

merely an

accommodation to

the authorities.

See Florida v. Royer, 460 U.S. 491, 497 (1983); Lo-Ji Sales, Inc.
___ _______
_____
_________________
v. New York, 442 U.S. 319, 329 (1979).
________
issue

is

academic

videotape was within

provided for the
Specialties).
an

because,

as the

At any

government

the perimeter of the

seizure of all

rate, the consent

concedes,

the

search warrant (which

"objects" related to

Globe-Tex

Inasmuch as the videotape is an immediate fruit of

invalid search warrant, it must be suppressed.7

See Illinois
___ ________

v. Rodriguez, 110 S. Ct. 2793, 2799 (1990).

_________
____________________

7We need not consider the effect of appellant's alleged

consent on the suppression of magazines and other detritus not
encompassed by the search warrant.
The short, conclusive answer
in regard to such items is that the government did not seek to
use them against appellant or introduce them into evidence at the
trial.
Any controversy anent such items is, therefore, moot.
See, e.g., Smith v. INS, 585 F.2d 600, 602 (3d Cir. 1978).
___ ____ _____
___
16

E.
E.

Good Faith.
Good Faith.
__________

The government strains to persuade us that, even if the

warrant self-destructs,
Ricciardelli under
rule.

the evidence seized can

the good faith exception

be used against

to the exclusionary

We are not convinced.

In United States v.
______________

Leon, 468
____

U.S.

897 (1984),

the

Supreme Court explained that the exclusionary rule is a deterrent

measure designed to ensure

compliance with the Fourth Amendment.

See id. at 906.

___ ___

believed that there would often be no

The Court

deterrence when police

obtain evidence in

reliance on a

search

warrant that is subsequently found to be defective; "in most such

cases,
Id.
___

there is no police illegality and thus nothing to deter."

at 921.

conditions
"cannot

Hence,

exclusion of

serves no

logically

salutary
contribute

Amendment violations."

seized evidence

purpose

because

to

deterrence

the

under those

that

sanction
of

Fourth

Id.
___

Although weakening the exclusionary rule, the Court did

not defenestrate it.

The Justices acknowledged that suppression

would

be

continue

to

appropriate

in

situations

where,

notwithstanding the

issuance of a warrant,

"the law enforcement

officer had knowledge, or may properly be charged with knowledge,

that the search was unconstitutional under the Fourth Amendment."

Id. at 919.
___

Thus, to cite

proper where

the "warrant

two instances, suppression would

[is] .

. .

be

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

17

reasonably presume it to be valid," or the warrant is "so lacking

in indicia of probable
existence

entirely

internal quotation
defectiveness
Massachusetts
_____________
bevues

by

cause as to render official belief in its

unreasonable."
marks omitted).

results

from

v. Sheppard,
________

the magistrate

468
not

mere

Id.
___

at

923 (citation

If, however,

the warrant's

technical

U.S. 981,

errors,

984, 990-92

readily evident

and

to

see
___

(1984),

a competent

officer, see United States v. Bonner, 808 F.2d 864, 867 (1st Cir.
___ _____________
______
1986)

(suggesting that

exclusion of

evidence is

inappropriate

where the magistrate, as opposed to the officers, is

for

responsible

a defective warrant), cert. denied, 481 U.S. 1006 (1987), or

_____ ______

borderline calls about the existence of probable cause, see Leon,

___ ____
468

U.S. at 926 (favoring

warrant is

based on "evidence sufficient

among thoughtful
probable

non-exclusion in situations where the

and competent

cause"),

then the

judges as

evidence may

to create disagreement
to

the existence

be used,

of

despite the

warrant's defectiveness.
To summarize,

the exclusionary rule is

alive and well

to the extent that a warrant's defectiveness results from

(1)

non-technical errors

of a

kind that

a reasonably

either

prudent

officer would (or should) have recognized, or (2) law enforcement

officers' acts or omissions
officer would

have avoided.

(explaining that

of a kind that a

reasonably prudent

See 1 LaFave, supra

___
_____

searching officer's erroneous

Fourth Amendment limits on his power

case for exclusion).
18

1.2(d), at 38

understanding of

still presents a compelling

After Leon, how does a court tell whether a defect in a

____
warrant is
should

fatal?

have

In

known

magistrate's

determining whether a
that

authorization,

search

was

court

must

reasonable officer
illegal

despite

evaluate

all

the

attendant circumstances, see Leon, 468 U.S. at 922 n.23; Earle v.

