                  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 &amp; 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

          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

          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.
                                                

          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.
                                             

          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  &amp; 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.
                                        

          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.
                                      

          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.
                                       

          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

          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
                                                                 

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
