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Sixth Circuit Suppresses Evidence Where Triggering Event Specified in Anticipatory Search Warrant Never Occurred

by Richard Resch

In an opinion issued on April 4, 2018, the U.S. Court of Appeals for the Sixth Circuit affirmed the suppression of evidence ostensibly obtained pursuant to an anticipatory search warrant where the triggering event never occurred.

This case was set in motion when a police dog alerted law enforcement officers to a suspicious-smelling package. An examination of the package revealed that it contained methamphetamine. It was addressed to “B. PERKINS” at “5831 Rowe Gap RD Belvidere, TN 37306.”

Investigators determined that the defendant, William Perkins (aka Billy), resided at that address. A trusted confidential informant advised police that he had known Perkins for 20 years, Perkins was a meth dealer, and he had bought meth from Perkins within the past six months. Additionally, local law enforcement knew that Perkins was a meth dealer.

Based on the foregoing information, DEA officer Daniel Warren sought an anticipatory search warrant for Perkin’s residence. Unlike a traditional warrant, an anticipatory warrant becomes effective only upon the occurrence of a specified future event—the “triggering event”—that establishes probable cause for the search. United States v. Grubbs, 547 U.S. 90 (2006).

Warren proposed that fellow DEA officer Kyle Brewer pose as a FedEx delivery driver and personally hand the package at issue to Perkins. His acceptance of the package would be the triggering event that would make the warrant effective, and officers would then be authorized to search Perkins’ residence. A judge issued the anticipatory warrant specifying the triggering event as proposed by Warren, i.e., hand delivery of the package “to Perkins.”

Brewer was not advised that he had to personally hand deliver the package to Perkins. When he knocked at the door, Perkins’ fiancée answered. Brewer asked her if she was expecting a package, and she responded by stating “Yes, we are.” Brewer did not ask who she was or whether Perkins was present. Upon her acceptance of the package, officers executed the search of the residence. However, Perkins was not present and returned about an hour later.

Perkins was subsequently charged with possession with intent to distribute meth. He filed a motion to suppress the evidence recovered from his residence. He argued that the triggering event never occurred, and thus the search warrant never became effective. A magistrate judge ruled that delivery to his fiancée was close enough, but the district court disagreed and granted Perkins’ motion to suppress. The government appealed.

On appeal, the question before the Sixth Circuit was “What happens when an anticipatory warrant’s triggering event never happens?”

Like all search warrants, anticipatory warrants require probable cause. The occurrence of the triggering event provides the probable cause. As a general rule, failure to comply with the trigger event voids the anticipatory warrant. United States v. Rey, 923 F.2d 1217 (6th Cir. 1991). The triggering event must be “explicit, clear, and narrowly drawn.” United States v. Miggins, 302 F.3d 384 (6th Cir. 2002). Officers’ role with respect to the triggering event should be “almost ministerial,” and courts will not permit officers to manipulate the triggering event after the warrant has been issued, stated the Court.

In reviewing the relevant case law, the Court noted that the government sometimes ties the triggering event to a specific person and sometimes does not, requiring only that someone within the target residence accept delivery of the package used in the ruse. In the present case, the government specified that delivery “to Perkins” would be the triggering event. The Court stated that “[c]ommon sense dictates that the government intended what it wrote.”

The Court rejected the government’s argument that a strict reading of “to Perkins” was unduly formalistic and hypertechnical. The Court observed that the government could have proposed the triggering event to be the receipt of the package by anyone within the target residence. But it did not do so and thus never tested whether a magistrate would have granted an anticipatory search warrant based on that broader triggering event.

Additionally, the Court determined that requiring hand delivery “to Perkins” is the “only common sense reading of the warrant’s triggering event.” It observed that the government’s interpretation lacks common sense. The phrase “to Perkins” cannot be interpreted to mean “to anybody inside the residence with apparent authority to accept delivery,” as the government argues.

The Court reasoned that Perkins was the specific target of law enforcement, and they “thought his role important enough to require Perkins’ personal involvement in the triggering event.” As such, the Court concluded that “reading delivery ‘to Perkins’ to mean anything other than delivery ‘to Perkins’ is not common sense, but rather nonsensical.” Since the triggering event that would have made the search warrant effective never occurred, officers conducted a warrantless search of Perkins’ residence in violation of the Fourth Amendment.

Accordingly, the Sixth Circuit affirmed the district court’s suppression of the evidence recovered from Perkins’ residence. See: United States v. Perkins, 887 F.3d 272 (6th Cir. 2018). 


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Related legal case

United States v. Perkins



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