Under what circumstances are anticipatory warrants invalid in Texas?

Chapter 18 of the Texas Code of Criminal Procedure contains many requirements tailored to the particular kind of property to be searched or seized under a warrant. What is notably missing from article 18.01(b) is a "present possession requirement." In other words, there is no specific language requiring that the items sought be at the location when the affidavit is submitted, only that the affidavit establishes sufficient facts to support the requested search.

An example of a "present possession" requirement can be found in article 18.01(c)(3). This article states:

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A search warrant may not be issued under Article 18.02(a)(10) unless the sworn affidavit required by Subsection (b) sets forth sufficient facts to establish probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

Tex. Code Crim. Proc. Ann. art. 18.01(c)(3)(emphasis added).

This article prohibits the issuance of warrants under article 18.02(a)(10)^[4]-searches for property or other items constituting evidence of an offense (also known as "mere evidentiary" warrants)-unless "the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched." Tex. Code Crim. Proc. Ann. art. 18.01(c)(3) (emphasis added). Based on the specificity in article 18.01(c)(3), it appears that if the Legislature had intended that all warrants require present possession, then there would be no need to create a separate rule for warrants under article 18.02(a)(10).

Appellant argues that this heightened probable-cause requirement in article 18.01(c) should apply to the instant warrants because the affidavit in this case uses language from article 18.02(10); namely, "personal property constituting evidence of a criminal offense or constituting evidence tending to show that a particular person committed a criminal

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offense." Appellant argues the use of this language from article 18.02(10) triggers the heightened requirements of article 18.01(c), thereby requiring "present possession."

However, this case does not invoke a "mere evidentiary" warrant under article 18.02(10), but instead involves a narcotics warrant, issued specifically for the seizure of psilocybin, thereby invoking article 18.02(a)(7). Under Tex. Code Crim. Proc. art. 18.02(a)(7), a search warrant may be issued to search for and seize a drug, controlled substance, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of Texas. See Tex. Code Crim. Proc. Ann. art. 18.02(a)(7). Essentially, this article deals specifically with narcotics crimes. Therefore, the requirements of article 18.01(c) are not applicable here.

18.01. Search Warrant

(a) A "search warrant" is a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate or commanding him to search for and photograph a child and to deliver to the magistrate any of the film exposed pursuant to the order.

(b) No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. Except as otherwise provided by this code, the affidavit becomes public information when the search warrant for which the affidavit was presented is executed, and the magistrate's clerk shall make a copy of the affidavit available for public inspection in the clerk's office during normal business hours.

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(c) A search warrant may not be issued under Article 18.02(a)(10) unless the sworn affidavit required by Subsection (b) sets forth sufficient facts to establish probable cause:

(1) that a specific offense has been committed,

(2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and

(3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. Except as provided by Subsections (d), (i), and (j), only a judge of a municipal court of record or a county court who is an attorney licensed by the State of Texas, a statutory county court judge, a district court judge, a judge of the Court of Criminal Appeals, including the presiding judge, a justice of the Supreme Court of Texas, including the chief justice, or a magistrate with jurisdiction over criminal cases serving a district court may issue warrants under Article 18.02(a)(10).

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(f) A search warrant may not be issued pursuant to Article 18.021 of this code unless the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts to establish probable cause:

(1) that a specific offense has been committed;

(2) that a specifically described person has been a victim of the offense;

(3) that evidence of the offense or evidence that a particular person committed the offense can be detected by photographic means; and

(4) that the person to be searched for and photographed is located at the particular place to be searched.

(g) A search warrant may not be issued under Article 18.02(a)(12) unless the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts to establish probable cause that a specific felony offense has been committed and that the specifically described property or items that are to be searched for or seized constitute contraband as defined in Article 59.01 of this code and are located at or on the particular person, place, or thing to be searched.

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18.02. Grounds For Issuance

(a) A search warrant may be issued to search for and seize:

(1) property acquired by theft or in any other manner which makes its acquisition a penal offense;

(2) property specially designed, made, or adapted for or commonly used in the commission of an offense;

(3) arms and munitions kept or prepared for the purposes of insurrection or riot;

(4) weapons prohibited by the Penal Code;

(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;

(6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;

(7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state;

(8) any property the possession of which is prohibited by law;

(9) implements or instruments used in the commission of a crime;

(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;

(11) persons;

(12) contraband subject to forfeiture under Chapter 59 of this code;

(13) electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage; or

(14) a cellular telephone or other wireless communications device, subject to Article 15.

(b) For purposes of Subsection (a)(13):

(1) "Electronic communication" and "wire communication" have the meanings assigned by Article 18A.001.

(2) "Electronic customer data" and "electronic storage" have the meanings assigned by Article 18B.001 .

