So begins the Sixth Circuit's opinion in United States v. Perkins, where the defective execution of an anticipatory search warrant resulted in suppression of methamphetamine.
"Many good Fourth Amendment stories begin with dogs" and, so it is, a dog's sniff alerted law enforcement to the presence of methamphetamine in a package addressed to "B. PERKINS" at an address in Belvidere, Tennessee. B. PERKINS, according to information known to law enforcement and a trusted confidential informant, was a meth trafficker. A DEA officer obtained an anticipatory warrant to search Perkins' residence.
An anticipatory search warrant is one for which probable cause is contingent upon an anticipated future event; in other words, if this happens, it will establish probable cause for the warrant that may then be executed. The contingent event, as set out in the warrant, was for a DEA officer, a Brewer, to "hand deliver the above mentioned package to PERKINS." So, upon hand-delivery of the package to PERKINS the contingency would be fulfilled, and the warrant effective.
But things got fouled up, perhaps because agent Brewer didn't read the warrant the court suggests, and the package was not delivered to PERKINS but to an unknown woman (later determined to be Perkins' fiancee) who answered the door. Nevertheless, law enforcement then executed the search warrant and recovered at least the meth in the package.
The government's argument was that hand-delivery to the unknown woman at the residence was close enough. Not good enough the Court ruled:
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.
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. And there is no reason it should here. Plus, it is not as if requiring delivery "to Perkins" was unintended.
And, well, so it goes.
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