The “Anticipatory” Search Warrant must have a “Triggering Event” (in Hawaii).

State v. Curtis (HSC May 15, 2017)

Background. A FedEx employee in Honolulu opened a package suspected to contain narcotics. The package was addressed to a “Jennifer Robertson” at an address on Kauai. FedEx notified the DEA, which notified the Kauai Police Department. KPD determined that the package contained eight pounds of marijuana. The police, with court approval, installed a tracking device in the package that would inform them where the package was located and when it would be opened. The police also applied for an anticipatory search warrant to search the premises.

In the application for search warrant, the police stated that it planned to conduct a controlled delivery of the package. Once it was determined where the package would be sent, received by persons wanting it, and opened, the police sought authorization to search within 48 hours of delivery of the package that premises—wherever that may be. The anticipatory search warrant was issued. The warrant authorized the police to search the premises “forthwith” and also allowed the police to search “within 10 days of” the date of the authorization.

That same day, KPD conducted a controlled delivery. A police officer posing as a FedEx delivery person delivered it at the address on the package. Jason Curtis received the package. The officer-deliveryman saw Melissa Hall in the house and asked if that was “Jennifer Robertson.” Curtis said it was and signed the package. Five minutes after delivery, the device indicated that the package had been opened. In response, the police went to the house and searched it. They seized the marijuana in the package, some paraphernalia in the house, and $1,000 cash. Curtis, Hall, and another person in the house, Genevieve Walker, were charged with commercial promoting of marijuana in the 2d degree, paraphernalia, and promoting a detrimental drug in the 2d degree.

Curtis and Hall moved to suppress the evidence obtained in the case on the grounds that the anticipatory warrant was unconstitutional. The circuit court denied the motion, but noted that the search warrant itself was “very, very sloppy and apparently hastily put together.” Curtis and Hall entered amended no-contest pleas reserving the right to appeal. They were fined $5,000. The charges against Walker with dismissed. Curtis and Hall appealed. The ICA affirmed. Curtis and Hall petitioned for cert.

The “Anticipatory” Search Warrant is not a Violation of the Fourth Amendment. In United States v. Grubbs, 547 U.S. 90 (2006), the Supreme Court of the United States observed that an anticipatory warrant is “a warrant based on an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” Id. at 94. An anticipatory warrant authorizes a search after a “triggering event,” i.e. after the occurrence of a specific future event, such as the delivery of a package. Id. Thus, it is issued before the necessary events happen and if that event does not happen, the warrant is void. State v. Scott, 87 Hawaii 80, 80 n. 1, 951 P.2d 1243, 1243 n. 1 (1998).

Law enforcement tried anticipatory search warrants in the 1990s in Scott, and even though the ICA initially recognized its constitutionality, the HSC quashed it on statutory grounds. The HSC held that HRS § 803-31 and HRPP Rule 41(a) prohibited anticipatory search warrants because HRS § 803-31 limited search warrants to searches of articles “in the possession of the person whose premises are to be searched.” Id. at 84, 951 P.2d at 1247. HRPP Rule 41 also limited search warrants to authorize intrusions “within the circuit wherein the property sought is located.” Id. In response to Scott, the legislature amended the statute and the rules were also amended to pave the way for anticipatory warrants.

Then came United States v. Grubbs, 547 U.S. 90 (2006). There, the Supreme Court of the United States held that anticipatory search warrants do not violate the Fourth Amendment. Id. at 94. It further held that the “triggering event” or condition need not be included in the warrant itself. Id. at 97.

. . . and, Starting Now, isn’t a Violation of the Hawaii Constitution. With that as a backdrop, the HSC examined if the anticipatory search warrant violated Haw. Const. Art. I, Sec. 7. It doesn’t. The HSC held that “anticipatory search warrants are valid under the Hawaii Constitution when supported by probable cause because they are consistent with the requirements of article I, section 7, and they incentivize police officers to obtain warrants prior to conducting searches.” The HSC first noted that nothing in the constitutional clause prohibits triggering events in the future. The warrant simply must be based on probable cause and have particularity to describe the place to be searched and property to be seized. State v. Woolsey, 71 Haw. 638, 640, 802 P.2d 478, 479 (1990). Second, the anticipatory warrant is no different than a regular-kine warrant conceptually: a neutral judge must determine “(1) that is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.” Grubbs, 547 U.S. at 96. Finally, an anticipatory warrant incentivizes police officers to get a warrant in the first place rather hope that a warrantless search meets some exception.

But Anticipatory Warrants in Hawaii need a Triggering Event Described in the Warrant Itself. Unlike the Fourth Amendment, the Hawaii Constitution has “a specific provision expressly establishing the right to privacy.”  State v. Mallan, 86 Hawaii 440, 448, 950 P.2d 178, 186 (1998). Moreover, Article 1, Section 7 prohibits unreasonable searches, seizures, and “invasions of privacy.” This means “that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary.” State v. Lopez, 78 Hawaii 443, 446, 896 P.2d 889, 901 (1995). Thus, the HSC held that in order to ensure the governmental intrusion is no greater than absolutely necessary, anticipatory search warrants must identify and contain the triggering event in the text of the search warrant itself.

And so—there being no triggering event in the warrant itself—the HSC vacated the ICA’s decision and remanded it back to Kauai for further proceedings.

A Hypothetical. What if Curtis and Hall signed the package, got super paranoid, drove out to Barking Sands and decided to open the package in their car? What if it was a party package and went out to someone else’s house to open it? Would the warrant be void? Would it authorize the police to search the car? Barking Sands? The party house? Now that anticipatory warrants are part of our legal landscape, you can expect this issue to come up some day.