by Douglas Ankney

The Supreme Judicial Court of Massachusetts held that “art. 14 of the Massachusetts Declaration of Rights prohibits the police from executing an anticipatory search warrant absent compliance or equivalent compliance with the future triggering event, regardless of whether the factual allegations in the warrant affidavit independently give rise to probable cause to search.”

Background

The search of Victor Manuel Mercedes’ apartment stemmed from a joint investigation by local and state law enforcement agencies, including the Lynn police department’s drug task force, and United States Postal Service inspectors into a drug trafficking organization suspected of using USPS to ship large quantities of narcotics from Puerto Rico to the Lynn area.

Law enforcement identified 21 suspicious packages shipped from Puerto Rico to Lynn and surrounding areas between October 2021 and March 2022. Between January 18, 2022, and March 3, 2022, Mercedes, on six separate occasions, drove to a drop-off site at a three-family house in Lynn (“Lynn three-family”) in a white Jeep Cherokee registered in his name, retrieved a recently mailed package or took possession of it from an associate, and transported it to his apartment in Salem.

The twenty-second suspicious package followed the same pattern. On March 4, 2022, a postal inspector notified Detective Ross Panacopoulos that an individual using an alias had shipped the package from Puerto Rico to the Lynn three-family, addressed to a fictitious person not residing there. On March 7, 2022, a postal inspector intercepted package number 22 at a Lynn post office before delivery. A trained canine alerted to the presence of narcotics inside, and the package remained in the inspector’s custody pending delivery the next day. 

On March 8, 2022, Panacopoulos applied for anticipatory search warrants authorizing searches of Mercedes’ Salem apartment, his Jeep Cherokee, and the Lynn three-family for narcotics and evidence of drug trafficking. The affidavit specified the triggering event as follows: “The triggering event for the execution of these search warrants will be the retrieval of package [no.] 22 from [the Lynn three-family] by [the defendant] or any cohort. Upon retrieving package [no.] 22, a search of [the defendant] or any cohort and/or any packages in their possession will be conducted. Upon finding [the defendant] or any cohort in possession of narcotics, the Search Warrants of the vehicle and other locations will be executed.”

A clerk-magistrate of the Lynn Division of the District Court issued the anticipatory warrants, permitting searches of the specified locations upon the occurrence of the triggering event.

That same day, around 11 a.m., officers surveilling the Lynn three-family observed a letter carrier deliver package number 22 by placing it on the front porch between the two entrance doors to the dwelling. The surveillance team did not observe anyone retrieve the package or exit the house. At some point later, the officers “just looked up, and the package was no longer on the front porch.” Officers then breached a door to the dwelling, searched one of the apartments inside, and discovered package number 22 in the kitchen alongside other boxes containing kilograms of cocaine. Thereafter, at 11:30 a.m., officers executed the warrant at Mercedes’ Salem apartment and seized over two kilograms of cocaine and a large sum of U.S. currency.

On April 25, 2022, a grand jury indicted Mercedes and two codefendants on charges of trafficking in 200 grams or more of cocaine. On August 4, 2023, codefendant Eduin Batista moved to suppress the evidence seized from the Lynn three-family, arguing that the triggering event specified in the anticipatory warrant for that location never occurred. Mercedes and another codefendant joined Batista’s motion. Following an evidentiary hearing, a Superior Court judge granted the motion on April 17, 2024.

Mercedes separately moved on March 26, 2024, to suppress the evidence seized from his apartment pursuant to the same anticipatory warrant. The Commonwealth opposed the motion. After a nonevidentiary hearing, the motion judge granted Mercedes’ motion, ruling that the warrant had been issued as an anticipatory warrant and the triggering event – a condition precedent to execution – had not occurred.

The Commonwealth filed a timely notice of appeal and, on July 12, 2024, an application under Mass. R. Crim. P. 15(a)(2) for leave to pursue an interlocutory appeal from the allowance of Mercedes’ suppression motion. On September 10, 2024, a single justice of the Supreme Judicial Court allowed the application and reported the matter to the full court. 

Analysis

The Court began its analysis by discussing the standard of review for a motion to suppress, emphasizing that the court independently reviews the motion judge’s application of constitutional principles to the facts. See Commonwealth v. Johnson, 119 N.E.3d 669 (Mass. 2019). As with all search warrants, the inquiry focuses on whether the anticipatory warrant at issue complies with the Fourth Amendment to the U.S. Constitution and art. 14 of the Massachusetts Declaration of Rights. Commonwealth v. Staines, 806 N.E.2d 910 (Mass. 2004).

The Court explained that anticipatory search warrants are constitutionally permissible, with “no constitutional impediment” to their use under either federal or state law. Commonwealth v. Soares, 424 N.E.2d 221 (Mass. 1981); see also United States v. Grubbs, 547 U.S. 90 (2006) (holding no categorical Fourth Amendment prohibition against anticipatory warrants). An anticipatory search warrant is defined as one “based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specific place.” 2 W.R. LaFave, Search and Seizure § 3.7(c) (6th ed. 2020). Unlike traditional warrants, which establish probable cause at the time of issuance, anticipatory warrants take effect only upon the occurrence of a specified future event, ensuring that probable cause matures when the search is executed rather than when authorized. See Staines (anticipatory warrant effective at a specific future time, not upon issuance); Commonwealth v. Cruz, 724 N.E.2d 683 (Mass. 2000) (defining anticipatory warrant as one issued “before the necessary events have occurred which will allow a constitutional search of the premises”). 

