
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1424                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 STEVEN RICCIARDELLI,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Andrew A. Caffrey, Senior U. S. District Judge]                                         ___________________________                              _________________________                                        Before                             Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                              _________________________               John H. LaChance, with whom LaChance & Whatley was on brief,               ________________            __________________          for appellant.               Robert E. Richardson, Assistant United States Attorney, with               ____________________          whom A.  John Pappalardo, United  States Attorney, was  on brief,               ___________________          for appellee.                              _________________________                                    June 22, 1993                              _________________________                    SELYA,  Circuit  Judge.     Defendant-appellant  Steven                    SELYA,  Circuit  Judge.                            ______________          Ricciardelli  was convicted  at  a bench  trial  of violating  18          U.S.C.     2252(a)(2) (1988),  a  statute  that criminalizes  the          knowing  receipt through the mails  of a "visual depiction [that]          involves the use of a minor engaging in sexually explicit conduct          .  . .  ."   Ricciardelli appeals,  contending that  the district          court erred in denying  his motion to suppress  evidence obtained          pursuant  to the execution of an anticipatory search warrant.  We          conclude  that, although  the  Constitution  does not  altogether          proscribe  the use  of  such anticipatory  warrants, the  warrant          employed  here  was  constitutionally  infirm.    We,  therefore,          reverse.          I.  BACKGROUND          I.  BACKGROUND                    In 1988,  Houston police breathed life  into a moribund          child   pornography  investigation   by  giving   federal  postal          inspectors a customer  list unearthed  during a 1975  probe of  a          suspected pornography distributor.  Appellant's  name appeared on          the  list.     The  postal  inspectors   subsequently  spawned  a          fictitious "front" company,  Globe-Tex Specialties, and  targeted          Ricciardelli   in   a  sting   operation.     After   preliminary          correspondence elicited  interest on Ricciardelli's  part, Globe-          Tex  sent him a catalog from which he ordered several videotapes.          Globe-Tex  notified  him  that  only  one  tape  was  immediately          available and promised to mail it forthwith.                    On the day prior to the  scheduled delivery, the postal          inspectors applied for,  and a magistrate judge issued,  a search                                          2          warrant.   The  warrant  authorized the  investigators to  search          appellant's residence for, inter alia, correspondence, documents,                                     _____ ____          and  objects related  to  contacts with  either Globe-Tex  or the          Houston pornography  dealer.   By its  express terms, the  search          warrant would "not be  effective until after delivery by  mail to          and  receipt by  Steven  L. Ricciardelli  of  the .  . .  package          containing the videotape."                    The day after the warrant was issued, postal inspectors          gave  the package  containing  the videotape  to  the local  post          office  for delivery.  A  return receipt, affixed  to the parcel,          required that appellant sign for it.  The letter carrier tried to          deliver  the  package  that  day  but  appellant  was  not  home.          Following standard  practice, the  postman left  a notice on  the          premises indicating that appellant could collect the  item at the          post office.  That afternoon, appellant retrieved the package and          returned  to  his  home.    About thirty  minutes  later,  postal          inspectors executed the  warrant, recovering the videotape,  some          correspondence, and  a number  of other  films and  magazines not          mentioned in the warrant.                    Appellant was indicted.   The district  court summarily          denied  his motion  to  suppress the  materials  seized from  his          dwelling.   Subsequently, appellant  stipulated to  the pertinent          facts and the judge found him guilty.  This appeal ensued.          II.  ANALYSIS          II.  ANALYSIS                    We  divide our analysis of this case into segments.  We          first  discuss  the  constitutionality  of   anticipatory  search                                          3          warrants  as  a  general matter.    We  then  turn to  specifics,          discussing certain  alleged deficiencies in the  warrant obtained          by  the postal inspectors.  We end by addressing the government's          contentions  that  appellant's submissiveness  and/or  the postal          inspectors' good faith palliated any defects in the warrant.                          A.  Anticipatory Search Warrants.                          A.  Anticipatory Search Warrants.                              ____________________________                    At the  outset, appellant  seeks to bowl  a ten-strike:          he  asks us to  rule that so-called  anticipatory search warrants          are  per  se  unconstitutional.   This  initiative  presents    a               ___  __          question of first impression in this circuit.1                    Anticipatory  search warrants are  peculiar to property          in transit.   Such warrants provide a solution  to a dilemma that          has long vexed  law enforcement  agencies:  whether,  on the  one          hand,  to allow the delivery of contraband to be completed before          obtaining  a  search warrant,  thus  risking  the destruction  or          dispersement  of  evidence in  the ensuing  interval, or,  on the          other hand,  seizing  the contraband  on  its arrival  without  a          warrant,  thus  risking  suppression.    Anticipatory warrants             warrants  that are issued in advance of the receipt of particular          property  at the premises designated  in the warrant2    strike a                                        ____________________               1We  cannot escape  this issue  for, if  anticipatory search          warrants are valid at all, the rules pertaining to their issuance          will necessarily  determine the legal sufficiency  of the warrant          obtained in this case.               2To be sure, an anticipatory  warrant can be directed toward          the  search of  a  person  instead  of  a place.    For  ease  in          reference, however, we speak  throughout this opinion of searches          of  places rather than of persons (although we note that the same          principles apply in either case).                                          4          third  chord,  protecting  privacy rights  by  requiring  advance          judicial  approval  of  a  planned  search  while  simultaneously          satisfying legitimate  law enforcement needs.   See United States                                                          ___ _____________          v.  Garcia, 882 F.2d 699,  703 (2d Cir.),  cert. denied, 493 U.S.              ______                                 _____ ______          943 (1989); see also 2 Wayne LaFave, Search and Seizure   3.7(c),                      ___ ____                 __________________          at 97 (1987).                    Appellant's  constitutional challenge  to  the  use  of          anticipatory  warrants proceeds  under  the aegis  of the  Fourth          Amendment.   His  theory  is epibolic.    First, he  remarks  the          obvious    that  a warrant  can  issue only  "upon  a showing  of          probable cause," U.S. Const.  Amend. IV   and interprets  this as          requiring probable  cause to believe  that the  contraband to  be          seized  is in  the place  to be  searched at  the time  a warrant          issues.   He then erects a second proposition on this problematic          pedestal,   professing   that   a    magistrate   can   have   no          constitutionally sufficient basis for issuing a warrant at a time          when the contraband is  elsewhere and, presumably, probable cause          does not exist.  In our view, appellant's theory misconstrues the          meaning of probable cause.                    The probable  cause doctrine does not  require that the          contraband to be seized must presently be located at the premises          to be searched, only that there is probable cause to believe that          a crime  has been (or is being) committed and that evidence of it          can likely  be found at  the described locus  at the time  of the                                                        __ ___ ____  __ ___          search.  See United States v. Aguirre, 839  F.2d 854, 857-58 (1st          ______   ___ _____________    _______          Cir. 1987).  "Probability is the touchstone [of probable cause] .                                          5          . . ."   United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.                   _____________    ________          1987) (collecting cases).   In the stereotypical  case, an item's          current location creates  a probability  that it will  be at  the          same  location when  the search  is executed    but there  are no          guarantees.   The suspect  might move  or destroy  the contraband          before the warrant  is executed.   Nevertheless, so  long as  the          requisite probability exists, the  possibility that things  might                    ___________              ___________          go awry does not forestall the issuance of a warrant.  After all,          "[p]robable  cause  need not  be  tantamount  to proof  beyond  a          reasonable doubt."   United  States  v. Hoffman,  832 F.2d  1299,                               ______________     _______          1305-06  (1st Cir. 1987); accord Illinois v. Gates, 462 U.S. 213,                                    ______ ________    _____          238 (1983) (requiring "a  fair probability that contraband .  . .          will be found in a particular place"); United States v. Caggiano,                                                 _____________    ________          899 F.2d 99, 102 (1st Cir. 1990) (collecting cases).                    Seen from this perspective,  it is difficult to discern          the constitutional objection to an anticipatory warrant.  In many          cases, the facts put forward in support of an anticipatory search          warrant predicated  on the  planned delivery  of contraband  to a          particular  location  establish  a  greater  likelihood  that the          contraband will  be found there at the  time of the search (which          will be  contemporaneous with the  arrival of the  contraband, or          nearly  so)  than do  facts  put  forward in  support  of  a more          conventional  search  warrant  predicated  on  the  known  recent          location of  contraband at the  proposed search site.   Moreover,          the  method  of  the  Fourth  Amendment    inserting  a  neutral,          detached judicial officer as a buffer between a citizen's privacy                                          6          rights and  potential government overreaching    works equally as          well  in  connection  with  anticipatory  warrants.    In  either          instance, contemporary  or anticipatory,  the focal point  of the          magistrate's inquiry is  whether there is probable cause to think          that the  contraband will be at  the place to be  searched at the          time of  the contemplated intrusion.   That the  event justifying          the  intrusion  has  not  yet  occurred   does  not  distort  the          decisionmaking process.  Rather, the magistrate must simply widen          his  horizons  to  take  into account  the  likelihood  that  the          triggering  event  will occur  on  schedule and  as  predicted in          making his probable cause determination.3                    Mindful   of   these   considerations,   we   find   it          unsurprising that  every circuit  to have addressed  the question          has held that anticipatory  search warrants are not categorically          unconstitutional.   See,  e.g., United  States v.  Tagbering, 985                              ___   ____  ______________     _________          F.2d 946, 950  (8th Cir. 1993); United States v.  Wylie, 919 F.2d                                          _____________     _____          969, 974-75 (5th Cir.  1990); United States v. Goodwin,  854 F.2d                                        _____________    _______          33,  36 (4th  Cir. 1988); United  States v. Goff,  681 F.2d 1238,                                    ______________    ____          1240 (9th Cir. 1982); United States  v. Lowe, 575 F.2d 1193, 1194                                _____________     ____          (6th Cir.), cert. denied,  439 U.S. 869 (1978); United  States ex                      _____ ______                        _________________                                        ____________________               3This  is not  very different  than  a magistrate  issuing a          warrant   for  a  wiretap      a  warrant  which,  in  actuality,          contemplates a  "seizure" of specific  oral communications which,          by  definition, do  not  exist  at  the  time  of  the  warrant's          issuance.    Such a  warrant can  appropriately  be viewed  as an          anticipatory warrant  for the seizure  of words:   the magistrate          issues the warrant on the basis of a substantial probability that          crime-related  conversations will ensue.   Clearly, such warrants          are permitted under  the Fourth  Amendment.  See  Katz v.  United                                                       ___  ____     ______          States, 389 U.S. 347, 354-55 (1967); Berger v. New York, 388 U.S.          ______                               ______    ________          41, 63 (1967).                                          7          rel.  Beal v. Skaff,  418 F.2d 430,  432-33 (7th Cir.  1969); see          __________    _____                                           ___          also United States  v. Nixon,  918 F.2d 895,  903 n.6 (11th  Cir.          ____ _____________     _____          1990)  (dictum).    We, too,  believe  that  there  is no  Fourth          Amendment infirmity indigenous to anticipatory search  warrants            although  such warrants must,  of course, be  issued under proper          circumstances, upon a proper showing, and with proper safeguards.          We hold, therefore, that  when law enforcement personnel  offer a          magistrate  reliable,  independent  evidence  indicating  that  a          delivery of  contraband will  very likely  occur at  a particular          place, and when the magistrate conditions the warrant's execution          for the search  of that place on  that delivery, the warrant,  if          not  overbroad  or  otherwise  defective,  passes  constitutional          muster.  That the  contraband has not yet reached the premises to          be  searched  at  the   time  the  warrant  issues  is   not,  in          constitutional terms, an insuperable obstacle.                              B.  Exigent Circumstances.                              B.  Exigent Circumstances.                                  _____________________                    Appellant  next  suggests  that,  even  if anticipatory          warrants are  not invalid per se,  their use must  be confined to                                    ___ __          circumstances  in which time is of the essence, e.g., drug cases,                                                          ____          where  a significant danger lurks that the evidence might be lost          if  the search  is not  made in  close temporal proximity  to the          contraband's  delivery.   We disagree:   the  absence  of exigent          circumstances   and the government readily concedes that none are          present  here     does not  outlaw  the  use  of an  anticipatory          warrant.                    We  need  not  linger.   The  Eighth  Circuit  recently                                          8          rejected this  precise argument.  In Tagbering,  the court stated                                               _________          that  the  presence  or   absence  of  exigent  circumstances  is          irrelevant in determining whether an  anticipatory search warrant          should issue.  See Tagbering, 985 F.2d at 950 n.6.  We share this                         ___ _________          view.  Where the probable  cause requirement for an  anticipatory          search warrant has been  fulfilled, there is no necessity  for an          independent showing of exigent  circumstances.  Cf. United States                                                          ___ _____________          v.  Panitz, 907 F.2d 1267, 1270 (1st Cir. 1990) (reiterating that              ______          where  a  vehicle  search  is supported  by  probable  cause,  no          exigency need exist to justify warrantless search).                    The  logic  behind  this  conclusion  is  inescapable.4          Probable cause is probable cause; the justification for  a search          does not vanish  merely because the  circumstances are such  that          the  evidence could have  been obtained  through a  more familiar          method.   See United States  v. Johns, 469  U.S. 478, 484 (1985);                    ___ _____________     _____          United  States  v. LaFrance,  879 F.2d  1,  4-5 (1st  Cir. 1989);          ______________     ________          United  States v. McHugh, 769  F.2d 860, 865-66  (1st Cir. 1985);          ______________    ______          see  also United  States v.  Rabinowitz, 339  U.S. 56,  66 (1950)          ___  ____ ______________     __________          ("The relevant test is not whether  it is reasonable to procure a          search warrant, but  whether the search was  reasonable.").  That          the  authorities  might  often  be  better  positioned  in  child                                        ____________________               4Indeed, as both Tagbering and Panitz point  out, if exigent                                _________     ______          circumstances  exist, there  is, by definition,  no need  for any          kind of  search warrant.   See  Tagbering, 985  F.2d at 950  n.6;                                     ___  _________          Panitz,  907 F.2d at 1270  & n.3.  