State v. Lee

BLOOM, Judge. This appeal by the State, pursuant to § 12-302(c)(3) of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 1989 Repl.Vol.), is from an order of the Circuit ⁴¹⁰ Court for Allegany County (Leasure, J.) granting the motion of appellee, Frederick Roy Lee, to suppress as evidence certain items (controlled dangerous substances, drug paraphernalia, and money) that were seized and removed from his home by virtue of a search and seizure warrant. The State suggests that the single issue before us — one that has not heretofore been addressed either by the Court of Appeals or this Court — is whether the use of anticipatory warrants should be sanctioned in Maryland. We decline to so frame the issue; the case as presented to us involves only the question of whether Judge Leasure erred in ruling that the specific warrant in question, authorizing and directing a search of appellant’s residence, was invalid.

Holding that he did not err, we shall affirm the suppression order from which this appeal was taken. I By criminal information filed in the Circuit Court for Allegany County, appellee was charged with possession of LSD in sufficient quantity to indicate an intent to distribute, possession of LSD, possession of marijuana, and two counts of possession of drug paraphernalia. By motion to suppress, appellee challenged the validity of the search warrant by means of which police officers entered his place of residence and seized and removed therefrom certain items, including controlled dangerous substances and drug paraphernalia. The court granted appellee’s motion and this appeal from that decision was promptly noted by the State.

There is no basic dispute concerning the facts giving rise to the motion to suppress. On 9 December 1991 a confidential informant telephoned Trooper First Class Jack Matthew of the Maryland State Police Drug Enforcement Division. The informant told Officer Matthew that he was able to purchase LSD from appellee. Matthew arranged to meet the confidential informant and set up a “controlled buy” at appellee’s home. ⁴¹¹ Armed with this information, Matthew applied to a judge of the District Court for a search warrant.

The affidavit accompanying the application for the warrant included the following information: (1) Matthew was familiar with controlled substances, investigations, search warrants, and the like; (2) he was advised by the confidential informant that appellee was presently in possession of LSD and would receive more LSD that day; 1 (3) the confidential informant would make a “controlled buy” that night; (4) on 8 February 1988 appellee had been convicted of a drug offense; (5) two months prior to the application a fellow officer received information indicating that appellee was engaged in the distribution of LSD. Relying on that information, the District Court judge issued a search warrant authorizing a search of appellee’s home but made execution of the warrant contingent upon confirmation of a purchase of LSD by the confidential informant on the same day. Shortly thereafter, Matthew met with the confidential informant and arranged the purchase. He supplied the confidential informant with a ten dollar bill for use in the impending drug transaction.

The confidential informant then traveled to West Virginia to pick up an “unwitting individual” (his brother). The two allegedly purchased two “hits” of LSD from appellee at his home. The police did not maintain constant surveillance of appellee’s home as those events transpired. 2 ⁴¹² Immediately after the purchase, the confidential informant met with Matthew and surrendered to him the substance purportedly obtained from appellee. Without benefit of a field test, Matthew identified the substance as LSD and immediately executed the search warrant of appellee’s home.

The search yielded controlled dangerous substances, drug paraphernalia, and a ten dollar bill. Appellee filed a pretrial motion to suppress the seized evidence. In granting that motion, the circuit court ruled that the warrant was invalid for lack of probable cause and that Matthew had obtained the warrant prematurely. Judge Leasure concluded that Matthew should have arranged for the purchase of LSD from appellant before applying for the search warrant, so that the District Court judge could have been informed about the particulars of the sale before he issued a warrant.

This appeal from the suppression order followed. II Anticipatory warrants are warrants “based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” 2 W. LaFave, Search & Seizure, §J5.7(c), at 94 (2d ed. 1987). By definition, such warrants are “issued before the necessary events have occurred which will allow a constitutional search of the premises; if those events do not transpire, the warrant is void.” United States v. Garcia, 882 F.2d 699, 702 (2d Cir.1989), cert. denied, 493 U.S. 943 , 110 S.Ct. 348 , 107 L.Ed.2d 336 (1989). Although anticipatory warrants are issued in advance of the happening of events that are a necessary prerequisite to the constitutionality of the warrants themselves, federal and state courts that have addressed the issue are almost unanimous in holding that the warrants are not per se ⁴¹³ unconstitutional.

United States v. Wylie, 919 F.2d 969, 974 (5th Cir.1990); Garcia, 882 F.2d at 703 ; United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir.1988), cert. denied, 490 U.S. 1005 , 109 S.Ct. 1639 , 104 L.E.2d 155 (1989); United States v. Hale, 784 F.2d 1465, 1468 (9th Cir.1986), cert. denied, 479 U.S. 829 , 107 S.Ct. 110 , 93 L.Ed.2d 59 (1986); United States v. McGriff, 678 F.Supp. 1010 , 1014 n. 5 (E.D.N.Y.1988); Commonwealth v. Reviera, 563 A.2d 1252, 1254 (Pa.Super.1989); State v. Wright, 115 Idaho 1043 , 772 P.2d 250, 258 (Ct.App.1989); State v. Mier, 147 NJ.Super. 17, 370 A.2d 515, 517 (Ct.App.Div.1977); People v. Glen, 30 N.Y.2d 252 , 331 N.Y.S.2d 656, 659 , 282 N.E.2d 614, 615 , cert. denied, 409 U.S. 849 , 93 S.Ct. 58 , 34 L.Ed.2d 91 (1972); Alvidres v. Superior Court, 12 Cal.App.3d 575, 581 , 90 Cal.Rptr. 682 (1970). The linchpin of the Fourth Amendment is reasonableness, and courts have concluded that it is “not unreasonable for a magistrate to believe certain controllable events will occur in the near future, e.g., that the post office will deliver a package the next day, when responsible officials so advise him.” United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.1978), cert. denied, 439 U.S. 869 , 99 S.Ct. 198 , 58 L.Ed.2d 180 (1978). Courts consistently have rejected the argument that at the time of issuance of the warrant there must be probable cause to believe that property subject to seizure is presently located at the place to be searched, so long as “ ‘there is probable cause to believe that it will be there when the search warrant is executed.’ ” Garcia, 882 F.2d at 702 , citing Lowe, 575 F.2d at 1194 . The New York Court of Appeals explained the reasoning as follows: At best, present possession is only probative of the likelihood of future possession.