___ ____
_____
Benoit,
______

850 F.2d 836, 848 (1st

Leon requires not

____

Cir. 1988), keeping in mind that

merely good faith,

but objective good

faith.

See United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989).
___ _____________
_____

And

when, as now, a government agent asserts good faith reliance on a

magistrate's decision to

issue a warrant,

the court must

focus

upon the existence vel non of objective good faith at the time of
___ ___
the warrant application.

See
___

Malley v. Briggs,
______
______

475 U.S.

335,

344-45 (1986); Earle, 850 F.2d at 848.

_____

Here, the government fails both parts of the good faith

test.

After studying the record on appeal, we conclude that the

warrant,

as

issued,

contained

observable to experienced
the

inspectors'

constituted

distinguishing this
seized

under the

defects

readily

postal inspectors and, moreover,

omissions
second,

non-technical

in the

warrant-application

independently

case from

Leon.
____

sufficient
Accordingly,

anticipatory warrant

that

process

ground

for

the evidence

and introduced

at trial

should have been suppressed.

In connection

with

the first

prong of

the test,

we

find, without serious question, that the defects on the warrant's

face were apparent enough that the
realized

postal inspectors should have

that it did not comport with the Fourth Amendment.

The

19

law was settled

anticipatory
drawn.

that the conditions

warrants

The

instant

must

governing the execution

be explicit,

warrant

plainly

clear,
did

and

of

narrowly

not satisfy

these

criteria; and, furthermore, the principal omission in the warrant

the lack
premises

of any requirement that the contraband

was both glaring

arrive at the

and easily correctable.

Examining

the postal inspectors' actions in this light, it is crystal clear

that they

could,

and

should,

condition the search of

videotape
recognize

there; failing
the

objectively
attempting to

execute an

asked

the

magistrate

appellant's home on the delivery

both to insert

consequences

unreasonable

have

of

its

conduct.

It

this condition
omission
follows,

to

of the

and to

constituted
then,

anticipatory search warrant

that

bereft of

such a limiting condition fell "outside the range of professional

competence

expected" of

federal agents.8

Malley, 475
______

U.S. at

346 n.9; see

___
1473 (9th

Cir. 1986)

did not give

States
______

also United States v. Washington,

____ ______________
__________

v.

rise to
Crozier,
_______

(concluding that

(ruling that "patently

objective good faith
777

F.2d

1376,

overbreadth in

797 F.2d

1461,

overbroad" warrant
under Leon);
____

1382

(9th

a search warrant

Cir.

United
______

1985)

comprised "no

mere technical error").

____________________

8While the standard is one of objective reasonableness, we

note that the postal inspectors who orchestrated this operation
were veterans of the government's war against child pornography.
In the affidavit accompanying the application for the search
warrant, one of the postal inspectors stated that he had "been
involved in approximately 300 child pornography and child sexual
exploitation investigations" and had "personally been involved in
the execution of at least 75 search warrants . . . relative to
child sexual exploitation investigations."
20

Although
itself sufficient
that

other

the failure

omissions

not trespass

Amendment

correct

to support suppression
attributable

independently, have required the

may

to

beyond

procedures and

evident defects

here, it is
to

the

same result.

the bounds
then attempt

is

also true

agents

would,

Government agents

of well-delineated
to blunt the

Fourth

effects of

their

pererrations by foisting the blame on the magistrate.

Malley, 475
______

U.S. at 346

n.9; United States v. Baker,

______________
_____

1144,

(10th

1990).

1148

especial

force

where,

culminating

in

government

knew

produced

the

inspectors
with

Cir.

as

in

sting

from start

They

principle
case,

delivery,

indeed,

failed to share

the magistrate.

this

controlled

the plot;

This

to

it

See
___

894 F.2d

applies

with

sting operation,

is

involved.

The

invented Globe-Tex

finish.

Yet, the

and

postal

the full script

of their stage-play

cannot now fault

the magistrate for

their bad reviews.