The other  side of the coin is          ______          equally revealing:   exigent circumstances will  rarely, if ever,          be present  in child pornography  cases, as history  teaches that          collectors  prefer  not  to  dispose of  their  dross,  typically          retaining obscene materials for years.                                          9          pornography investigations than in  drug investigations to obtain          a conventional search warrant  does not cheapen the value  of the          magistrate's initial probable cause determination  and, thus, "is          not dispositive of any relevant issue."  Panitz, 907 F.2d at 1271                                                   ______          n.3.  Consequently, we hold that an  otherwise valid anticipatory          warrant does not fail merely because the officers might have lost          nothing by waiting until  the delivery had been  completed before          obtaining a warrant.                                  C.  Definiteness.                                  C.  Definiteness.                                      ____________                    We  now reach the crux  of the suppression  issue:  Was          the  warrant  fatally defective  because  it  failed to  forge  a          sufficient  link between  the  arrival of  the videotape  and the          proposed search of appellant's abode?  We think that it was.                    Although   anticipatory   search   warrants   are   not          constitutionally  foreclosed, see  supra  Part  II(A), a  warrant                                        ___  _____          conditioned  on  a future  event presents  a potential  for abuse          above  and beyond that which exists in more traditional settings:          inevitably,  the executing  agents are  called upon  to determine          when and whether  the triggering event  specified in the  warrant          has actually  occurred.  Consequently, magistrates  who are asked          to issue such warrants must be particularly vigilant  in ensuring          that the  opportunities for exercising unfettered  discretion are          eliminated.  To satisfy these  concerns, the magistrate must  set          conditions governing an anticipatory warrant  that are "explicit,          clear,  and  narrowly drawn  so as  to avoid  misunderstanding or          manipulation  by government agents."  Garcia, 882 F.2d at 703-04;                                                ______                                          10          accord Tagbering, 985 F.2d at 950.          ______ _________                    There   are   two   particular   dimensions   in  which          anticipatory  warrants  must limit  the discretion  of government          agents.  First,  the magistrate must  ensure that the  triggering          event is both ascertainable and preordained.   The warrant should          restrict the officers' discretion  in detecting the occurrence of          the event to almost ministerial proportions,  similar to a search          party's  discretion in locating the  place to be  searched.  Only          then,  in the prototypical case, are the ends of explicitness and          clarity served.   Second,  the contraband must  be on a  sure and          irreversible course  to its destination,  and a future  search of          the  destination  must  be  made expressly  contingent  upon  the          contraband's arrival  there.  Under such  circumstances, a number          of  courts have found  anticipatory search warrants  to be valid.          See,  e.g.,  Nixon,  918  F.2d  at  903  n.6;  United  States  v.          ___   ____   _____                             ______________          Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988), cert. denied, 490          _________                                       _____ ______          U.S. 1005 (1989); Goodwin, 854 F.2d at 36; United States v. Hale,                            _______                  _____________    ____          784 F.2d 1465,  1468-69 (9th  Cir.), cert. denied,  479 U.S.  829                                               _____ ______          (1986);  Goff,  681  F.2d  at  1240.   We  adopt  the  "sure  and                   ____          irreversible course" standard as a  means of judging the validity          of anticipatory warrants.                      It  is at this juncture,  however, that we part company          with the government.   The  sure course standard  functions as  a          proxy  for the actual presence of the  contraband at the locus to          be searched.   It offers the  magistrate a trustworthy  assurance          that  the contraband,  though not  yet on  the site,  will almost                                          11          certainly  be located  there  at the  time  of the  search,  thus          fulfilling the requirement of future  probable cause.  See, e.g.,                                                                 ___  ____          Hale, 784 F.2d at  1468 (finding a warrant for  child pornography          ____          that was to  be delivered to  defendant at his home  to be "on  a          sure  course to its  destination" and,  hence, valid);  Goff, 681                                                                  ____          F.2d at 1240 (finding the requirement met where defendant boarded          an airplane and agents then  procured a warrant to search  him at          the flight's terminus).  Implicit   in   this  standard   is  the          recognition that the evidence must  be on an ascertainable course          so that  the event  on which the  warrant is conditioned  bears a          definite relationship to  the premises  to be searched.   It  is,          moreover,  imperative that  the warrant  establish not  only this          kind of tri-cornered nexus between the criminal act, the evidence          to  be seized, and  the place to  be searched, but  also that the          nexus incorporate  a temporal  dimension.  The  important privacy          interests  protected by  the Fourth  Amendment make  it incumbent          upon  the magistrate to  craft the warrant  with explicit, clear,          and narrowly  drawn conditions governing its  execution to ensure          that  the anticipated nexus will  actually exist if  and when the          warrant  is  executed.    Phrased another  way,  the  event  that          triggers the search must be the delivery of the contraband to the                                                                     ______          premises to be searched, thereby leaving as little as possible to          _______________________          the discretion of the agent executing the warrant.  See 2 LaFave,                                                              ___          supra   3.7(d), at 101-02.          _____                    The instant warrant imposed no such  strict conditions.          To  the contrary, it overlooked  (or, at least,  did not address)                                          12          the need for  establishing a nexus  between the triggering  event          and the place  to be  searched.  Here,  the warrant authorized  a          search  not of appellant's person  but of his  home, for evidence          relating to  his  dealings with  child pornography  distributors.          The  search was  to be  triggered by  delivery of  the videotape.          Thus,  the very premise on which  the warrant rested was that the          videotape's arrival would signal  the existence of probable cause          to believe that evidence of  a crime   the videotape itself    as          well as  evidence of  criminal predisposition or  other nefarious          activity was likely located in the dwelling.  The warrant's text,          however, completely  ignored  this connection,  conditioning  the          search not  on the arrival  of the videotape  at the place  to be          searched,  but, rather,  on appellant's  personal receipt  of the          videotape,  wherever he might be  and wherever he  might take his          prize.  By the terms of the warrant, once appellant retrieved the          package  at  the post  office, the  postal inspectors  could have          searched  his   abode  whether  or  not   appellant  brought  the          contraband there.  An anticipatory search warrant that cedes such          great  discretion  to  the  executing  agents  cannot   withstand          constitutional scrutiny.                    In  United States v. Hendricks, 743  F.2d 653 (9th Cir.                        _____________    _________          1985),  cert. denied,  470 U.S.  1006 (1986),  the  Ninth Circuit                  _____ ______          grappled with an almost  identical nexus problem when considering          the  validity  of  an anticipatory  warrant.    There,  a package          containing  contraband  was  shipped   in  a  way  that  required          defendant to pick  up the package personally, rather  than merely                                          13          having it delivered to  his home.  See  id. at 653.  Even  though                                             ___  ___          the  contraband actually  arrived at  defendant's residence,  the          Ninth  Circuit invalidated  the  warrant on  the  ground that  it          failed to forge the requisite link between the described premises          and the  illegal activity.  See  id. at 655.   The court reasoned                                      ___  ___          that,  although the  warrant  listed a  specific  location to  be          searched,  once the box was picked up any number of circumstances          might intervene to snuff  out a future connection between  it and          the premises.  