Executing Anticipatory Search Warrants

• Jurisdiction: Maryland

IX. Executing anticipatory search warrants

Most search warrants are effective immediately, and expire if the probable cause becomes stale, or if the applicable law or the language of the warrant prohibits execution. To the contrary, an anticipatory search warrant is not effective immediately, and becomes effective only upon the occurrence of a "triggering" event, and the period for executing the warrant is measured from the triggering event.

In McDonald, 347 Md. 452, the Court of Appeals stated: "An anticipatory search warrant is one which is issued before the necessary events have occurred to permit a lawful search of the premises." Id. at 461 n.6. An anticipatory search warrant expires if the probable cause becomes stale for either the triggering event or the warrant, or if the applicable law or the language of the warrant prohibits execution, as measured from the triggering event.

Although the Fourth Amendment permits anticipatory search warrants, Md. Code Ann., Crim. Proc. § 1-203, does not specifically authorize anticipatory search warrants. In State v. Lee, 93 Md. App. 408 (1992), aff'd, 330 Md. 320 (1993), the Court of Special Appeals stated: "Whether Maryland will or should approve the issuance and use of anticipatory search warrants is an interesting question, which will undoubtedly have to be met squarely and decided one day." Id. at 420. The Court of Appeals addressed that question in 1998 in Kostelec, 348 Md. at 231, and held that anticipatory search warrants are not permissible in Maryland.

In McDonald, the Court of Appeals noted that most courts have...