Sixth Circuit Curbs Anticipatory Warrants

The Sixth Circuit last week, in United States v. Perkins, issued a very helpful decision for criminal defendants, affirming suppression of evidence obtained through a faulty "anticipatory warrant." Specifically, the court held that, if a warrant requires delivery of a package to a particular person, then its delivery to another person, even at the same address, is not enough to establish probable cause.

Anticipatory warrants require a "triggering event" to establish probable cause. If that triggering event doesn’t occur, and police searched anyway, suppression ensues, right?

It isn’t quite that easy. Warrants must not be read "hypertechnically" but in a "commonsense fashion." For example, in an earlier case, the warrant required that a package be delivered to a residence and "taken by someone inside." But officers actually delivered the package to someone who had just left the house and then left the premises altogether. It would be "hypertechnical," the court said, to read the warrant to require the package to be taken by someone remaining in the house.

In Perkins’s case, the warrant required hand delivery to Perkins as the triggering event. It was "hardly hypertechnical," the court ruled, to read this language to mean exactly what it says. So when officers (who hadn’t actually read the warrant) delivered the package to Perkins's fiancé instead of Perkins himself, there was no probable cause to search.

Judge Thapar, writing for a unanimous panel, rejected the government’s argument that the court could read the warrant to require delivery "to anybody inside the residence with apparent authority to accept delivery." Not so, he said, as "the replace-some-words canon of construction has never caught on in the courts."

Notably, the government did not argue that the search was “reasonable” under the Fourth Amendment even if the warrant was invalid, leaving that fight for another day.