What Is An Anticipatory Search Warrant ?
"An anticipatory search warrant is a warrant 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." People v. Brake, 208 Mich. App. 233, 244; 527 N.W.2d 56 (1994) (Wahls, J., concurring in part and dissenting in part). See also United States v. Garcia, 882 F.2d 699, 702 (CA 2, 1989).
Although numerous state and federal courts have held that properly drafted anticipatory search warrants do not contravene constitutional provisions, Michigan appellate courts have not yet squarely addressed this issue. the Court found this anticipatory search warrant valid.
In United States v. Garcia, 882 F.2d 699, 702 (CA 2, 1989), the seminal case establishing the standards for an anticipatory search warrant, the Second Circuit Court of Appeals determined that such a search warrant is not unconstitutional per se and may be an effective tool in fighting criminal activity and protecting an individual's Fourth Amendment rights.
In making this determination, the court opined that the objective of the Fourth Amendment is better served by allowing an agent of the government to obtain a warrant in advance of the delivery instead of having the agent proceed without a warrant in reliance on the "exigent circumstances" exception to the warrant requirement and risk being second-guessed by the court at a later date. Id.
However, the court in Garcia was not blind to potential abuse in issuing a search warrant conditioned on what may happen in the future instead of the traditional method of establishing probable cause based on current conditions.
Thus, the court determined that magistrates and judges should take care to require independent evidence establishing probable cause that the contraband will be located at the premises at the time of the search. Further, the magistrate should protect against its premature execution by listing in the warrant the conditions governing its execution. 882 F.2d at 703-704.