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(2) "Contraband" means property of any nature, including real, personal, tangible, or intangible, that is:

(A) used in the commission of:

(i) any first or second degree felony under the Penal Code;

(ii) any felony under Section 15.031(b), 21.11, or 38.04 or Chapter 29, 30, 31, 32, 33, 33A, or 35, Penal Code;

(iii) any felony under Chapter 43, Penal Code, except as provided by Paragraph (B);

(iv) any felony under The Securities Act (Title 12, Government Code); or

(v) any offense under Chapter 49, Penal Code, that is punishable as a felony of the third degree or state jail felony, if the defendant has been previously convicted three times of an offense under that chapter;

(B) used or intended to be used in the commission of:

(i) any felony under Chapter 481, Health and Safety Code (Texas Controlled Substances Act);

(ii) any felony under Chapter 483, Health and Safety Code;

(iii) a felony under Chapter 151, Finance Code;

(iv) any felony under Chapter 20A or 34, Penal Code;

(v) a Class A misdemeanor under Subchapter B, Chapter 365, Health and Safety Code, if the defendant has been previously convicted twice of an offense under that subchapter;

(vi) any felony under Chapter 32, Human Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that involves a health care program, as defined by Section 35A.01, Penal Code;

(vii) a Class B misdemeanor under Chapter 522, Business & Commerce Code;

(viii) a Class A misdemeanor under Section 306.051, Business & Commerce Code;

(ix) any offense under Section 42.10, Penal Code;

(x) any offense under Section 46.06(a)(1) or 46.14, Penal Code;

(xi) any offense under Chapter 71, Penal Code;

(xii) any offense under Section 20.05, 20.06, 20.07, 43.04, or 43.05, Penal Code;

(xiii) an offense under Section 326.002, Business & Commerce Code; or

(xiv) a Class A misdemeanor or any felony under Section 545.420, Transportation Code, other than a Class A misdemeanor that is classified as a Class A misdemeanor based solely on conduct constituting a violation of Subsection (e)(2)(B) of that section;

(C) the proceeds gained from the commission of a felony listed in Paragraph (A) or (B) of this subdivision, a misdemeanor listed in Paragraph (B)(vii), (ix), (x), (xi), or (xii) of this subdivision, or a crime of violence;

(D) acquired with proceeds gained from the commission of a felony listed in Paragraph (A) or (B) of this subdivision, a misdemeanor listed in Paragraph (B)(vii), (ix), (x), (xi), or (xii) of this subdivision, or a crime of violence;

(E) used to facilitate or intended to be used to facilitate the commission of a felony under Section 15.031 or Chapter 43, Penal Code; or

(F) used to facilitate or intended to be used to facilitate the commission of an offense under Section 20.05, 20.06, or 20.07 or Chapter 20A, Penal Code.

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18.021. Issuance Of Search Warrant To Photograph Injured Child

(a) A search warrant may be issued to search for and photograph a child who is alleged to be the victim of the offenses of injury to a child as prohibited by Section 22.04, Penal Code; sexual assault of a child as prohibited by Section 22.011(a), Penal Code; aggravated sexual assault of a child as prohibited by Section 22.021, Penal Code; or continuous sexual abuse of young child or disabled individual as prohibited by Section 21.02, Penal Code.

(b) The officer executing the warrant may be accompanied by a photographer who is employed by a law enforcement agency and who acts under the direction of the officer executing the warrant. The photographer is entitled to access to the child in the same manner as the officer executing the warrant.

(c) In addition to the requirements of Subdivisions (1), (4), and (5) of Article 18.04 of this code, a warrant issued under this article shall identify, as near as may be, the child to be located and photographed, shall name or describe, as near as may be, the place or thing to be searched, and shall command any peace officer of the proper county to search for and cause the child to be photographed.

(d) After having located and photographed the child, the peace officer executing the warrant shall take possession of the exposed film and deliver it forthwith to the magistrate. The child may not be removed from the premises on which he or she is located except under Subchapters A and B, Chapter 262, Family Code.

(e) A search warrant under this section shall be executed by a peace officer of the same sex as the alleged victim or, if the officer is not of the same sex as the alleged victim, the peace officer must be assisted by a person of the same sex as the alleged victim. The person assisting an officer under this subsection must be acting under the direction of the officer and must be with the alleged victim during the taking of the photographs.

Unless the article for the search warrant contains a present possession requirement, the Texas Code of Criminal Procedure does not prohibit anticipatory search warrants but instead allows for searches when a magistrate finds probable cause to believe evidence will be found upon the occurrence of some condition precedent event. Accordingly, we agree with the court below that the magistrate had a substantial basis for determining that there was a fair probability that the psilocybin would be found at Appellant's residence. We affirm the judgment of the court below.

