#### UNITED STATES of America, Plaintiff, v. Roy K. BINGHAM, Defendant.

No. CR. 02-25J.

United States District Court, W.D. Pennsylvania.

July 8, 2003.

*667William J. McCabe, DeBernardo, Anto-niono, McCabe *&*Davies, Greensburg, Marketa Sims, Federal Public Defender’s Office, Pittsburgh, for Roy K. Bingham (1), Keith L. Glover (2), defendants.

John J. Valkovci, Jr., United States Attorney’s Office, Johnstown, for U.S. Attorneys.

MEMORANDUM ORDER

CINDRICH, District Judge.

Defendant was indicted for conspiracy to distribute crack and heroin and for possession with the intent to distribute crack and cocaine. On May 19th and 20th, 2003, the court held a suppression hearing and orally denied defendant’s motion to suppress. Thereafter, defendant entered a guilty plea. We write to address one of the issues raised during the suppression hearing, the officers’ use of an “anticipatory search warrant,” in more detail.

*Factual Background*

The defendant in this case was not the primary target. However, he was known to officer Kevin Price, the leader of this investigation. In June 2002, while Price was making an undercover buy of drugs from the former residence of co-defendant Keith Glover, defendant Roy Bingham walked into the home without knocking, such as a resident or frequent guest would do. Between June and September, 2002 (when the anticipatory warrant was obtained), Glover moved to a new residence. As Price testified at the suppression hearing, the drug purchase which is the subject of the instant case was the first controlled buy from Glover’s new home. The officers *668had not conducted any surveillance of the home prior to September 18, 2002.

The affidavit of probable cause, attached as Appendix I, was prepared on September 18, 2002. In paragraph 1, Price recounted his considerable experience in narcotics investigations. Paragraph 2 explained that Price was working with a rehable confidential informant. Paragraphs 3 and 4 of the affidavit recounted two undercover drug buys, of heroin, from Glover’s old home in June, 2002. Paragraph 5 recounted a traffic stop of Glover’s car while driven by defendant Bingham in which marijuana, currency and a scale were found.1 In paragraph 6, the affidavit reported that Glover had moved. Then, at paragraph 7, the affidavit baldly stated: “We anticipate in the next 72 hours, this AFFIANT and the Cambria County Drug Task Force will execute a controlled buy of CRACK COCAINE from a black male identified as Keith GLOVER.” There was no explanation of why the officers expected to be able to perform a buy during that time. The affidavit did not explain why this buy would involve crack cocaine when the earlier buys involved heroin. Nor was there any information to connect the controlled substances to Glover’s new home. Instead, the affidavit went into considerable detail about the mechanics of the controlled buy. The affidavit was reviewed by an assistant district attorney and then authorized by the Chief Judge of the Court of Common Pleas of Cambria County-

After the anticipatory search warrant was issued, officers observed Bingham and Glover enter the home. The officers then initiated the controlled buy, according to the protocol described in the affidavit of probable cause. Ten or fifteen minutes elapsed between the controlled buy and the pre-planned execution of the warrant. When the officers gained entrance through a ruse, defendant ran, dove out a window and was arrested by officers guarding the perimeter.

*Theoretical Considerations*

The Fourth Amendment to the United States Constitution reads:

> “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Anticipatory search warrants are a relatively new phenomenon. In 1990, Fed. R.Crim.P. 41(a) was amended to permit anticipatory search warrants “by omitting the words ‘is located,’ which in the past required that in all instances the object of the search had to be located within the district at the time the warrant was issued.” Rule 41 Advisory Committee Notes. They are not unconstitutional per se. *United States v. Loy,*191 F.3d 360 (3d Cir.1999). However, as this case illustrates, officers, prosecutors and issuing magistrates are unclear about the constitutional requirements for such warrants.

The Court of Appeals, in *Loy,*articulated the general principles governing anticipatory search warrants in the context of a child pornography investigation. The principles set forth in *Loy*are easily applied to shipments of drugs intercepted through the mails. We address the use of an anticipatory search warrant in the somewhat more complicated context of a controlled purchase of illegal drugs by a confidential informant.

*669“Anticipatory” search warrants are so named because they require the occurrence of some future event(s) before they become effective. *Id.*at 364. In theory, they make great sense. Evidence of drug crimes is easily moveable. If the officers have reliable information that contraband will be at a certain place at a specified future time, they can present that information for judicial approval in advance. Rather than waiting until the conditions materialize, when exigent circumstances2 may exist, officers can give the issuing magistrate a better opportunity to review the affidavit by acting ahead of time.

Anticipatory search warrants must comply with the Fourth Amendment. As the Court of Appeals has explained, “it is not enough that the anticipatory search warrant be conditioned on the contraband arriving at the designated place. While such conditions guarantee that there will be probable cause at the time the search is conducted, the warrant must also be supported by probable cause at the time it is issued.” *Id.*at 365 (emphasis added). The text of the Fourth Amendment requires that “no Warrants shall issue, but upon probable cause.” (Emphasis added).