See id. at 654-55.                         ___ ___                    The  case  at  hand  parallels Hendricks  in  important                                                   _________          respects.5  Here,  as in Hendricks, the  package, once retrieved,                                   _________          could  have  been taken  anywhere.   Here,  as in  Hendricks, the                                                             _________          conditions governing  the execution  of  the anticipatory  search          warrant  were  extremely susceptible  to  the  discretion of  the          executing officers.  Here,  as in Hendricks, the warrant  was too                                            _________          broadly drawn in  that it did not ensure that  the contraband was          on a sure  course to the  premises to be searched.   Here, as  in          Hendricks,  even  though  the  defendant  happened  to  take  the          _________          contraband home, the warrant did not establish an adequate three-          way  nexus between  the  criminal activity,  the  evidence to  be          seized, and the premises.  It follows inexorably that here, as in          Hendricks, the search warrant was invalid.          _________                    Nor can we read  the warrant as treating the  search of                                        ____________________               5To be sure, the case at hand differs  from Hendricks in the                                                           _________          respect  that, here, the authorities made  an abortive attempt to          deliver the package directly to the defendant's residence.  We do          not consider this distinction to possess decretory significance.                                          14          appellant's  abode as an event  separate from his  receipt of the          videotape.  The affidavit supporting the warrant bases the postal          inspector's  conclusions anent  probable  cause upon  appellant's          future receipt of the videotape at his home.  What is more, it is          the triggering condition of  appellant's receipt of the videotape          at  home  that eliminates  alternative  possibilities, say,  that          appellant  was a  runner  for some  other  person, or  simply  an          internuncio,  thereby producing  probable cause  to believe  that          appellant is  a collector of  child pornography and,  hence, that          his residence likely contains evidence of his criminality.   See,                                                                       ___          e.g., id. at 654 (invalidating warrant where triggering event was          ____  ___          not  certain  and  independent  probable cause  did  not  exist).          Therefore, unless the search  can be saved on some  other theory,          an inquiry to which we now turn, the fruits of the search must be          suppressed.6                                     D.  Consent.                                     D.  Consent.                                         _______                    The government asseverates  that any  infirmity in  the          search warrant  was assuaged  by appellant's supposed  consent to          the  postal inspectors' seizure of the videotape.  We reject this                                        ____________________               6Our  concurring brother  takes  the view  that the  warrant          cannot stand because it  was based in part on  stale information.          See, e.g., United  States v.  Bucuvalas, 970 F.2d  937, 940  (1st          ___  ____  ______________     _________          Cir. 1992) (discussing criteria for reliability of information on          which probable  cause determination is based),  cert. denied, 113                                                          _____ ______          S. Ct. 1382 (1993).   We find  this proposition troubling, as  it          overlooks  the   undeniable  fact  that,  in   addition  to  what          transpired in the past,  the affidavit also contains ample  "non-          stale" information  concerning  appellant's ordering  of  illicit          materials  from  Globe-Tex  shortly  before  the  search  warrant          issued.   In any event, given our  conclusion that the warrant is          void  for  indefiniteness,  we  need not  resolve  the  staleness          question.                                          15          asseveration  on three grounds.   In the first  place, the record          discloses  no  finding  by  the  district  court  that  appellant          consented to a  seizure.   Second, even if  appellant voiced  his          consent,  a court could not  plausibly find such  consent to have          been  voluntary   in  the   atmosphere  created  by   the  postal          inspectors' execution  of the invalid warrant.  See, e.g., United                                                          ___  ____  ______          States  v. Maragh, 894 F.2d 415, 419-20 (D.C. Cir.) (finding that          ______     ______          consent does  not cure  an unlawful seizure),  cert. denied,  498                                                         _____ ______          U.S. 880  (1990); see also United States  v. Twomey, 884 F.2d 46,                            ___ ____ _____________     ______          50-51   (1st   Cir.  1989)   (identifying  criteria   helpful  in          determining voluntariness of consent), cert. denied, 496 U.S. 908                                                 _____ ______          (1990).  Once appellant  was led down the garden  path, persuaded          that the search warrant  was unimpugnable, his subsequent consent          must  be viewed as  merely an  accommodation to  the authorities.          See Florida v. Royer, 460 U.S. 491, 497 (1983); Lo-Ji Sales, Inc.          ___ _______    _____                            _________________          v. New York, 442 U.S. 319, 329 (1979).  At any  rate, the consent             ________          issue  is  academic  because,  as the  government  concedes,  the          videotape was within  the perimeter of the  search warrant (which          provided for the  seizure of all  "objects" related to  Globe-Tex          Specialties).  Inasmuch as the videotape is an immediate fruit of          an  invalid search warrant, it must be suppressed.7  See Illinois                                                               ___ ________          v. Rodriguez, 110 S. Ct. 2793, 2799 (1990).             _________                                        ____________________               7We  need not  consider  the effect  of appellant's  alleged          consent on  the suppression of  magazines and other  detritus not          encompassed by the search warrant.   The short, conclusive answer          in regard  to such items is  that the government did  not seek to          use them against appellant or introduce them into evidence at the          trial.   Any controversy  anent such items  is, therefore,  moot.          See, e.g., Smith v. INS, 585 F.2d 600, 602 (3d Cir. 1978).          ___  ____  _____    ___                                          16                                   E.  Good Faith.                                   E.  Good Faith.                                       __________                    The government strains to persuade us that, even if the          warrant self-destructs,  the evidence seized can  be used against          Ricciardelli under  the good faith exception  to the exclusionary          rule.  We are not convinced.                    In United  States v.  Leon, 468  U.S.  897 (1984),  the                       ______________     ____          Supreme Court explained that the exclusionary rule is a deterrent          measure designed to ensure  compliance with the Fourth Amendment.          See id. at 906.  The Court  believed that there would often be no          ___ ___          deterrence when police  obtain evidence in  reliance on a  search          warrant that is subsequently found to be defective; "in most such          cases,  there is no police illegality and thus nothing to deter."          Id.  at 921.   Hence,  exclusion of  seized evidence  under those          ___          conditions  serves no  salutary  purpose  because  that  sanction          "cannot  logically   contribute  to  the  deterrence   of  Fourth          Amendment violations."  Id.                                  ___                    Although weakening the exclusionary rule, the Court did          not defenestrate it.   The Justices acknowledged that suppression          would   continue  to   be   appropriate  in   situations   where,          notwithstanding the  issuance of a warrant,  "the law enforcement          officer had knowledge, or may properly be charged with knowledge,          that the search was unconstitutional under the Fourth Amendment."          Id. at 919.   Thus, to cite  two instances, suppression would  be          ___          proper where  the "warrant  [is] .  . .  so facially deficient             i.e., in failing to particularize the place to be searched or the          ____          things  to  be  seized     that  the  executing  officers  cannot                                          17          reasonably presume it to be valid," or the warrant is "so lacking          in indicia of probable  cause as to render official belief in its          existence  entirely  unreasonable."   