SJC hears argument over whether anticipatory warrants can be reviewed as traditional warrants

The Supreme Judicial Court heard oral argument in Commonwealth v. Victor Mercedes about whether an anticipatory search warrant that was not triggered may nonetheless be treated as a valid warrant because other statements in the affidavit provided probable cause. Katherine Jansen, counsel for the Commonwealth, asked the court to reverse the allowance of a motion to suppress; Eduardo Maspero, counsel for Victor Mercedes, opposed that view and said following it would permit improper discretion by officers.

The question matters because, as the justices framed it during argument, treating an untriggered anticipatory warrant as a traditional warrant could allow officers to enter premises without the triggering condition occurring and then rely on post hoc justifications. That, the court warned, could erode the particularity and neutral-magistrate requirements of Article 14 and widen police discretion.

Katherine Jansen, First Assistant District Attorney for the Commonwealth, argued that footnote 11 of Calandra left open whether an anticipatory warrant may be constitutionally valid if the triggering condition does not occur when the affidavit otherwise provides probable cause. “Commonwealth respectfully request that the court reverse the…