In

this respect,

the case

at

bar is

reminiscent of

United States v. Fuccillo, 808 F.2d 173 (1st Cir.), cert. denied,
_____________
________
_____ ______
482 U.S.

905 (1987).

exception

would not

warrant did

In

Fuccillo, we held that

________

salvage

a search

not sufficiently describe

where,

the good faith

inter alia,
_____ ____

the things to

the

be seized,

because the officer possessed facts which should have enabled him
to describe the property
177,

to be seized

more accurately.

Id.
___

at

178 (stating that the warrant "could have been written with

precision to assure that

appellee's personal rights would remain

inviolate" and that "the agents were reckless in not including in

21

the affidavit information which was known or easily accessible to

them").

Where the omission of a key ingredient, known to the law

enforcement officers, leads to the subsequent invalidation of the

warrant,

the government faces a

high hurdle in

seeking to show

objective good faith.

When
rely

issuing

anticipatory warrants,

to a large extent on the

magistrates must

expertise of federal agents as to

the certainty that the triggering event will occur.

where,

as in

search

and seize, magistrates can only act to ensure respect for

the Fourth

this case,

the agents

Particularly

Amendment's protections if

plan's discretionary elements.

were

responsible for

possible

outcomes

package to
have

home

in

their

they are informed

to the

scheme to

magistrate the
deliver

In particular, the

magistrate

plans to

of the

Thus, the postal inspectors here

conveying

Ricciardelli.

apprised the

chance

preset elaborate

of

the

various

Globe-Tex

inspectors should

the (apparently

significant)

that the package would not be delivered to Ricciardelli's

at

all

envisioned.9

possibility

they

undeniably

Fully informed, the magistrate might

more finely tuned warrant.

592, 603

that

(2d Cir.

had

have drawn a

See Rivera v. United States, 928 F.2d

___ ______
_____________

1991); see
___

also Fuccillo,
____ ________

808

F.2d at

178

(warning that, in applying for a warrant, agents must "take every

____________________

9At the suppression hearing, Inspector Dunn, whose affidavit

supported the search warrant, testified that the inspectors' plan
to
execute
the
search
warrant
"[d]epend[ed]
on
what
[Ricciardelli] did after he picked it up."
His affidavit,
however, did not disclose to the magistrate the variety of
possible outcomes or the inspectors' contingency plans.
22

step that could reasonably be expected of them").

In

fine, the Leon doctrine does not apply in this case

____

both because a reasonably prudent officer should have

known that

the procured warrant was substantially defective on its face, and

because
the

the defect was largely,

officers' incomplete

circumstances, the
save the day.

the magistrate.10

CONCLUSION
CONCLUSION

In the

way

Suppression of the

the invalid warrant

for the constitutional

available

disregard it."

the result of

magistrate's imprimatur on the warrant cannot

by means of

"to compel respect

III.
III.

account to

The exclusionary rule obtains.

evidence seized

effectively

if not entirely,

by

is appropriate

guaranty in the

removing

the

incentive

Mapp v. Ohio, 367 U.S. 643, 656 (1961).

____
____

only

to

We

need

go

no

further.11

Although

anticipatory

____________________
10Although
analysis or the

the point is
outcome here,

not instrumental to either the

we note that the Leon exception
____
does not absolve government officers from every mistake made in
good faith during the execution of a warrant.
See, Leon, 468
___
____
U.S. at 920; see also United States v. Strand, 761 F.2d 449, 456___ ____ _____________
______
57 (8th Cir. 1985) (holding Leon inapplicable to seizures outside
____
the scope of a warrant). For instance, Leon's good faith rule
____
would not excuse full-blown mistakes in the execution of a
warrant. See, e.g., Maryland v. Garrison, 480 U.S. 79, 89 n.14
___ ____ ________
________
(1987) (explaining that, when "police begin to execute the
warrant and . . . discover [a] factual mistake[, they] must
reasonably limit their search accordingly").
Hence, if a
situation arises in which officers wrongly conclude that the
triggering event needed to animate an anticipatory warrant has
occurred, and proceed to execute a full search in the face of
this mistake, we would not review that mistake under Leon's good
____
faith standard.