The tautological conclusion — that probable cause will exist after the triggering conditions which give rise to probable cause have been met — is unhelpful to a Fourth Amendment analysis. Of course, after a controlled drug buy has occurred in a house, there will be probable cause to believe that additional drugs, and paraphernalia will be found. At a minimum, the proceeds from the drug sale will likely still be in the home. The Fourth Amendment, however, requires more. The affidavit must set forth facts that demonstrate probable cause to believe that the triggering conditions (in this case, the controlled buy) will occur. “[T]he magistrate judge cannot rely on police assurances that the search will not be conducted until probable cause exists.” *Id.*Rather, “the magistrate judge must find, based on facts existing when the warrant is issued, that there is probable cause to believe the contraband, which is not yet at the place to be searched, will be there when the warrant is executed.” *Id.*(emphasis added). If the law were otherwise, it would be possible for the police to get an anticipatory search warrant for every residence — just in case they might be able to make a controlled buy there.

Anticipatory search warrants incorporate judicial scrutiny earlier in the sequence of events than in traditional search warrants. Rather than a judge determining whether probable cause has been shown that the evidence of a crime *is*in a certain place, as in a traditional warrant, the officers executing an anticipatory warrant must decide whether the triggering conditions have been met. Thus, without tight controls on the use of anticipatory warrants, courts could be accused of ceding their decision-making authority to the police force, the very entity the Fourth Amendment was designed to protect against.

Anticipatory search warrants are prone to potential abuse. What if most, *670but not all, of the conditions set forth in the affidavit of probable cause occur? What if the conditions are substantially, but not entirely, fulfilled? What if the address on the affidavit contains a typographical error? What if the affidavit describes a purchase of powder cocaine but the confidential informant receives crack or heroin? What if the target won’t sell the controlled substance but gives the confidential informant a “free sample”? What if the target purports to sell crack but the field test is negative? What if the target accepts the money but says that the confidential informant will have to pick up the drugs the next day? What if the target tells the confidential informant that he just sold out? What if the target goes outside or into a different residence during the buy and returns with the contraband? What if the entire transaction occurs outside or in a different residence? What if one or all of the residents leave the home before the warrant can be executed? Obviously, there is an almost limitless array of circumstances that may occur. Some of these scenarios may represent *de minimis*variations that would not invalidate the warrant, while others are significant. Who decides? It will be difficult to subject the officers’ decision-making process to judicial scrutiny after-the-fact. Because of the increased latitude anticipatory warrants afford to officers, additional safeguards are needed to protect citizens’ Fourth Amendment rights. This augurs for a strict interpretation of the “particularity” requirement in the Fourth Amendment’s text. Issuing magistrates should condition anticipatory warrants upon strict compliance with the time, place and events described in the affidavit of probable cause.

*Practical Considerations*

We now attempt to give practical guidance to those persons involved in seeking and authorizing anticipatory search warrants. In *United States v. Garcia,*882 F.2d 699, 703 (2d Cir.1989), the Court explained that the affidavit underlying the warrant “must show, not only that the [government] agent believes a delivery of contraband is going to occur, but also *how*he has obtained this belief, how rehable his sources are, and what part government agents will play in the delivery.” (Emphasis in original). The Court also explained that the issuing magistrate “should protect against its premature execution by listing in the warrant conditions governing its execution which are explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents.” *Id.*at 708-04. We agree. Issuing magistrates “must also carefully craft anticipatory warrants to limit the scope of the warrant-authorized search to items which law enforcement officers have probable cause to believe are located on the premises.” *Id.*at 704.

We will use this case as an illustration. First, the affidavit of probable cause should contain a prominent notification that the officers are seeking an ANTICIPATORY SEARCH WARRANT. This will serve to put the issuing magistrate on notice of the particularized requirements of anticipatory warrants. Second, the affidavit must explain why officers believe that the triggering events will occur. At paragraph 7, the affidavit of probable cause stated: “We will perform a controlled buy from Glover’s new residence in the next 72 hours.” To be effective, the affidavit should also state, for example: *“Our confidential informant has been in contact with Glover in the past week. We have used this confidential informant xxx times over the past xxx months and have found him to be 100% reliable. Glover told the informant that he would be returning from Pittsburgh in the next 72 hours with cocaine and that the confidential informant could buy some at the new home when Glover returned. Government**671*agents will conduct surveillance of the home prior, during and after the controlled buy. The controlled buy will be performed according to standard procedures, as follows*...The remainder of the affidavit of probable cause used in this case, which sets forth the mechanics of the controlled buy, is well-drafted.