In his first two points of error, appellant complains that the trial court erred in denying his motion to suppress the evidence seized during the execution of the federal anticipatory search warrant. According to the appellant, state law prohibits the issuance of anticipatory search warrants. Furthermore, appellant claims that state law also prohibits the seizure of certain items gathered in his apartment during the execution of the federal warrant. Therefore, appellant claims that the trial court committed reversible error by denying his motion to suppress.

Article 18.01 of the Code of Criminal Procedure sets forth the conditions under which a search warrant may be issued. That article states that a search warrant

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may be issued only if there is a sworn affidavit setting forth facts sufficient to establish probable cause "that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place or thing to be searched." TEX. CODE CRIM. PROC. ANN. Art. 18.01(c)(3) (Vernon Supp. 1998). In his first point of error, appellant relies on this language to challenge the search warrant issued by Judge Milloy. Appellant asserts that agent M's affidavit expressly stated that at the time the warrant was being sought, the breadmaker was not located at the place to be searched, but rather was in the possession of the federal agents. Appellant contends that the warrant violates the express requirement of article 18.01.

The appellant is correct in his assertion that the federal search warrant did not meet the requirements of article 18.01. However, the Court of Criminal Appeals has held that a search warrant issued by a federal magistrate and directed to a federal officer is not governed by the requirements of article 18.01. See State v. Toone, 872 S.W.2d 750, 752 (Tex. Crim. App. 1994). Accordingly, point of error one is overruled.

Also not applicable is Mahmoudi. In that case, Mahmoudi challenged a federal anticipatory search warrant in state court. 999 S.W.2d 69, 71. Mahmoudi argued that article 18.01(c)(3) requires search warrants be supported by affidavits establishing probable cause to believe evidentiary items be "located at … the place … to be searched." Id. The Fourteenth Court of Appeals, in dicta, stated, "[T]he appellant is correct in his assertion that the federal search warrant did not meet the requirements of article 18.01." Id. However, the court overruled Mahmoudi's argument because his warrant was a federal warrant directed to a federal agent, and article 18.01 of the Texas Code of Criminal Procedure does not apply to federal search warrants. Id. at 72; see also Toone, 872 S.W.2d at 752.

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Notwithstanding the dicta in Mahmoudi, the court below was not referencing all anticipatory warrants, but only a "mere evidentiary warrant" implicating articles 18.01(c)(3) and 18.02(a)(10). As stated above, the warrant here invoked article 18.02(a)(7), which deals specifically with narcotics crimes. Because Appellant's warrant falls under a different provision, his reliance on Mahmoudi is misplaced.

Prior to the state court trial, Toone filed a motion to suppress the cocaine arguing that (1) the federal search warrant affidavit contained stale information, and (2) the search warrant was issued prior to the commission of any offense. The amount of delay that will make information stale for search warrant purposes depends upon the particular facts of a case, including the nature of criminal activity and the type of evidence sought. Ellis v. State, 722 S.W.2d 192, 196 (Tex.App.--Dallas 1986, no pet.). Mechanically counting days is of little assistance in the determination of staleness; rather, common sense and reasonableness must prevail, with considerable deference given to the magistrate's judgment. Id. Thus, our analysis will focus on Toone's second argument.

Specifically, Toone complained of the following language in the search warrant:

... there will be concealed a certain person or property, namely evidence, fruits, and instrumentalities of violations of Title 18, United States Code, Section 2251 and 2252....

(Emphasis added). Toone argued that the words "will be" made the warrant an "anticipatory search warrant" by indicating that probable cause would exist in the future. He contended that probable cause did not exist at the time the warrant issued because the contraband was not then on the premises. Therefore, he asserts, the warrant was invalid under article 18.01(b) and (c) of the Texas Code of Criminal Procedure. ² The trial court agreed and granted the motion to suppress.

We turn now to an example under federal law of a legal anticipatory search warrant. In United States v. Wylie, the Fifth Circuit approved a magistrate's issuance of an anticipatory search warrant that authorized the search of premises when it was known that the contraband was on a sure course to its destination there. United States v. Wylie, 919 F.2d 969, 974 (5th Cir.1990); see also United States v. Hale, 784 F.2d 1465, 1468 (9th Cir.), (prior issuance of warrant permissible for four envelopes containing magazines and photographs in violation of 18 U.S.C. § 2252(a)(2) because they were on a sure course to their destination in the mail), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986). In Wylie, the Fifth Circuit cites a Second Circuit case in which Drug Enforcement Association agents applied for and received an anticipatory warrant to search an apartment for cocaine, traces of cocaine, currency, drug records, and narcotics paraphernalia. United States v. Garcia, 882 F.2d 699, 701 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed. 336 (1989). Execution of this warrant was contingent upon the delivery of cocaine by two men operating in cooperation with the DEA agents. Garcia, 882 F.2d at 701. In rejecting the argument that an anticipatory search warrant was unconstitutional per se, the court held that the warrant was based on probable cause. The court stated that when a government official presents independent evidence indicating that delivery of contraband will, or is likely to, occur, and when the magistrate conditions the warrant on that delivery, there is sufficient probable cause to uphold the warrant. Id. at 702. The fact that the contraband is not presently located at the place is immaterial so long as there is probable cause to believe that it will be there when the warrant is executed. Id. The court further explained that the affidavits supporting the application for an anticipatory warrant must show: (1) the agent believes a delivery of contraband is going to occur, (2) how the agent obtained this belief, (3) how reliable his sources are, and (4) what part the government agents will play in the delivery. Id. at 703.