11After this appeal was fully briefed, but before oral

argument, the Ninth Circuit struck down the Protection of
Children Against Sexual Exploitation Act, 18 U.S.C.
2251-2255
(1988), of which section 2252(a)(2) is a part, on constitutional
grounds. See United States v. X-citement Video, Inc., 982 F.2d
___ ______________
______________________
23

search warrants are constitutionally

in this case suffered

allowable, the warrant used

from a fatal defect that was neither cured

by any enforceable consent nor subject to amelioration

Leon doctrine.
____

Accordingly, appellant's motion

under the

to suppress the

fruits
of the search should have been granted.

Appellant's conviction is vacated and the district

Appellant's conviction is vacated and the district
_______________________________________________________
court's denial of appellant's motion to suppress is reversed.
court's denial of appellant's motion to suppress is reversed.
____________________________________________________________

Concurring Opinion Follows

____________________

1285, 1292 (9th Cir. 1992). This issue was neither briefed nor
argued before us.
Hence, we take no view of the statute's

constitutionality.
24

TORRUELLA,
agree

that

Circuit Judge
_____________

(Concurring).

appellant's conviction
the

be

serious

reservations

result.

The majority unnecessarily addresses

validity of

about

should
majority's

Although

vacated, I
approach

to

have

that

the constitutional

anticipatory search warrants and,

having done that,

resolves the issue incorrectly.

I begin by describing
most similar

to those of the

warrant in this
I

majority.

We both

case was utterly unsupported

views are

agree that the

by probable cause.

find, however, that the warrant was tainted by information too

stale to carry
cause.
the

the areas in which my

the crisp reliability necessary

While the majority contentedly

case, ante
____

at 15 n.6,

I believe

to find probable

dismisses this aspect of

that it

provides for the

proper resolution of this appeal.

As the
police

breathed

majority eloquently
life

into

states, "In

moribund

child

1988, Houston

pornography

investigation by giving federal postal inspectors a customer list

unearthed

during

1975

probe

of

suspected

pornography

distributor."

Ante at 2.
____

investigation

--

The activity unearthed by the moribund

appellant

pornography

dealer

--

inspectors

conducted

ordered

two

occurred

in

sting

which

films

1974.

from

In

lured

1990,

appellant

child

postal
to

buy

forbidden films, and applied for a warrant to search his home for
those

and

other

application were

materials.
based,

The

thus, on

1990

operation

and warrant

appellant's activities

which

occurred sixteen years before.

-2424

In this circuit, we do not measure staleness merely

the

basis of the maturity of the

Bucuvalas, 970 F.2d 937,

_________
S.

Ct.

1382

(1993).

information.

on

United States v.
_____________

940 (1st Cir. 1992), cert. denied, 113

_____________
Other

factors

include

1) whether

the

criminal activity is ongoing or discrete; 2) whether the criminal

is

entrenched or nomadic; 3) whether

long-lasting or perishable;
searched
Id.

and 4)

are a secure operating

the items to be seized are

whether the

base or a

premises to

be

mere criminal forum.

The application of these factors to the facts of the present

__
case, some not fully detailed in the majority opinion,

discloses

the stagnant heart of this case.

First,

the

violating, 18 U.S.C.

statute

that

appellant

is

accused

of

2252(a)(2), prohibits the receipt of child

pornography through interstate commerce or mail.

The evidence in

the record of this case shows that appellant only engaged in this
activity twice, on

occasions separated

by sixteen

activity clearly cannot be described as ongoing.

is

buttressed by the fact

years.

The

This conclusion

that when appellant

placed the first

order, in 1974, the receipt of child pornography through the mail

was not

prohibited.

An early

version of

until

1978, with a substantial amendment

years
_____

after appellant's

order was

not

emphasized.

first order.

even illegal.
_______

This is

did not appear

occurring in 1984, ten

___
Thus,
a

appellant's first

point that

must

be

There was no ongoing illegal activity in this case,

because appellant acted illegally

induced

2252

him to

do so

in a

only once, when the government

sting operation.
-2525

In

other words,

appellant's

recent purchase

because those earlier

did not

update the

1974 purchase,

activities are not comparable

in terms of

nomadic

the ongoing

violation of the law.