Id.  at  923 (citation  and                                                ___          internal quotation  marks omitted).   If, however,  the warrant's          defectiveness   results   from   mere   technical   errors,   see                                                                        ___          Massachusetts  v. Sheppard,  468  U.S. 981,  984, 990-92  (1984),          _____________     ________          bevues  by  the magistrate  not  readily evident  to  a competent          officer, see United States v. Bonner, 808 F.2d 864, 867 (1st Cir.                   ___ _____________    ______          1986)  (suggesting that  exclusion of  evidence is  inappropriate          where the magistrate, as opposed to the officers, is  responsible          for  a defective warrant), cert. denied, 481 U.S. 1006 (1987), or                                     _____ ______          borderline calls about the existence of probable cause, see Leon,                                                                  ___ ____          468  U.S. at 926 (favoring  non-exclusion in situations where the          warrant is  based on "evidence sufficient  to create disagreement          among thoughtful  and competent  judges as  to  the existence  of          probable  cause"),  then the  evidence may  be used,  despite the          warrant's defectiveness.                    To summarize,  the exclusionary rule is  alive and well          to the extent that a warrant's defectiveness results from  either          (1)  non-technical errors  of a  kind that  a reasonably  prudent          officer would (or should) have recognized, or (2) law enforcement          officers' acts or omissions  of a kind that a  reasonably prudent          officer would  have avoided.  See 1 LaFave, supra   1.2(d), at 38                                        ___           _____          (explaining that  searching officer's erroneous  understanding of          Fourth Amendment limits on his power  still presents a compelling          case for exclusion).                                          18                    After Leon, how does a court tell whether a defect in a                          ____          warrant is  fatal?  In  determining whether a  reasonable officer          should  have   known  that  a   search  was  illegal   despite  a          magistrate's  authorization,  a  court  must  evaluate   all  the          attendant circumstances, see Leon, 468 U.S. at 922 n.23; Earle v.                                   ___ ____                        _____          Benoit,  850 F.2d 836, 848 (1st  Cir. 1988), keeping in mind that          ______          Leon requires not  merely good faith,  but objective good  faith.          ____          See United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989).  And          ___ _____________    _____          when, as now, a government agent asserts good faith reliance on a          magistrate's decision to  issue a warrant,  the court must  focus          upon the existence vel non of objective good faith at the time of                             ___ ___          the warrant application.   See  Malley v. Briggs,  475 U.S.  335,                                     ___  ______    ______          344-45 (1986); Earle, 850 F.2d at 848.                         _____                    Here, the government fails both parts of the good faith          test.   After studying the record on appeal, we conclude that the          warrant,  as  issued,  contained  non-technical  defects  readily          observable to experienced  postal inspectors and, moreover,  that          the  inspectors'  omissions  in the  warrant-application  process          constituted  a  second,   independently  sufficient  ground   for          distinguishing this  case from  Leon.  Accordingly,  the evidence                                          ____          seized  under the  anticipatory warrant  and introduced  at trial          should have been suppressed.                    In connection  with  the first  prong of  the test,  we          find, without serious question, that the defects on the warrant's          face were apparent enough that the  postal inspectors should have          realized  that it did not comport with the Fourth Amendment.  The                                          19          law was settled  that the conditions  governing the execution  of          anticipatory  warrants  must  be explicit,  clear,  and  narrowly          drawn.    The  instant  warrant  plainly  did  not satisfy  these          criteria; and, furthermore, the principal omission in the warrant            the lack  of any requirement that the contraband  arrive at the          premises    was both glaring  and easily correctable.   Examining          the postal inspectors' actions in this light, it is crystal clear          that they  could,  and  should,  have  asked  the  magistrate  to          condition the search of  appellant's home on the delivery  of the          videotape  there; failing  both to insert  this condition  and to          recognize   the   consequences   of   its   omission  constituted          objectively  unreasonable  conduct.    It  follows,  then,   that          attempting to  execute an  anticipatory search warrant  bereft of          such a limiting condition fell "outside the range of professional          competence  expected" of  federal agents.8   Malley, 475  U.S. at                                                       ______          346 n.9; see  also United  States v. Washington,  797 F.2d  1461,                   ___  ____ ______________    __________          1473 (9th  Cir. 1986)  (ruling that "patently  overbroad" warrant          did not give  rise to  objective good faith  under Leon);  United                                                             ____    ______          States  v.   Crozier,  777  F.2d  1376,  1382   (9th  Cir.  1985)          ______       _______          (concluding that  overbreadth in  a search warrant  comprised "no          mere technical error").                                        ____________________               8While the  standard is one of  objective reasonableness, we          note that  the postal inspectors who  orchestrated this operation          were veterans of the  government's war against child pornography.          In  the affidavit  accompanying  the application  for the  search          warrant,  one of the postal  inspectors stated that  he had "been          involved in approximately 300  child pornography and child sexual          exploitation investigations" and had "personally been involved in          the execution  of at least 75  search warrants . .  . relative to          child sexual exploitation investigations."                                          20                    Although  the failure  to  correct  evident defects  is          itself sufficient  to support suppression  here, it is  also true          that   other   omissions  attributable   to  the   agents  would,          independently, have required the  same result.  Government agents          may  not trespass  beyond  the bounds  of well-delineated  Fourth          Amendment  procedures and  then attempt  to blunt the  effects of          their  pererrations by foisting the blame on the magistrate.  See                                                                        ___          Malley, 475  U.S. at 346  n.9; United  States v. Baker,  894 F.2d          ______                         ______________    _____          1144,  1148  (10th  Cir.  1990).   This  principle  applies  with          especial  force  where,  as  in  this  case,  a  sting operation,          culminating  in   a  controlled  delivery,  is   involved.    The          government  knew  the plot;  indeed,  it  invented Globe-Tex  and          produced  the  sting  from start  to  finish.    Yet, the  postal          inspectors  failed to share  the full script  of their stage-play          with  the magistrate.  They  cannot now fault  the magistrate for          their bad reviews.                    In  this respect,  the case  at  bar is  reminiscent of          United States v. Fuccillo, 808 F.2d 173 (1st Cir.), cert. denied,          _____________    ________                           _____ ______          482 U.S.  905 (1987).  In  Fuccillo, we held that  the good faith                                     ________          exception  would not  salvage  a search  where,  inter alia,  the                                                           _____ ____          warrant did  not sufficiently describe  the things to  be seized,          because the officer possessed facts which should have enabled him          to describe the property  to be seized  more accurately.  Id.  at                                                                    ___          177,  178 (stating that the warrant "could have been written with          precision to assure that  appellee's personal rights would remain          inviolate" and that "the agents were reckless in not including in                                          21          the affidavit information which was known or easily accessible to          them").  Where the omission of a key ingredient, known to the law          enforcement officers, leads to the subsequent invalidation of the          warrant,  the government faces a  high hurdle in  seeking to show          objective good faith.                    