McNeill v. Commonwealth
In McNeill v. Commonwealth, 10 Va. App. 674, 395 S.E. 2d 460, 462 (Va. Ct. App. 1990) the Virginia Court of Appeals held that anticipatory warrants are lawful so long as the contraband that is to be seized is on a "sure course" to its destination such as by mail and there is probable cause to believe that items to be seized will be at the place to be searched at the time the warrant is executed.
The court rejected the defendant's argument that the cocaine seized from his apartment should have been suppressed because the search warrant had been issued before the drugs had arrived at the apartment and, because the police had controlled the package containing the drugs, no crime could take place unless the police officers facilitated the commission of that crime. However, the defendant had been contacted by a UPS worker about the package which had been intercepted.
The defendant confirmed he was expecting it, arranged for its delivery at a specific location, and assured UPS he would be there to accept it. Nevertheless, the court found that the very fact the drugs were on a sure course to the defendant satisfied the requirement of probable cause to support the warrant, relying, in part, on United States v. Washington, 852 F.2d 803 (4th Cir. 1988), and United States v. Lowe, 575 F.2d 1193 (6th Cir. 1978).
The McNeill court expressly rejected State v. Berge, 130 Ariz. 135, 634 P.2d 947 (1981), disagreeing with our supreme court and noting that the Berge court had stated its issue "was 'not one of an anticipatory warrant, but whether there was reasonable ground to believe a crime was being committed,' and no reference was made to the sure course doctrine." McNeill, 395 S.E. 2d at 463, quoting Berge, 130 Ariz. at 138, 634 P.2d at 950. The McNeill court "rejected the contention that ...no crime was in progress when the contraband was placed with UPS in Florida with direction that it be delivered to appellant in Virginia." McNeill, 395 S.E. 2d at 463.