Appellant's
reliability

of his 1974 activity.

in Newton,

Massachusetts.

Massachusetts, and
Appellant

lived

brother,

sharing

contained

nature also

at his
a

room

residence

with
even

1974 materials

his coresidents

moved to Framingham,

to another address

final

no information

retained the

At that time, appellant lived

Appellant later

yet again

negates

his

with

in Framingham.
his mother

sibling.

tending to

The

affidavit

show that

appellant

through these relocations,

tolerated the

and

presence of prurient

or that

material in

the shared premises.

I concede that the affidavit showed the ongoing utility

of child pornography to collectors and pedophiles, discussing how

such

individuals

Standing alone,

keep their

dross

however, this

for long

periods

information does not

of time.

justify the

conclusion

that appellant kept

the materials throughout sixteen

years

two

The

and

relocations.

affidavit

did

not

define

collector and pedophile, or characterize appellant as a member of

either class.
(9th Cir.
"the

See United States v.

___ _____________

1990) (concerning

affidavit does not say

Weber, 923 F.2d

_____

similar affidavit, the

how many magazines

is

inconclusive

materials

to

appellant,

as to

the

especially

ongoing
in light

court noted

or pictures one

must buy in order to be defined as a 'collector'").

affidavit

1338, 1345

As such, the

utility of
of

his

the

various

-2626

relocations
cannot

be

and

the long

presumed

passage

automatically

of time.
that

Additionally, it

appellant

would

keep

material which was illegal as a result of subsequent legislation,

once such a law went into effect in 1978.
Finally, there
was
kept

a secure base.
a

cache

relocations
affidavit

weaken

The

that he

that appellant's address

affidavit did not adduce that appellant

child
the

pornography
existence

merely established

home, which he
fact

of

is no showing

of this

that the

shared with his mother

shared his

there,

and

appellant's

possibility.

The

address was

appellant's

and brother.

Again, the

premises with

nonparticipants in

the

criminal enterprise is a weakening point in terms of the presence

of contraband at that location.

Based on these factors, I find it easy to conclude that

the information
not support
stagnant

pertaining to

a probable

information

affidavit and

was the

appellant's 1974

cause finding
formed

the

only basis

in this

heart
for the

of

materials could
case.
the

Yet, the

inspector's

attenuated inference

that appellant amassed

it, the

child pornography at

his home.

sting operation and the search warrant fall.

Without

This is as

far as we should go, proceeding directly to quash the conviction.

It is unnecessary to go further into constitutional speculation.

The majority proceeds, however, to answer unnecessarily

a

wholly

novel

question

anticipatory search

warrant

for

this

in this

circuit:
case

whether

was

the

constitutional.

Worse yet, it issues a blanket license allowing its proliferation

-2727

into common use.

For the majority to
our judicial power.
rulings

exercise of

It is axiomatic that we avoid constitutional

unless they

Hern ndez Col n,

________________

do so is an imprudent

963

are strictly
F.2d

necessary.

488, 494

(1st

El D a, Inc. v.
_____________
Cir.

1992) (citing

Alabama State Federation of Labor v. McAdory, 325 U.S.

__________________________________
_______

450, 461

(1945); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-55

_________
______________________
(1936) (Brandeis,

J., concurring);

Aggarwal v. Ponce School of

________
________________

Medicine, 745 F.2d 723, 726 (1st Cir. 1984)).

________
rationale for this

rule is to

The

long standing

avoid issuing advisory

United States v. Hastings, 296 U.S. 188, 193 (1935).

_____________
________
search

warrant in this case was

cause,

addressing the

opinions.

Because the

utterly unsupported by probable

constitutionality of

anticipatory search

warrants amounts to such an impermissible advisory opinion.

To complicate
side

of

this

problematic
search

matters, the

unnecessary

and erroneous

warrants are

plainly states

constitutional
result

violative

in this

of the

Probable

cause must exist

issuance
________

that the

contraband is
__

Steagald v.
________

United States,
_____________

issue

showing

legitimate

issue,
case.

of

"probable

choosing

Anticipatory

which

at the time of
_______________

place to

be searched.