When  issuing  anticipatory warrants,  magistrates must          rely  to a large extent on the  expertise of federal agents as to          the certainty that the triggering event will occur.  Particularly          where,  as in  this case,  the agents  preset elaborate  plans to          search  and seize, magistrates can only act to ensure respect for          the Fourth  Amendment's protections if  they are informed  of the          plan's discretionary elements.   Thus, the postal inspectors here          were  responsible for  conveying  to the  magistrate the  various          possible  outcomes  in  their  scheme to  deliver  the  Globe-Tex          package to  Ricciardelli.   In particular, the  inspectors should          have  apprised the  magistrate  of  the (apparently  significant)          chance  that the package would not be delivered to Ricciardelli's          home  at   all      a  possibility   that  they   undeniably  had          envisioned.9   Fully informed, the magistrate might  have drawn a          more finely tuned warrant.  See Rivera v. United States, 928 F.2d                                      ___ ______    _____________          592, 603  (2d Cir.  1991); see  also Fuccillo,  808  F.2d at  178                                     ___  ____ ________          (warning that, in applying for a warrant, agents must "take every                                        ____________________               9At the suppression hearing, Inspector Dunn, whose affidavit          supported the search warrant, testified that the inspectors' plan          to   execute   the   search   warrant   "[d]epend[ed]   on   what          [Ricciardelli] did  after  he  picked  it up."    His  affidavit,          however,  did  not disclose  to  the  magistrate  the variety  of          possible outcomes or the inspectors' contingency plans.                                          22          step that could reasonably be expected of them").                     In  fine, the Leon doctrine does not apply in this case                                  ____          both because a reasonably prudent officer should have  known that          the procured warrant was substantially defective on its face, and          because  the defect was largely,  if not entirely,  the result of          the  officers' incomplete  account to  the magistrate.10   In the          circumstances, the  magistrate's imprimatur on the warrant cannot          save the day.  The exclusionary rule obtains.  Suppression of the          evidence seized  by means of  the invalid warrant  is appropriate          "to compel respect  for the constitutional  guaranty in the  only          effectively  available  way      by  removing  the  incentive  to          disregard it."  Mapp v. Ohio, 367 U.S. 643, 656 (1961).                          ____    ____          III.  CONCLUSION          III.  CONCLUSION                    We  need   go  no  further.11    Although  anticipatory                                        ____________________               10Although  the  point is  not  instrumental  to either  the          analysis or the  outcome here,  we note that  the Leon  exception                                                            ____          does  not absolve government officers from  every mistake made in          good faith  during the execution  of a warrant.   See,  Leon, 468                                                            ___   ____          U.S. at 920; see also United States v. Strand, 761 F.2d 449, 456-                       ___ ____ _____________    ______          57 (8th Cir. 1985) (holding Leon inapplicable to seizures outside                                      ____          the scope of a  warrant).  For instance,  Leon's good faith  rule                                                    ____          would  not excuse  full-blown  mistakes  in  the execution  of  a          warrant.  See, e.g., Maryland  v. Garrison, 480 U.S. 79, 89  n.14                    ___  ____  ________     ________          (1987)  (explaining  that,  when  "police begin  to  execute  the          warrant  and  . .  . discover  [a]  factual mistake[,  they] must          reasonably  limit  their  search  accordingly").    Hence,  if  a          situation  arises in  which  officers wrongly  conclude that  the          triggering event  needed to  animate an anticipatory  warrant has          occurred, and  proceed to execute  a full search  in the  face of          this  mistake, we would not review that mistake under Leon's good                                                                ____          faith standard.               11After  this  appeal was  fully  briefed,  but before  oral          argument,  the  Ninth  Circuit  struck  down  the  Protection  of          Children Against Sexual Exploitation  Act, 18 U.S.C.    2251-2255          (1988),  of which section 2252(a)(2) is a part, on constitutional          grounds.  See United  States v. X-citement Video, Inc.,  982 F.2d                    ___ ______________    ______________________                                          23          search warrants are constitutionally  allowable, the warrant used          in this case suffered  from a fatal defect that was neither cured          by any enforceable consent nor subject to amelioration  under the          Leon doctrine.   Accordingly, appellant's motion  to suppress the          ____          fruits           of the search should have been granted.                    Appellant's  conviction  is  vacated  and  the district                    Appellant's  conviction  is  vacated  and  the district                    _______________________________________________________          court's denial of appellant's motion to suppress is reversed.          court's denial of appellant's motion to suppress is reversed.          ____________________________________________________________                              Concurring Opinion Follows                                          ____________________          1285, 1292  (9th Cir. 1992).  This  issue was neither briefed nor          argued  before us.    Hence, we  take  no view  of  the statute's          constitutionality.                                          24                    TORRUELLA,  Circuit Judge  (Concurring).    Although  I                                _____________          agree  that  appellant's conviction  should  be  vacated, I  have          serious  reservations  about  the  majority's  approach  to  that          result.  The majority unnecessarily addresses  the constitutional          validity of  anticipatory search warrants and,  having done that,          resolves the issue incorrectly.                    I begin by describing  the areas in which my  views are          most similar  to those of the  majority.  We both  agree that the          warrant in this  case was utterly unsupported  by probable cause.          I  find, however, that the warrant was tainted by information too          stale to carry  the crisp reliability necessary  to find probable          cause.   While the majority contentedly  dismisses this aspect of          the  case, ante  at 15 n.6,  I believe  that it  provides for the                     ____          proper resolution of this appeal.                    As the  majority eloquently  states, "In  1988, Houston          police   breathed  life   into  a   moribund  child   pornography          investigation by giving federal postal inspectors a customer list          unearthed  during  a  1975   probe  of  a  suspected  pornography          distributor."  Ante at 2.  The activity unearthed by the moribund                         ____          investigation  --  appellant  ordered  two  films  from  a  child          pornography  dealer  --  occurred  in  1974.    In  1990,  postal          inspectors  conducted  a  sting  which  lured  appellant  to  buy          forbidden films, and applied for a warrant to search his home for          those  and  other  materials.   The  1990  operation  and warrant          application were  based,  thus, on  appellant's activities  which          occurred sixteen years before.                                         -24-                                          24                    In this circuit, we do not measure staleness merely  on          the  basis of the maturity of the  information.  United States v.                                                           _____________          Bucuvalas, 970 F.2d 937,  940 (1st Cir. 1992), cert.  denied, 113          _________                                      _____________          S.  Ct.  1382  (1993).   Other  factors  include  1) whether  the          criminal activity is ongoing or discrete; 2) whether the criminal          is  entrenched or nomadic; 3) whether  the items to be seized are          long-lasting or perishable;  and 4)  whether the  premises to  be          searched  are a secure operating  base or a  mere criminal forum.          Id.  The application of these factors to the facts of the present          __          case, some not fully detailed in the majority opinion,  discloses          the stagnant heart of this case.                    First,  the  statute  that  appellant  is  accused   of          violating, 18 U.S.C.   2252(a)(2), prohibits the receipt of child          pornography through interstate commerce or mail.  The evidence in          the record of this case shows that appellant only engaged in this          activity twice, on  occasions separated  by sixteen  years.   