Triggered, But Not Close Enough

The Sixth Circuit, like every court, every judge, likes dogs. And so begins its decision in United States v. Perkins.

Many good Fourth Amendment stories begin with dogs. See, e.g., Florida v. Harris, 568 U.S. 237 (2013) (featuring Aldo the dog). And so it is here. This story began when a dog’s sniff alerted law enforcement to a suspicious-smelling package. The dog’s sniff was accurate. The package contained methamphetamine. The intended recipient was “B. PERKINS,” with the address “5831 Rowe Gap RD Belvidere, TN 37306.”

But they went from Aldo the dog to Warren and Brewer, two mutts.

Based on this information, DEA officer Daniel Warren sought an anticipatory warrant to search Perkins’s residence. An anticipatory search warrant differs from a traditional search warrant. Traditional warrants issue upon a showing of probable cause. By contrast, an anticipatory warrant only becomes effective upon the happening of some future event—a “triggering condition”—which establishes probable cause for the search.

Warren went for the Fed Ex scam.

In this case, Warren proposed the following scheme. Fellow DEA officer Kyle Brewer would pose as a FedEx driver. He would knock at the door of 5831 Rowe Gap Road with the malodorous package in hand. And then Brewer would “hand deliver the above mentioned package to PERKINS.” Delivery to Perkins was the warrant’s “triggering event”—if and when Brewer put the package in his hands, officers would then search the residence.

What could possibly go wrong?

But things did not go as planned. The trouble started with a miscommunication. Brewer did not read the warrant. Instead, another officer briefed him on his part—but left out that he needed to hand-deliver the package to Perkins. Accordingly, Brewer went in with the erroneous impression that he simply needed to deliver the package to someone at the residence. So when Brewer knocked and a woman came to the door, Brewer asked her if she was expecting a package. “Yes, we are,” she said.

The “she” was not Perkins, but his fiancée. Perkins wasn’t there and Brewer didn’t bother to ask who the “we” was. Such a good scheme otherwise, though, and they searched the meth house. Except there was one big problem: the triggering event, the one needed to establish probable cause for the anticipatory warrant, didn’t happen. So what?

The government thereafter charged Perkins with possession with intent to distribute methamphetamine. He moved to suppress the evidence obtained from the search of his residence, arguing that the triggering event in the warrant was not satisfied because Brewer did not hand-deliver the package to him. A magistrate judge found that the delivery to Perkins’s fiancée was close enough, but the district court disagreed, granting Perkins’s motion to suppress. The government appeals that ruling.

Close enough works for horseshoes and hand grenades, but for anticipatory search warrants?

The relevant question here, then, is this: Is requiring delivery “to Perkins”—and not to someone else at the residence—a common sense construction of the anticipatory warrant’s triggering event, or an unintended hypertechnicality that the court should overlook?

Judge Amul Thapar held close but no cigar.

In this case, requiring delivery to Perkins is the only common sense reading of the warrant’s triggering event. Hand-deliver “to Perkins” means hand-deliver “to Perkins.” This reading is hardly hypertechnical.

It’s troubling enough that such a beast as an anticipatory warrant exists at all. The Fourth Amendment states that “no Warrants shall issue, but upon probable cause,” and makes no provision for the issuance of a warrant subject to a condition subsequent. But that would mean that schemes like this might not produce the desired outcome, and courts certainly want to encourage agents to get warrants before the search so they aren’t constrained to invoke an exception afterward to find a way not to suppress evidence.

The use of “commonsense” as opposed to hypertechnicality” is one of those trick dichotomies devised to give courts unfettered latitude to rationalize away the agents’ screw-up. After all, common sense is an excuse devoid of reason, while the addition of the prefix “hyper” to technicality makes it insufferably pedantic. Who could expect such slavish adherence to every minute detail, like, you know, delivery to some guy named “Perkins”?

So Perkins, Perkins’ fiancée, whoever came to the door. Close enough, right? Not for Judge Thapar. Not for this panel of the circuit.

By contrast, the government’s interpretation lacks common sense. In its view, there is no need to read the triggering event to require hand-delivery “to Perkins.” Instead, we should just read it to say “to anybody inside the residence with apparent authority to accept delivery.” But the replace-some-words canon of construction has never caught on in the courts.

The government argued that the point of the triggering event was to tie the package to Perkins, because everybody knew Perkins was the bad dude, and since warrants are directed at places, not persons, whoever accepted the overnight meth was sufficient to trigger the search. So she wasn’t Perkins? Wasn’t that good enough?

And there is no reason it should here. Plus, it is not as if requiring delivery “to Perkins” was unintended. Anticipatory warrants triggered by controlled deliveries are nothing new. Here, the government authored a triggering event that called for delivery “to Perkins.” Common sense dictates that the government intended what it wrote.

Therein lies the irony of the decision, that had the government written its warrant application to accommodate delivery to someone other than Perkins at the meth house, and had a magistrate signed off on it, they may well have been all hunky-dory. But they wrote “to Perkins.” They didn’t have to, but they did.

Drugs suppressed. Aldo the dog is sad that he has to work with such mutts.

9 thoughts on “Triggered, But Not Close Enough

  1. B. McLeod

    Another illustration of how making a procedure too complex causes screw ups. They would have been better off to just wait until they could establish probable cause, then get a warrant.

    1. SHG Post author

      That could have required a second trip, if not a phone call. Does their time mean nothing to you?

  2. marc r

    The benevolent State let the one who accepted delivery of the package go free of criminal consequences. No conspiracy or actual possession. Baby steps. Oh, Kisela v Hughes came out against common sense. Baby can barely crawl.

    1. SHG Post author

      You were doing moderately well until Kisela v. Hughes. Why not Plessy v. Ferguson if you’re going totally off the cliff?

  3. Fyodor

    I don’t understand how accepting a package from Federal Express can create probable cause if didn’t exist before. Does anyone not accept Fedex packages addressed to them when they’re delivered?

Comments are closed.