We review issuing magistrate’s decisions to ensure that they had a “substantial basis” for concluding that probable cause existed. *Loy,*191 F.3d at 365. This is a deferential review, but not a rubber stamp. *Id.*The issuing magistrate must treat anticipatory warrants with more caution than traditional warrants. First, the magistrate should incorporate the affidavit of probable cause into the warrant. There should be a prominent textual reference along the lines that “This warrant is not effective except upon the occurrence of the conditions set forth in the attached affidavit of probable cause.” The affidavit should then be physically attached to the warrant.3 This is necessary to give the citizen affected by the search a reasonable explanation of the grounds for the search. Second, the issuing magistrate should also explicitly tie the time of execution to the conditions set forth in the affidavit. For example, in this case, the affidavit of probable cause stated that the controlled buy would occur within 72 hours. However, the judge signed the warrant for execution by that evening. Because the warrant was authorized before the 72 hours elapsed, the conditions that gave probable cause may not yet have occurred. If the affidavit explains that the target will return to his residence with drugs in the next 72 hours, the issuing magistrate should condition the warrant upon the officers’ observation that the defendant did return home in those 72 hours. If the officers cannot say when the events will occur, they have most likely not demonstrated probable cause. Third, the issuing magistrate should give the officers a limited, reasonable time to perform the controlled buy, to avoid staleness4 concerns. For example, the issuing magistrate could state that the warrant will be effective only if the controlled buy is performed within 24 hours of the officers’ observation that the target had returned to his residence. In summary, the issuing magistrate must ensure that probable cause exists at the time of issuance, that the “particularity” requirement is complied with, and that officers are not given unbridled discretion in executing the warrant.

*The “Good Faith” Exception*

For the reasons set forth above, the warrant in this case was not supported by probable cause. However, such evidence may still be admissible under the “good faith” exception. “The test for whether the good faith exception applies is ‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.’ ” *Loy,*191 F.3d at 367 (quoting *United States v. Leon,*468 U.S. 897, 922 n. 23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). We conclude that in this case, the “good faith” exception to the exclusionary rule clearly applied.5

The officer involved, Kevin Price, was extremely well-trained and experi*672enced. He is the leader of the Cambria County drug task force and is a former graduate and current faculty member of the Top Gun school. The affidavit contains many factual details and is clearly written — a far cry from a “bare bones” affidavit. The information about the earlier controlled buys from Glover’s home, while stale, gave helpful background to indicate that he was a known drug dealer and thus increased the likelihood that evidence of a drug sale would be on the premises if the conditions were met. After officer Price drafted the affidavit of probable cause, an assistant district attorney reviewed and approved it. Thereafter, officer Price presented the affidavit to the Chief Judge of the Court of Common Pleas of Cambria County. This is a fairly new and intricate area of law without much guidance from the courts. Officer Price was clearly acting in good faith reliance on the legal advice he received from the district attorney and on the issuing judge’s authorization.

*Leon,*though, presumes that reasonable officers will take reasonable efforts to keep up with developments in the law. “When the Supreme Court announced the good faith exception in *Leon,*it weakened the exclusionary rule, but it did not eviscerate it. Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.” *United States v. Zimmerman,*277 F.3d 426, 437-38 (3d Cir.2002) (citation omitted). We publish this opinion in the expectation that officers, prosecuting attorneys and issuing magistrates will adhere to the guidelines set forth in this opinion, and more importantly those enunciated in *Loy,*when confronted by anticipatory warrants in the *future.*

In accordance with the foregoing, defendant’s motion to suppress evidence is DENIED.

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1

. Although not stated in the affidavit, Officer Price was also aware that there was a bench warrant out for Bingham's arrest because he had failed to appear for jury duty.

2

. The factors to be considered in the exigent circumstances exception to the warrant requirement are: "(1) the degree of urgency involved and the amount of time necessary to obtain a warrant,(2) reasonable belief that the contraband is about to be removed,(3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought,(4) information indicating the possessors of the contraband are aware that the police are on their trail, and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.” *United States v. Rubin,*474 F.2d 262, 268-69 (3d Cir.1973) (citations omitted).

3

. Alternatively, for example, where there are legitimate security concerns related to the early disclosure of the affidavit, the triggering conditions could be restated on the face of the warrant.

4

. "The likelihood that the evidence sought is still in place depends on a number of variables, such as the nature of the crime, of the criminal, of the thing to be seized, and of the place to be searched.” *United States v. Tehfe,*722 F.2d 1114, 1119 (3d Cir.1983).

5

.There are four situations, none present here, in which an officer’s reliance on a warrant would not be reasonable and would not trig*672ger the exception: (1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) the magistrate [judge] abandoned his judicial role and failed to perform his neutral and detached function; (3) the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized. *United States v. Williams,*3 F.3d 69, 74 n. 4 (3d Cir.1993) (citations omitted).