The          activity clearly cannot be described as ongoing.  This conclusion          is  buttressed by the fact  that when appellant  placed the first          order, in 1974, the receipt of child pornography through the mail          was not  prohibited.  An early  version of   2252  did not appear          until  1978, with a substantial amendment  occurring in 1984, ten                                                                        ___          years  after appellant's  first order.   Thus,  appellant's first          _____          order was  not  even illegal.    This is  a  point that  must  be                               _______          emphasized.   There was no ongoing illegal activity in this case,          because appellant acted illegally  only once, when the government          induced  him to  do so  in a  sting operation.   In  other words,                                         -25-                                          25          appellant's  recent purchase  did not  update the  1974 purchase,          because those earlier  activities are not comparable  in terms of          violation of the law.                    Appellant's  nomadic  nature also  negates  the ongoing          reliability  of his 1974 activity.  At that time, appellant lived          in Newton,  Massachusetts.  Appellant later  moved to Framingham,          Massachusetts, and  yet again  to another address  in Framingham.          Appellant  lived  at his  final  residence  with  his mother  and          brother,  sharing  a  room  with  his  sibling.    The  affidavit          contained  no information  even  tending to  show that  appellant          retained the  1974 materials  through these relocations,  or that          his coresidents  tolerated the  presence of prurient  material in          the shared premises.                    I concede that the affidavit showed the ongoing utility          of child pornography to collectors and pedophiles, discussing how          such  individuals  keep their  dross  for long  periods  of time.          Standing alone,  however, this  information does not  justify the          conclusion  that appellant kept  the materials throughout sixteen          years  and  two  relocations.    The  affidavit  did  not  define          collector and pedophile, or characterize appellant as a member of          either class.   See United States v.  Weber, 923 F.2d  1338, 1345                          ___ _____________     _____          (9th Cir.  1990) (concerning  similar affidavit, the  court noted          "the  affidavit does not say  how many magazines  or pictures one          must buy in order to be defined as a 'collector'").  As such, the          affidavit  is  inconclusive  as to  the  ongoing  utility of  the          materials  to  appellant,  especially  in light  of  his  various                                         -26-                                          26          relocations  and  the long  passage  of time.    Additionally, it          cannot  be  presumed  automatically  that  appellant  would  keep          material which was illegal as a result of subsequent legislation,          once such a law went into effect in 1978.                    Finally, there  is no showing  that appellant's address          was  a secure base.  The  affidavit did not adduce that appellant          kept  a  cache  of   child  pornography  there,  and  appellant's          relocations  weaken  the  existence  of this  possibility.    The          affidavit  merely established  that the  address was  appellant's          home, which he  shared with his mother  and brother.   Again, the          fact  that he  shared his  premises with  nonparticipants in  the          criminal enterprise is a weakening point in terms of the presence          of contraband at that location.                    Based on these factors, I find it easy to conclude that          the information  pertaining to  appellant's 1974  materials could          not support  a probable  cause finding  in this  case.   Yet, the          stagnant  information  formed   the  heart  of  the   inspector's          affidavit and  was the  only basis  for the  attenuated inference          that appellant amassed  child pornography at  his home.   Without          it, the  sting operation and the search warrant fall.  This is as          far as we should go, proceeding directly to quash the conviction.          It is unnecessary to go further into constitutional speculation.                    The majority proceeds, however, to answer unnecessarily          a  wholly  novel  question   for  this  circuit:    whether   the          anticipatory search  warrant  in this  case  was  constitutional.          Worse yet, it issues a blanket license allowing its proliferation                                         -27-                                          27          into common use.                    For the majority to  do so is an imprudent  exercise of          our judicial power.  It is axiomatic that we avoid constitutional          rulings  unless they  are strictly  necessary.   El D a,  Inc. v.                                                           _____________          Hern ndez  Col n,  963  F.2d  488, 494  (1st  Cir.  1992) (citing          ________________          Alabama State Federation of  Labor v. McAdory, 325 U.S.  450, 461          __________________________________    _______          (1945); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-55                  _________    ______________________          (1936) (Brandeis,  J., concurring);  Aggarwal v. Ponce  School of                                               ________    ________________          Medicine, 745 F.2d 723, 726 (1st Cir. 1984)).  The  long standing          ________          rationale for this  rule is to  avoid issuing advisory  opinions.          United States v. Hastings, 296 U.S. 188, 193 (1935).  Because the          _____________    ________          search  warrant in this case was  utterly unsupported by probable          cause,  addressing the  constitutionality of  anticipatory search          warrants amounts to such an impermissible advisory opinion.                    To complicate  matters, the  majority elects  the wrong          side  of  this  unnecessary   constitutional  issue,  choosing  a          problematic  and erroneous  result  in this  case.   Anticipatory          search  warrants are  violative  of the  Fourth Amendment,  which          plainly states  that "no Warrants shall issue,  but upon probable          cause."   Probable  cause must exist  to believe  at the  time of                                                            _______________          issuance  that the  contraband is  in the  place to  be searched.          ________                       __          Steagald v.  United States,  451 U.S.  204, 213 (1981)  (warrants          ________     _____________          issue  upon  showing  of  "probable  cause  to believe  that  the          legitimate  object of a search is located in a particular place")                                         __          (emphasis added); United States v. Salvucci,  599 F.2d 1094, 1096                            _____________    ________          (1st  Cir.  1979)  ("the   Fourth  Amendment  requires  that  the                                         -28-                                          28          supporting  affidavits  set forth  facts  sufficient  to allow  a          neutral  magistrate  to  reasonably conclude  that  the  property          sought is located on the  premises to be searched at the time the                 __                                         ___________          warrant issues")  (emphasis added),  rev'd on other  grounds, 448                                               _______________________          U.S. 83 (1980); see also Sgro v. United States, 287 U.S. 206, 208                          ________ ____    _____________          (1932) ("the proof [supporting  probable cause] must be of  facts          so closely related to the time of the issue of the warrant  as to          justify a finding of probable cause at that time").                    The requirement of contemporaneous probable cause flows          from  the interests animating the  Fourth Amendment.   One of the          principle  evils which  that  provision prevents  is vesting  law          enforcement officers with any discretion as to whether or not the          conditions  of  the warrant  have been  complied  with.   This is          precisely what anticipatory warrants permit in deviating from the          contemporaneous probable cause standard.                    It is  well established  that "[t]he security  of one's          privacy  against arbitrary intrusion by the police -- which is at          the core of the Fourth Amendment  -- is basic to a free society."          Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971) (quoting Wolf          ________    _____________                                    ____          v.  Colorado, 338 U.S. 25,  27 (1949)).   Accordingly, the Fourth              ________          Amendment places  very stringent  limits on officers  invading an          individual's privacy.   "'The proceeding by  search warrant is  a          drastic  one,'  and  must  by carefully  circumscribed  so  as to          prevent unauthorized invasions of  'the sanctity of a man's  home          and the privacies of life.'"  