Magee v. State

77 P.3d 732, 2003 Alas. App. LEXIS 95, 2003 WL 21230948
CourtCourt of Appeals of Alaska
DecidedMay 23, 2003
DocketNo. A-8184
StatusPublished
Cited by1 cases

This text of 77 P.3d 732 (Magee v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Magee v. State, 77 P.3d 732, 2003 Alas. App. LEXIS 95, 2003 WL 21230948 (Ala. Ct. App. 2003).

Opinion

OPINION

MANNHEIMER, Judge.

In this case, a judicial officer issued what he called a "contingent" warrant that authorized the police to search Betty Magee's residence if a certain pre-condition was fulfilled. When the police applied for this warrant, they were searching for a "meth lab"-that is, a site for illegally manufacturing methamphetamine. The officer who applied for the warrant conceded that the police currently lacked sufficient justification to search Ma-gee's residence. However, the officer argued-and the issuing magistrate agreed-that there would be sufficient justification for a search of Magee's residence if the police first searched another location (a location for which they had a normal warrant) and found additional incriminatory evidence there. The [733]*733magistrate therefore issued a warrant that authorized the police to search Magee's residence contingent upon the police first searching the other location and finding evidence of either first-degree or second-degree misconduct involving a controlled substance.

The question is whether such a warrant violates the Fourth Amendment to the United States Constitution. As we explain in more detail below, we conclude that this search warrant is unconstitutional because the contingent event that triggered the officers' authority to conduct the search-the finding of incriminatory evidence at the other location-was not defined precisely enough to assure judicial control over the search process.

Underlying facts

In late 2000, the Matanuska-Susitna Nar-cotiecs Team was investigating a possible meth lab at the residence of Donald Wares. According to information gathered by the police, Wares had been purchasing or otherwise accumulating large quantities of chemicals that, in combination, could be used to manufacture methamphetamine.

Wares lived in a semi-rural part of Wasilla, on acreage located at 3998 Pittman Road. Wares's property adjoined Magee's, who owned acreage at 3900 Pittman Road.

Wares had certain connections to the Ma-gee property. He was a friend of Robert Magee, who the police mistakenly believed was Betty Magee's son. (Robert is, in fact, Magee's former brother-in-law.) The police had information that Robert Magee had accompanied Wares on one occasion when Wares purchased toluene, a solvent that can be used in the manufacture of methamphetamine. And the address on Wares's vehicle registration was Magee's address (8900 Pittman Road) instead of his own address (8998 Pittman Road).

On January 2, 2001, the police applied for a warrant to search Wares's property (8998 Pittman). The validity of that warrant is not contested here. However, at the same time, the police applied for a "contingent" warrant to search Magee's property (8900 Pittman).

The officer who applied for these two warrants forthrightly told the magistrate that he did not believe that the police currently had sufficient information to justify a search warrant for Magee's property. However, the officer argued that if the police searched Wares's property and found evidence of a meth lab, then a search warrant for Magee's property would be justified. Specifically, the officer argued that the discovery of the meth lab at Wares's property, combined with Wares's association with Robert Magee and his other connections to the Magee property, would establish probable cause to believe that meth-making supplies, or illegal precursor chemicals, or paperwork documenting the illegal operation would be found on the Ma-gee property.

The magistrate agreed that if the police found a meth lab at Wares's property, or even "evidence of significant precursors" of methamphetamine, this would establish sufficient justification for a search of Magee's property. The magistrate declared that he would issue the contingent warrant.

However, the proposed warrant prepared by the police stated that the search of Ma-gee's property could take place if they found "any] evidence of illegal drug activity" at 3998 Pittman Road (ie., at Wares's property). The magistrate declined to issue the warrant with that wording:

The Court: "Contingent upon finding evidence of ... illegal drug activity"-I think that's a little broad. I mean, if you find two joints at [Wares's property], that's illegal drug activity, but ... that's certainly not enough to [justify the requested search of Magee's property]. [The warrant will be contingent on your finding] evidence of misconduct involving a controlled substance in the ... second or first degree at [Wares's property].

Accordingly, the magistrate drew a line through the words "Megal drug activity" and wrote "MICS 2< or 1<" (misconduct involving a controlled substance in the second or first degree). That is, the magistrate authorized the police to search Magee's property contingent upon their finding some evidence of either first-degree or second-degree controlled substance misconduct at Wares's [734]*734property when they executed the search warrant for that property.

The basic rationale of "amticipatory" or "contingent" search warrants

In Magee's case, the police and the magistrate referred to the search warrant as a "contingent" warrant. Generally, the cases and the literature on this topic refer to this type of warrant as an "anticipatory" warrant. Whatever the label, the basic idea is that the warrant authorizes a search if some future event occurs.

The quintessential anticipatory warrant involves the controlled delivery of contraband-illegal drugs, illegal weapons, ete.-to an identified physical location. Generally, in such cases, the package or other shipping container has already been intercepted and opened (either by the police or by agents of the shipper), so the police know to a reasonable certainty that the package contains contraband. The only element of probable cause still lacking is the fact that this contraband has not yet arrived on the premises that the police wish to search. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed.1996), § 3.7(c), Vol. 2, pp. 362-63, 368.

Under the Fourth Amendment, a court can issue a warrant to search particular premises only if there is probable cause to believe that evidence of a crime will be found there. In the case of a controlled delivery of contraband, until the moment when the contraband is delivered to the suspect premises, it is clear that this contraband will not be found on the premises. But in such cases, most jurisdictions have allowed judicial officers to issue an anticipatory warrant that pre-au-thorizes a search of the premises, contingent upon the delivery being made. These jurisdictions have ruled that such search warrants are valid so long as the information supporting the warrant establishes probable cause to believe that the specified contraband will be present on the premises at the time of the search. LaFave, supra, § 3.7(c), Vol. 2, p. 364. This position was adopted by our supreme court in Johnson v. State, 617 P.2d 1117, 1124 & n. 11 (Alaska 1980).

In cases involving controlled deliveries, an anticipatory warrant plainly offers advantages to the police. Since the police control when the delivery will be made, they can lay out their information to a magistrate in advance.

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Related

Magee v. State
77 P.3d 738 (Court of Appeals of Alaska, 2003)

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77 P.3d 732, 2003 Alas. App. LEXIS 95, 2003 WL 21230948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magee-v-state-alaskactapp-2003.