Texas Stamp


PD-0388-21 09/15/2021

“Are all anticipatory search warrants are prohibited under Texas law?”

Police in Oregon discovered that Parker shipped a package of illegal drugs to himself in Texas via UPS. Oregon police then notified Texas police about the expected shipment. A Texas detective obtained a warrant to arrest Parker and to search at the delivery location upon confirmation that the package was delivered. When the confirmation was received, the drugs were seized and Parker was arrested. After being charged, his motion to suppress was denied, and later he pleaded guilty.

On appeal, Parker claimed that Texas law—Tex. Code Crim. Proc. art. 18.01(b)—prohibits all anticipatory search warrants. According to Parker, Article 18.01(b) requires that “probable cause does in fact exist” for a warrant to be issued. Here, probable cause did not exist when the warrant here issued because it was contingent on a future event, namely—the delivery of a package not yet delievered when the warrant issued. The court of appeals observed that this issue has not been decided, but it turned to U.S. Supreme Court precedent that allows anticipatory warrants. The Supreme Court explained that all warrants are essentially anticipatory because they seek authorization to search based on a prediction that there is probable cause the items will be there when the warrant is executed. U.S. v. Grubbs, 547 U.S. 90 (2006). An anticipatory search warrant is no different; law enforcement only need to believe that the contraband will be there when it is executed. Therefore, a triggering condition is proper. Applying this rationale, the court stated that, when the Legislature limits the authority to issue warrants, it does so expressly. There is no express limitation in Article 18.01(b). The court of appeals affirmed the trial court’s ruling.

Expanding on his lower-court argument, Parker contends that “Texas law requires that items to be searched for or seized are at the designated location ‘at the time the search warrant is issued.’” Davis v. State, 202 S.W.3d 149, 155 (Tex. Crim. App. 2006). He adds that the two Texas cases that have addressed the issue involved federal judges who were not bound by Article 18.01(b). State v. Toole, 827 S.W.2d 750 (Tex. Crim. App. 1994); Mahmoudi v. State, 999 S.W.2d 69 (Tex. App.—Houston [14th Dist.] 1999). He urges the Court of Criminal Appeals to avoid a reflexive application of federalism when interpreting Texas law. Lastly, he points out that anticipatory warrants are unnecessary because the detective here could have locked down the house and then obtained a warrant.

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