204, 213 (1981)

cause

but upon probable

to believe

in the

451 U.S.

the wrong

Fourth Amendment,

that "no Warrants shall issue,

cause."

upon

majority elects

to believe

(warrants
that

the

object of a search is located in a particular place")

__

(emphasis added); United States v. Salvucci,

_____________
________

599 F.2d 1094, 1096

(1st

requires

Cir.

1979)

("the

Fourth
-2828

Amendment

that

the

supporting
neutral

affidavits

magistrate

to

set forth

sufficient

reasonably conclude

sought is located on the

__
warrant issues")

facts

that

to allow
the

property

premises to be searched at the time the

___________

(emphasis added),

rev'd on other grounds, 448

_______________________

U.S. 83 (1980); see also Sgro v. United States, 287 U.S. 206, 208
________ ____
_____________
(1932) ("the proof [supporting

probable cause] must be of

facts

so closely related to the time of the issue of the warrant

as to

justify a finding of probable cause at that time").

The requirement of contemporaneous probable cause flows

from

the interests animating the

principle

evils which

that

Fourth Amendment.

provision prevents

One of the

is vesting

law

enforcement officers with any discretion as to whether or not the

conditions

of

the warrant

have been

complied

with.

This is

precisely what anticipatory warrants permit in deviating from the

contemporaneous probable cause standard.
It is
privacy

well established

that "[t]he security

of one's

against arbitrary intrusion by the police -- which is at

the core of the Fourth Amendment

-- is basic to a free society."

Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971) (quoting Wolf
________
_____________
____
v.

Colorado, 338 U.S. 25,

________

Amendment places

27 (1949)).

very stringent

individual's privacy.

Accordingly, the Fourth

limits on officers

"'The proceeding by

invading an

search warrant is

drastic

one,'

and

must

by carefully

prevent unauthorized invasions of

and the privacies of life.'"

circumscribed

so

as to

'the sanctity of a man's

home

Berger v. New York, 388 U.S. 41, 58

______
________

(1967).
-2929

The
prevent

law

Fourth

Amendment

enforcement

officers

individual's belongings at will.

U.S.

463, 480 (1976) (quoting

forbids

general

warrants

to

from

rummaging

through

an

E.g., Andresen v. Maryland, 427

____ ________
________
Coolidge, 403 U.S.
________

at 467).

requirement of a particular description "'makes general

. .

. impossible and prevents

warrant describing another.

As

The

searches

the seizure of one

thing under a

to what is to be

taken, nothing

is left to the discretion of the officer executing the warrant.'"

Id.
___

(quoting Stanford v. Texas, 379 U.S. 476, 485 (1965), itself

________
_____

quoting

Marron
______

v. United States,
______________

275 U.S.

192,

196 (1927)).

Thus, a warrant authorizing a search for obscene publications was

deficient because it "merely repeated the language of the statute

and the complaints,

specified no publications,

individual judgment of each of the many

in the selection
'obscene

of such

Marcus
______

the

police officers involved

magazines as in

. . . publications.'"

and left to

his view

constituted

v. Search Warrant, 367

_______________

U.S. 717, 732 (1961).

Furthermore,

the Fourth

probable cause determination

magistrate, rather

than by

Amendment

be made by

requires that

a neutral and

the officers conducting

the

detached

the search.

It has long been established that

the point of the Fourth Amendment, which
often is not grasped by zealous officers,
is not that it denies law enforcement the
support of the usual inferences which
reasonable men draw from evidence.
Its
protection consists in requiring that
those inferences be drawn by a neutral
and detached magistrate instead of being
judged by the officer engaged in the
often competitive enterprise of ferreting
-3030

out crime.
Johnson
_______
the

v. United States, 333 U.S. 10, 13-14 (1948).

_____________

Fourth Amendment

would be

a "nullity"

and homes

Otherwise,

would be

"secure only in the discretion of police officers."

Id. at 14.
___

It is thus clear that the Fourth Amendment is concerned

with insulating the citizenry
officers.

Plainly

from the whims of law

and simply,

warrants erodes this

the use

insulation.

enforcement

of anticipatory

When an officer

search

is given

an

anticipatory search warrant, the magistrate essentially instructs

the

officer as

follows:

probable cause to
then left

When

the following

conduct a search will

to determine unilaterally

arise.

conditions occur,
The officer

whether, when, and

is

how the

conditions occur which give rise to probable cause.

