An anticipatory warrant is a type of search warrant that may be issued when law enforcement has probable cause or evidence that leads them to believe that a particular crime will occur at a certain time and place in the future.

For example, suppose that law enforcement has obtained an anticipatory warrant because they discovered a pattern of a person possibly forging and cashing checks at a certain bank. Then, the next time the person goes to that bank and cashes their potentially forged checks, they may be able to search their wallet before the deposit is made or can arrest them.

However, in order to obtain an anticipatory warrant, there are specific requirements that must be met before law enforcement will be issued such a warrant.

What are the Requirements for Issuing an Anticipatory Warrant?

When a law enforcement officer needs to conduct a search in advance of a particular crime that they believe will happen at some point in the future, then they must ask the court for an anticipatory warrant. Ordinarily, law enforcement obtains a standard search warrant only after a crime has occurred.

In order to receive an anticipatory warrant, the officer will be required to present an affidavit (i.e., a written statement that contains an oath) to a judge as part of their request for the warrant. The affidavit they submit must provide evidence that establishes the following two factors:

  • First, that there is probable cause to believe that a particular crime will take place at a specific location in the future; and
  • Second, that there is probable cause that a “triggering condition” will occur to create the crime.

It is important to keep in mind that in the legal definition of an anticipatory warrant, the word “time” refers to the “triggering condition” mentioned above in the second element.

The next sections will provide greater details regarding the requirements of an anticipatory warrant:

  • Defining Probable Cause: Concrete evidence that proves a crime was committed may not exist until a person follows through with that crime or is caught in the act. On the other hand, probable cause may exist before the crime is committed.

    • For example, if the police are surveilling a person and while watching them discover that the person is going to purchase drugs and bring them home, then this would give them the probable cause required to ask a judge for an anticipatory warrant. If the judge grants the warrant, then the police will be allowed to conduct a search immediately after the person brings the drugs home.
  • The Triggering Condition: As previously mentioned, one of the factors required as part of the affidavit to obtain an anticipatory warrant is probable cause that a triggering condition exists. In returning to the above example, the “triggering condition” will have occurred when the individual brought the drugs they had purchased home.

    • This single action would then trigger the effects of the anticipatory warrant, which will allow the police to search their home without fear of violating the principles set out in the Fourth Amendment to the U.S. Constitution, namely, protection against unreasonable searches and seizures.
  • The Judge’s Decision: In addition to all of the details already discussed, a judge will also have to make a decision about whether to grant or deny the anticipatory warrant request submitted by law enforcement. The judge must execute sound judgment over certain factors before they can make their final decision.

    • For instance, at the time that law enforcement presents the affidavit, the judge must determine whether it is currently probable that either the contraband, other evidence of a crime, or a fugitive will be at the specific location identified in the affidavit. If so, whether the probable cause of the triggering event will also be sufficient at the time that the police will be permitted to execute the anticipatory warrant

Do I Need to Hire a Lawyer to Handle an Anticipatory Warrant Issue?

If you, your home, or other property that you own was searched on the basis of the police obtaining an anticipatory warrant and you believe that there was not a legitimate reason for their search, then you should consider contacting a local criminal defense attorney as soon as possible.

An experienced criminal defense attorney will be able to conduct an analysis of the evidence, can explain the potential issues surrounding the warrant to you, and can assist you with filing an action in court if the search or warrant was not executed properly.
In addition, your attorney can help ensure that your Fourth Amendment rights are being adequately protected. An attorney will also provide legal advice on whether there are any defenses available to use against the search evidence being presented against you and can assist you in filing a motion to suppress any illegally obtained evidence.