We had a tracker placed on a drug shipment and knew where it was being shipped then obtained a warrant to be executed when the shipment arrived. A large amount of drugs were seized. The judge suppressed the search warrant based upon a law review article by Gerald S. Reamey entitled, "The Promise of Things to Come: Anticipatory Warrants in Texas." I am appealing the decision and looking for Texas case law.

Look at Toone, 872 S.W.2d 750 and the underlying court of appeals opinion. They directly discuss anticipatory search warrants.

Patrick,

I read. Prof. Reamey's article, and I think he actually lays out an argument for why a warrant anticipating the arrival of a drug shipment would be legal. Anyone who would like to read his paper can find it here. It's a very valuable read.

Anticipatory warrants, that is, warrants to seize things that will be in a certain place at a certain time in the future, are, according to the U.S. Supreme Court, constitutional. U.S. v. Grubbs, 547 U.S. 90.

Toone is of limited value to you here, because the evidence in that case was seized pursuant to a federal warrant. There's no case in Texas I can find that directly answers the question as to whether or not anticipatory state warrants are valid. Although several point out that it has not been directly decided.

Anticipatory warrants for "mere evidence" under 18.01(c) are likely not valid because it requires probable cause that a crime has been committed and that the property to be searched for is located at that particular place, in the present tense, not in the future tense. So anticipatory warrants for mere evidence, as Professor Reamey points out, are likely invalid.

However, a warrant issued for a large shipment of drugs that will be arriving at a given time and at a given place could be characterized as an 18.02(7) warrant for a drug or controlled substance, or even an 18.02(8) warrant for any property the possession of which is prohibited by law. See Chavez v. State, 769 S.W. 2d 284 (Tex. App. -- Houston [1st. Dist] 1989), Wall v. State, S.W. 2d 686 (Tex. App. -- Corpus Christi 1994), Gonzalez-valdez v. State, No. 01-93-00380-CR (Tex. App. -- Houston [1st Dist.] May 5, 1994).

Professor Reamey himself says in that article that an anticipatory warrant that is not for "mere evidence" would probably be upheld, since it doesn't have to meet the stricter guidelines of 18.01(c).

I guess one way or another, after your appeal, we'll have some more case law on it!

Good luck!