Law enforcement officers should not be the ones, absent

exigent

circumstances, that

required to

engage in

weigh the merits of

the sensitive

probable cause in a

balancing

given case

because they are not neutral parties to the determination of that

crucial inquiry.

The

majority recognizes the need to

officers' discretion
nonetheless
quite

foists upon

sensitive

in a

warrant can only be

form a

in executing an

Ante at 12.
____

anticipatory warrant,

officers a

constitutional

determination that

sense.

An

executed when four threads come

coherent nexus:

seized, the place to

the

the criminal

limit the

act, the

is

anticipatory

together to

evidence to

be searched, and the "temporal

but

be

dimension."

The officers have virtually unfettered discretion to

determine when this "temporal dimension" has been fulfilled, with

-3131

no input from a neutral and detached judicial officer.

The

majority

also

recognizes

that

"[w]hen

issuing

anticipatory warrants, magistrates must rely to a large extent on

the

expertise of

federal agents

triggering event will occur."

finds that
at

5,

Ante
____

the certainty

at 21.

that the

Because the majority

probability is the touchstone of probable cause, ante

____

this fact

demonstrates

delegated to law enforcement

warrant

as to

context.

Law

the great

amount

of discretion

officers in the anticipatory search

enforcement

officers

put together

the

probability that gives rise to probable cause, and then determine

when the eventuality occurs.

In other words, the officers are in

control of the entire warrant process, shaping the probable cause

determination
judicially

from

start to

finish.

uncontrolled intrusion

interest is precisely what

Such

into an

an

unfettered and

individual's privacy

the Fourth Amendment was designed

to

prevent.
Incredibly,

given

the

majority's

resolution

of the

issue, no government interest weighed heavily in favor of the use

of anticipatory search warrants.
325,

337

(1985)

(balancing

See New Jersey v. TLO, 469 U.S.

___ __________
___
"the

individual's

legitimate

expectations

of

privacy

government need for

and

personal

security"

effective methods to

with

"the

deal with breaches

of

public order" in passing on the validity of a class of searches).

An officer "engaged in the often competitive enterprise

of ferreting out crime," Johnson, 333 U.S. at 14, has two options
_______
in cases

such as

this one.

Once the

controlled delivery

of

-3232

contraband is complete, he may apply for a search warrant to

appropriate
arise

in

magistrate.
the

immediate

course

action,

warrantless

of

the

search

is no

the

officer
pursuant

circumstances exception
there

Alternatively, if

legitimate need

controlled
is
to

to the

an exigency
delivery

authorized
the

to

for such

should

requiring
conduct

well-known

warrant requirement.

the

exigent

In short,

novel erosion

of the

Fourth Amendment as is promoted by anticipatory search warrants.

The
ante
____

at 7

majority's analogy

n.3, is

magistrate must

misapplied.

observe

specific to wiretaps.

to

warrants for

When authorizing a

"precise and

discriminate"

Katz v. United States,

wiretapping,

wiretap, a

procedures

389 U.S. 347, 355

____
(1967)

(quoting Berger,
______

magistrate
the

_____________

388

U.S. at

must identify the

(1977).

the wiretap

under

of privacy

388 U.S. at 57).

Katz,
____

389

discussed above,

to

lacking
are

enforcement
circumstances

the

simply

need.

place before
______

ensure that

"'no

[is] necessary

U.S. at

355

(quoting

Id.
___

anticipatory search

basic

protections

unnecessary

Normal

exception

v. Donovan, 429
_______

They thus afford "'similar protections

As

warrants,

the

be tapped and

[is] permitted than

to those . . . of conventional warrants.'"

addition

example,

must be fully in

These safeguards

the circumstances.'"

Berger,
______

United States
_____________

Probable cause

is authorized.

greater invasion

For

telephone number to

conversations to be seized.

U.S. 413

57).

search

adequately

to

any

warrants
address

of

warrants, in

conventional

legitimate
and

the

whatever

law

exigent

need may

-3333

arise in a controlled delivery.

As such, allowing the government

to

employ a new technique

with which to

invade an individual's

privacy interest is completely unwarranted (no pun intended).

-3434