Warrants for Possible Future Crimes: The Use of Anticipatory Search Warrants
What is an Anticipatory Search Warrant?
Typically search warrants are issued under the Fourth Amendment when a magistrate or district judge finds probable cause to believe that a residence, safety deposit box, vehicle, or some other vessel contains evidence of a crime. For example, if a police officer or federal agent requests a warrant to search a home that officer is likely to fill out an affidavit containing facts to support that the residence holds drugs, computers, money, records, notes, photos, or some other type of evidence. Basically, these searches look at facts in the past and present alleging that a residence, or some other vessel, currently holds evidence or contraband.
However, courts also have the power to authorize future searches based upon a belief that items not currently at the target site will arrive there in the future. Such forward-looking warrants are known as anticipatory search warrants. For example, if a shipment of methamphetamine is set to arrive at a residence tomorrow, a judge may authorize a search of that residence tomorrow. The fact that the item is not currently there is not a barrier to the issuance of a search warrant under the Fourth Amendment. See U.S. v. Grubbs 547 US 90 (2006). This opinion has been followed in Texas under Jones v. State 338 SW3d 725 (Tex. App. Houston [1st Dist.] 2011).
The reasoning regarding these warrants is simply that if a judge finds probable cause to believe that evidence or contraband will be at a particular place at a particular time, the fact that such evidence may not be presently there is no barrier to the issuance of a warrant to be executed in the future. It is important to recognize that all warrants by definition authorize searches and seizures in the future. The only distinction between a typical warrant and an anticipatory search warrant lies in the fact that the latter warrants involve evidence that has not arrived at the place as of the time of the judge’s signature upon the warrant. In both types of warrants judges believe it is probable that the evidence will be at the place at the future time of the warrant’s execution.
Anticipatory Search Warrants Relating to Electronically Stored Evidence
However, such warrants are not necessarily an open invitation to future searches. Particularly, hacking software, or malware designed to send instructions to computers to divulge information it would not otherwise divulge, is used in some law enforcement investigations. For example, in the Southern District of Texas a warrant was requested allowing federal agents surreptitiously installed software “designed not only to extract certain stored electronic records but also generate user photographs and location information over a 30 day period.” The legality of warrant was denied under In re Warrant to Search a Target Computer at Premises Unknown, 958 F.Supp.2d 753 (S.D.Tex. 2013). This case involved an identity theft and bank fraud investigation. The warrant was denied because it contained two searches. The first search was to find the end user computer itself and the second search was for (digital information stored or generated by) that computer. Since neither search was purported to occur within the district of issuance of the warrant, it was denied. This is because under Rule 41 of the Federal Rules of Criminal Procedure, warrants issued by federal magistrates may only be executed within the district of issuance.
The Court related that,
“Contrary to the current metaphor often used by Internet-based service providers, digital information is not actually stored in clouds; it resides on a computer or some other form of electronic media that has a physical location. Before that digital information can be accessed by the Government’s computers in this district, a search of the Target Computer must be made. That search takes place, not in the airy nothing of cyberspace, but in physical space with a local habitation and a name. Since the current location of the Target Computer is unknown, it necessarily follows that the current location of the information on the Target Computer is also unknown. This means that the Government’s application cannot satisfy the territorial limits of Rule 41(b)(1).”
While anticipatory search warrants are authorized under state and federal law, they present certain challenges to the Fourth Amendment and to liberty. Not only are judges deciding whether there is reason to believe that evidence will probably be present at a particular place and a particular time, that judge must also be convinced that whatever set of circumstances are necessary for the future arrival of that evidence (also known as a triggering event) will in fact occur. Many cases have addressed whether a triggering event must be stated within a warrant affidavit. That debate rages on.
What is less esoteric is the power that anticipatory warrants give to law enforcement agencies. For example, some agents have run money service businesses under the belief that drug money will be brought to the business in the future for wire transfer to Mexico. Another example, the FBI ran an operation known as Playpen where it operated a child pornographic site for the purpose of sending hacking malware to unknown computers in unknown locations to get such computers to divulge otherwise hidden IP addresses. While the legality and moral legitimacy of such tactics may be debatable, the sheer power of the warrant to be used to hack unknown computers at a future date is a certainly massive concept.
Put simply, the intersection of law enforcement, technology, and the anticipatory search warrant represents an immense growth in the law enforcement lexicon.