Berger v. New York, 388 U.S. 41, 58                                        ______    ________          (1967).                                         -29-                                          29                    The   Fourth  Amendment  forbids  general  warrants  to          prevent  law  enforcement  officers  from  rummaging  through  an          individual's belongings at will.  E.g., Andresen v. Maryland, 427                                            ____  ________    ________          U.S.  463, 480 (1976) (quoting  Coolidge, 403 U.S.  at 467).  The                                          ________          requirement of a particular description "'makes general  searches          . .  . impossible and prevents  the seizure of one  thing under a          warrant describing another.  As  to what is to be  taken, nothing          is left to the discretion of the officer executing the warrant.'"          Id.  (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965), itself          ___           ________    _____          quoting  Marron  v. United  States,  275 U.S.  192,  196 (1927)).                   ______     ______________          Thus, a warrant authorizing a search for obscene publications was          deficient because it "merely repeated the language of the statute          and the complaints,  specified no publications,  and left to  the          individual judgment of each of the many  police officers involved          in the selection  of such  magazines as in  his view  constituted          'obscene  . . . publications.'"   Marcus  v. Search  Warrant, 367                                            ______     _______________          U.S. 717, 732 (1961).                    Furthermore,  the Fourth  Amendment  requires that  the          probable cause determination  be made by  a neutral and  detached          magistrate, rather  than by  the officers conducting  the search.          It has long been established that                      the  point of the Fourth Amendment, which                      often is not grasped by zealous officers,                      is not that it denies law enforcement the                      support  of  the  usual inferences  which                      reasonable men  draw from evidence.   Its                      protection  consists  in  requiring  that                      those  inferences be  drawn by  a neutral                      and detached magistrate instead  of being                      judged  by  the  officer  engaged  in the                      often competitive enterprise of ferreting                                         -30-                                          30                      out crime.           Johnson  v. United States, 333 U.S. 10, 13-14 (1948).  Otherwise,          _______     _____________          the  Fourth Amendment  would be  a "nullity"  and homes  would be          "secure only in the discretion of police officers."  Id. at 14.                                                               ___                    It is thus clear that the Fourth Amendment is concerned          with insulating the citizenry  from the whims of law  enforcement          officers.  Plainly  and simply,  the use  of anticipatory  search          warrants erodes this  insulation.   When an officer  is given  an          anticipatory search warrant, the magistrate essentially instructs          the  officer as  follows:  When  the following  conditions occur,          probable cause to  conduct a search will  arise.  The officer  is          then left  to determine unilaterally  whether, when, and  how the          conditions occur which give rise to probable cause.                      Law enforcement officers should not be the ones, absent          exigent  circumstances, that  engage in  the sensitive  balancing          required to  weigh the merits of  probable cause in a  given case          because they are not neutral parties to the determination of that          crucial inquiry.  The  majority recognizes the need to  limit the          officers' discretion  in executing an  anticipatory warrant,  but          nonetheless  foists upon  the  officers a  determination that  is          quite  sensitive  in a  constitutional  sense.   An  anticipatory          warrant can only be  executed when four threads come  together to          form a  coherent nexus:   the criminal  act, the  evidence to  be          seized, the place to  be searched, and the "temporal  dimension."          Ante at 12.  The officers have virtually unfettered discretion to          ____          determine when this "temporal dimension" has been fulfilled, with                                         -31-                                          31          no input from a neutral and detached judicial officer.                    The  majority  also  recognizes  that  "[w]hen  issuing          anticipatory warrants, magistrates must rely to a large extent on          the  expertise of  federal agents  as to  the certainty  that the          triggering event will occur."  Ante  at 21.  Because the majority                                         ____          finds that  probability is the touchstone of probable cause, ante                                                                       ____          at  5,  this fact  demonstrates  the great  amount  of discretion          delegated to law enforcement  officers in the anticipatory search          warrant  context.   Law  enforcement  officers  put together  the          probability that gives rise to probable cause, and then determine          when the eventuality occurs.  In other words, the officers are in          control of the entire warrant process, shaping the probable cause          determination  from  start to  finish.   Such  an  unfettered and          judicially  uncontrolled intrusion  into an  individual's privacy          interest is precisely what  the Fourth Amendment was designed  to          prevent.                    Incredibly,  given  the  majority's  resolution  of the          issue, no government interest weighed heavily in favor of the use          of anticipatory search warrants.  See New Jersey v. TLO, 469 U.S.                                            ___ __________    ___          325,  337   (1985)   (balancing  "the   individual's   legitimate          expectations  of  privacy  and   personal  security"  with   "the          government need for  effective methods to  deal with breaches  of          public order" in passing on the validity of a class of searches).                    An officer "engaged in the often competitive enterprise          of ferreting out crime," Johnson, 333 U.S. at 14, has two options                                   _______          in cases  such as  this one.    Once the  controlled delivery  of                                         -32-                                          32          contraband is complete, he may apply for a search warrant to  the          appropriate  magistrate.   Alternatively, if  an exigency  should          arise  in  the  course   of  the  controlled  delivery  requiring          immediate  action,  the  officer   is  authorized  to  conduct  a          warrantless   search   pursuant   to   the   well-known   exigent          circumstances exception  to the  warrant requirement.   In short,          there  is no  legitimate need  for such  a  novel erosion  of the          Fourth Amendment as is promoted by anticipatory search warrants.                    The  majority's analogy  to  warrants for  wiretapping,          ante  at 7  n.3, is  misapplied.   When authorizing a  wiretap, a          ____          magistrate must  observe  "precise and  discriminate"  procedures          specific to wiretaps.   Katz v. United States,  389 U.S. 347, 355                                  ____    _____________          (1967)  (quoting Berger,  388  U.S. at  57).   For  example,  the                           ______          magistrate  must identify the  telephone number to  be tapped and          the  conversations to be seized.   United States  v. Donovan, 429                                             _____________     _______          U.S. 413  (1977).  Probable cause  must be fully in  place before                                                                     ______          the wiretap  is authorized.   These safeguards  ensure that  "'no          greater invasion  of privacy  [is] permitted than  [is] necessary          under  the circumstances.'"    Katz,  389  U.S. at  355  (quoting                                         ____          Berger,  388 U.S. at 57).  They thus afford "'similar protections          ______          to those . . . of conventional warrants.'"  Id.                                                      ___                    As  discussed above,  anticipatory search  warrants, in          addition  to  lacking  the   basic  protections  of  conventional          warrants,   are   simply  unnecessary   to  any   legitimate  law          enforcement  need.    Normal  search  warrants  and  the  exigent          circumstances  exception  adequately  address  whatever  need may                                         -33-                                          33          arise in a controlled delivery.  As such, allowing the government          to  employ a new technique  with which to  invade an individual's          privacy interest is completely unwarranted (no pun intended).                                         -34-                                          34
