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What Is an Anticipatory Warrant?

An anticipatory warrant is a type of search warrant.  The main difference is that anticipatory warrants are made in anticipation of a crime. They are based on the fact that evidence of a crime will occur at a certain time in place in the future.  

For example, a crime may not be committed or no evidence may exist until criminal A buys and brings drugs into his home. If the police know when and where criminal A will buy and bring those drugs, they can ask a Judge to issue them an anticipatory warrant.  This will allow the police to search criminal A's home immediately after he brings the drugs home, instead of waiting for a normal search warrant. If properly ordered, an anticipatory warrant will not violate the 4th Amendment's protection against unreasonable searches and seizures.

What Is Needed for an Anticipatory Warrant?

As mentioned above, a law enforcement officer will go to a Judge with an affidavit to get an anticipatory warrant. In that affidavit, the law enforcement officer must show some evidence to establish:

  1. Probable cause that some future crime will occur at a specific place, and
  2. Probable cause that a "triggering condition" will occur to create the crime.

Probable cause is generally a fair probability that the crime, evidence, or triggering condition will be found at the particular place at that time. Each anticipatory warrant also has to have a triggering condition. Using the example above, the triggering condition would be when criminal A bought drugs and brought them home. The affidavit does not have to say that the crime or evidence is currently present when the law enforcement officer asks a Judge to order an anticipatory warrant.

In addition to what is contained in the law enforcement officer's affidavit, a Judge who orders an anticipatory warrant will also have to decide that:

  1. It is currently probable that
  2. Contraband, evidence of a crime, or a fugitive will be on the specific location when
  3. The anticipatory warrant will be executed by the police.

Do I Need an Attorney to Handle an Anticipatory Warrant Issue?

If your home or property was searched based on an anticipatory warrant, and you think that the police had no basis for their search, it is highly recommended that you contact a criminal defense attorney. Only an attorney will be able to explain the issues, help in your defense, and assist in suppressing any evidence that was illegally obtained.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 06-10-2015 03:18 PM PDT

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