In cases like these the certainty of future possession is greater or is often greater than that based on information of past and presumably current possession. Glen, 331 N.Y.S.2d at 661 , 282 N.E.2d at 617 . In fact, “it may fairly be said that as a general proposition the facts put forward to justify issuance of an anticipatory warrant ⁴¹⁴ are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon known prior location of the items to be seized at the place to be searched.” 2 W. LaFave, supra, at 97. Based on this reasoning, 3 courts have manifested a willingness to uphold anticipatory warrants where contraband is on a “sure and irreversible course to its destination.” Hale, 784 F.2d at 1468 .

See also, Wylie, 919 F.2d at 974 (collecting cases); Mier, 370 A.2d at 517 ; State v. Cox, 110 Ariz. 603 , 522 P.2d 29, 34 (1974) (warrant issued in anticipation of defendant’s arrival into the jurisdiction with contraband); Glen, 331 N.Y.S.2d at 662 , 282 N.E.2d at 618 (“The necessary pieces were in motion and all but inevitably the pieces would fall into a set, at a later time, constituting the crime.”). But see United States v. Hendricks, 743 F.2d 653, 654 (9th Cir.1984), cert. denied, 470 U.S. 1006 , 105 S.Ct. 1362 , 84 L.Ed.2d 382 (1985) (anticipatory warrant invalid where shipment terms required suspect to pick up package at a depository because there was no certainty that suspect would ever bring package to his home, the place to be searched). Most typically, authorities intercept illegal drugs, child pornography, or other contraband in thé course of shipment to the defendant. The parcel is specifically addressed to the defendant (or his alias) and, but for the temporary intervention of law enforcement authorities, would continue undisturbed on its course to its stated destination.

Glen, 331 N.Y.S.2d at 662 , 282 N.E.2d at 617-18 (“the crime and the ⁴¹⁵ person involved [are] committed by the chain of circumstances already in process but short of consummation, so that in the natural course of events the crime would occur at the time and place with defendant’s implication”). After ascertaining» the illegal nature of the contents of such parcels, the authorities obtain anticipatory warrants authorizing seizure of the evidence only upon verified delivery to the defendant. These “controlled” deliveries 4 are most often carried out by law enforcement officers posing as mail carriers or UPS employees, 5 although in some cases authorities simply monitor the delivery to and receipt by defendant. 6 Courts have recognized that warrants issued before criminal possession has actually occurred present greater potential for abuse than do more routine warrants based on past events that indicate likely current possession. The potential ⁴¹⁶ problems are threefold.

The Court of Appeals of Idaho has explained that the risks inherent in anticipatory warrants include the risk of premature issuance, the risk of judicial abdication of the probable cause determination, and the risk of premature execution. Wright, 772 P.2d at 258-59 . Premature issuance refers to clearly unconstitutional anticipatory warrants based on “mere speculation of future criminal activity,” or on evidence indicating “only that the suspect is expected to commit a crime in the future.” Id. “Speculation or inference, however good, that a crime will be committed in the future at a certain place” cannot sustain a warrant. Glen, 331 N.Y.S.2d at 662 , 282 N.E.2d at 617 .

See also, Reviera, 563 A.2d at 1255 . To protect against such abuse, courts have required a particularized showing that the items to be seized will be in the place to be searched at a specified time. “The courts often speak* in terms of ‘inevitability’ or ‘imminence’ when referring to this requirement.” Wright, 772 P.2d at 258 . [W]here there is no present possession the supporting evidence for the prospective warrant must be strong that the particular possession of particular property will occur and that the elements to bring about that possession are in process and will result in the possession at the time and place specified. Otherwise, the hated general writs of assistance of pre-Revolutionary times would be revived, in effect, despite constitutional limitations. Glen, 331 N.Y.S.2d at 661 , 282 N.E.2d at 617 .

Controlled deliveries are unique in providing the necessary imminence and inevitability. The issuing magistrate can foresee with near certainty not only that the crime will come to fruition, but also that it will unfold precisely as set forth in the warrant application. Delivery is entirely within the control of authorities, and little or no cooperation is required from the suspect or others. With minimal reliance on the unpredictable behavior of private citizens, there is little risk of deviation from the schedule of events set forth in the warrant.

See Garcia, 882 F.2d at 704 (warrant only ⁴¹⁷ required deposit of the contraband in the suspect’s home, not affirmative acceptance by him). Ill The facts of this case are in sharp contrast to those involved in the controlled delivery cases in which the anticipatory warrants were approved. The District Court judge who issued the warrant in this case had to assume not only that appellee would come into possession of LSD and that he would then sell it, but also that the confidential informant and “unwitting individual” (about whom the authorities knew nothing) would cooperate fully in the enterprise and engage the defendant in a sale. The evidence submitted in support of this conjecture comes precariously close to “mere speculation.” The bulk of the evidence contained in the affidavit