In the present case, there are even stronger facts supporting probable cause than in Garcia. In his affidavit, Meyers states that he received the requests from Toone, packaged the videotapes and magazines, and would personally deliver the items. No third parties were necessary to the completion of the delivery. This delivery was under the total control of the government.

Accordingly, we conclude that the federal search warrant based on the postal inspector's affidavit was valid. Because the federal officers were properly on the premises, the seizure of the cocaine was legal.

Alternatively, assuming arguendo, that the cocaine seizure did violate Texas law, we hold that because the federal search warrant was valid, the cocaine may be used in a state proceeding. To reach this conclusion, we review the "silver-platter" doctrine and illustrate how, in Toone's case, the reverse applies.

Historically, federal standards for lawful searches and seizures were usually more protective than the standards followed by the states. Because state officers were not

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subject to the Fourth Amendment and the exclusionary rule, the Supreme Court in Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949), held that evidence independently obtained by state officials in compliance with state law, but in violation of federal law, could be handed over on a "silver platter" to federal agents for use in a federal criminal trial. The underlying concept of the silver-platter doctrine is that protections afforded by the constitution of a sovereign entity control the actions only of the agents of that sovereign entity. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921).

The essence of the silver-platter doctrine is still pertinent today. Recently, in United States v. McKeever, the Fifth Circuit held that evidence seized under a state warrant obtained by state agents is admissible in a federal court even if the state warrant fails to satisfy federal statutory requirements. McKeever, 905 F.2d 829, 832 (5th Cir.1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 790, 112 L.Ed.2d 852 (1991).

In Toone's case we have the reverse scenario and, apparently, a case of first impression in Texas. Here, we have federal agents legally obtaining evidence under federal law but in assumed violation of state law. We proceed with this analysis with the recent case of Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), in mind. There, the Court of Criminal Appeals held that when analyzing and interpreting article I, section 9 of the Texas Constitution, we are not bound by Supreme Court decisions addressing the comparable Fourth Amendment issue. The court recognized that state constitutions cannot subtract from the rights guaranteed by the United States Constitution, but they can provide additional rights to their citizens. Id. at 690. Other jurisdictions have held that state officials could use such evidence in state criminal proceedings. United States v. Lester, 647 F.2d 869, 875 (8th Cir.1981); State v. Mollica, 114 N.J. 329, 554 A.2d 1315, 1328 (1989); State v. Gwinner, 59 Wash.App. 119, 796 P.2d 728, 731 (1990).

In Mollica, the New Jersey Supreme Court stated, "[w]e endorse the principle that federal officers acting lawfully and in conformity to federal authority are unconstrained by the State Constitution, and may turn over to state law enforcement officers incriminating evidence, the seizure of which would have violated state constitutional standards." Mollica, 554 A.2d at 1328. The court cautioned, however, that the federal agents may not act as agents of the state police or under "color of state law." Id. at 1329. Evidence of antecedent mutual planning, joint operations, cooperative investigations, or mutual assistance between federal and state officers may sufficiently establish agency and serve to bring the conduct of the federal agents under the color of state law. Conversely, mere contact, awareness of ongoing investigations, or the exchange of information may not transform the relationship into one of agency. Id. In Toone's case, there is no evidence that state officers participated in any way in either the issuance or execution of the search warrant.

Because our state constitution has inherent jurisdictional limitations and can provide broader protections than those found in the United States Constitution, the application of our state constitution to the officers of another jurisdiction would disserve the principles of federalism and comity without properly advancing legitimate state interests. No deterrence of a state official's conduct is frustrated, because only the conduct of federal officials is involved. Further, Toone's individual constitutional rights were not violated because no state official or person acting under color of state law violated the state constitution. Consequently, we hold that evidence lawfully obtained by federal officers acting under a valid federal search warrant is admissible in state criminal proceedings. Accordingly, we sustain the State's point of error. The trial court erred in granting Toone's motion to suppress. We reverse the trial court's February 6, 1991, suppression order and remand this cause to the trial court for proceedings consistent with this opinion.