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 allowance of the motion to suppress,” Jansen said, and argued the magistrate necessarily considered the affidavit as a whole when issuing the warrant. She told the court an anticipatory warrant can be valid at issuance if the facts sworn under oath provided probable cause to search the location at that time.

A justice asked whether adopting the Commonwealth’s position would give police a “blank check.” Jansen acknowledged the court’s concern about unfettered discretion but argued the court’s excising cases and Calandra allow courts to assess whether remaining information would have supported issuance. She noted the affidavit in this case ran roughly 33 pages and said review should focus on what was before the magistrate.

Maspero, representing Victor Mercedes, told the court the Commonwealth’s approach would permit officers to “ignore the court’s carefully laid out procedure in Calandres and permit them unfettered discretion.” He urged the court to follow the line of cases, including this court’s prior decisions, that treat an anticipatory warrant as void if the triggering event does not occur. Maspero emphasized that Article 14 offers greater protection than the Fourth Amendment and that permitting post hoc recasting of the probable-cause analysis would allow “leisured retrospective analysis” to justify otherwise unreasonable searches.

Justices pressed both sides on practical and doctrinal lines. One justice quoted Calandra: “implicit in the definition of an anticipatory warrant is that the occurrence of the so‑called triggering condition specified in the affidavit is necessary to establish probable cause and therefore is a condition precedent to the execution of the warrant,” and asked whether the Commonwealth’s position effectively transforms an anticipatory warrant into a traditional warrant simply by looking at the affidavit’s remaining material. Counsel for the Commonwealth responded that if a magistrate, having the affidavit sworn under oath, had probable cause at issuance then the warrant should be treated as valid even if styled anticipatory; counsel for the defendant responded that the proper procedure where the Commonwealth wishes a non‑anticipatory review is to present the affidavit to the magistrate for a traditional‑warrant determination (the Calandra procedure), rather than permit retrospective justification after execution.

Both sides agreed the record includes officer testimony that the officer did not believe he could enter the residence if the triggering event did not occur (March 26 transcript, page 48), an evidentiary fact the defense used to argue the search was not performed in good faith under any arguable Calandra procedure. The court repeatedly pressed whether allowing the Commonwealth’s approach would collapse the warrant requirement into a post‑hoc review that encourages entry and then later justification.

The justices also explored circuit authority the Commonwealth cited and whether any appellate courts have squarely adopted the Commonwealth’s position; counsel acknowledged differing federal circuit approaches and that no U.S. Supreme Court precedent resolves the issue. The court asked whether a First Circuit line (Vignot‑type cases) should control; the defense said those decisions are outliers in Article 14 analysis.

The argument closed with counsel on both sides addressing whether Article 14’s particularity and neutral‑magistrate protections require a magistrate’s contemporaneous probable‑cause determination tied to the warrant’s authorized triggering conditions, or whether courts may later treat an anticipatory warrant as a traditional one based on the affidavit’s other contents.

A decision date was not announced from the bench at the close of argument.