A core requirement for anticipatory warrants is that their execution must be conditioned on the occurrence of a specific future triggering event, as “only then will the judge’s or clerk-magistrate’s probable cause determination … have reached fruition,” the Court stated. Commonwealth v. Colondres, 27 N.E.3d 1272 (Mass. 2015). This triggering event must be “specified in the affidavit” and “clearly and narrowly defined” to avoid ambiguity or abuse. Id.; see also United States v. Ricciardelli, 998 F.2d 8 (1st Cir. 1993) (magistrate must ensure the triggering event is “both ascertainable and preordained”). This framework serves three critical purposes:

(1)   It requires the magistrate to evaluate the triggering event to confirm that the affidavit establishes “probable cause to believe that the evidence particularized in the warrant will be found when the search is conducted, not when the search is authorized.” Colondres; Staines (once triggering event occurred – such as an undercover officer arranging another cocaine purchase – probable cause existed to search the defendant’s vehicle).

(2)   A clear and narrowly defined triggering event enables a reviewing court to objectively determine whether the condition precedent for the search actually transpired. See Colondres.

(3)   Such precision eliminates opportunities for police to exercise “unfettered discretion” in deciding when to execute the warrant. Commonwealth v. Gauthier, 679 N.E.2d 211 (Mass. 1997); see United States v. Rowland, 145 F.3d 1194 (10th Cir. 1998) (triggering event preserves judicial control over the warrant’s execution).

The Colondres Court addressed whether police may execute an anticipatory warrant without “strict compliance” with the triggering event. It held that execution is authorized upon either strict compliance or “equivalent compliance” with the specified triggering event, ensuring the warrant’s conditions are substantially met while allowing minor deviations that do not undermine probable cause. However, the Colondres Court expressly declined to resolve whether a search could be justified by other information in the affidavit providing probable cause at the time of issuance, independent of the triggering event. It explained: “Because we conclude that there was equivalent compliance with the triggering conditions in this case, we need not consider whether a search is authorized by an anticipatory warrant … where the information in the affidavit provide[s] probable cause at the time the search warrant was approved regardless of whether there was compliance with the triggering conditions.”

The Court noted federal cases involving similar situations, such as United States v. Perkins, 887 F.3d 272 (6th Cir. 2018) (suggesting a search might be reasonable under the Fourth Amendment even without triggering event compliance if circumstances independently constituted probable cause), and United States v. Vigneau, 187 F.3d 70 (1st Cir. 1999) (indicating that nonoccurrence of a delivery-based triggering event was “beside the point” where probable cause existed without it).

Turning to the present case, the Commonwealth conceded that neither the triggering event nor its equivalent occurred, rendering the anticipatory warrant void under established precedent. See Cruz (anticipatory warrant void if triggering events do not transpire); United States v. Vesikuru, 314 F.3d 1116 (9th Cir. 2002); Rowland; United States v. Garcia, 882 F.2d 699 (2d Cir. 1989). Nonetheless, invoking Colondres footnote 11 – which raised the possibility of a warrant being valid where the future triggering event described in the warrant does not occur but other information in the warrant affidavit independently establish probable cause to search, the Commonwealth argued that the search remained valid because other facts in the affidavit established probable cause to search the Lynn three-family house and Mercedes’ apartment at the time of execution.

The Court flatly rejected the adoption of this proposed rule and held that, under art. 14 of the Massachusetts Declaration of Rights, an anticipatory warrant is void and may not be executed absent strict or equivalent compliance with the triggering event, even if the affidavit contains independent probable cause. The Court explained that this stricter protection under art. 14 – beyond what the Fourth Amendment might require – stems from the need to prevent law enforcement from exercising “unfettered discretion to enter private property and search as they please.” Gauthier.

The Court instructed that the warrant must “restrict the officers’ discretion in detecting the occurrence of the [triggering] event to almost ministerial proportions, similar to a search party’s discretion in locating the place to be searched.” Ricciardelli; see Colondres (under equivalent compliance, police remain “very much fettered” by the triggering event’s terms). Judicial officers must set clear, narrowly defined conditions “so as to avoid misunderstanding or manipulation by government agents,” the Court stated. Gauthier. Importantly, the Court explained that this maintains the judicial officer’s control over the search decision, rather than delegating it to police, which is “a fundamental component of a constitutionally reasonable search or seizure guaranteed by art. 14.” Jenkins v. Chief Justice of the Dist. Court Dep’t, 619 N.E.2d 324 (Mass. 1993); see Commonwealth v. Upton, 476 N.E.2d 548 (Mass. 1985) (art. 14 affords “more substantive protection to criminal defendants than does the Fourth Amendment”). Thus, a search executed outside these judicially imposed parameters lacks warrant authorization, and any evidence seized is subject to suppression unless the Commonwealth proves a valid exception to the warrant requirement, according to the Court.

Conclusion

Accordingly, the Court affirmed the order granting Mercedes’ motion to suppress. See: Commonwealth v. Mercedes, 259 N.E.3d 388 (Mass. 2025).  

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