In Parker v. Texas, PD-0388-21 (Tex. Crim. App. July 27, 2022), the appellant was charged with possession with intent to deliver four hundred grams or more of psilocybin. The appellant argued that the search warrant was illegal because probable cause did not exist when it was issued since the psilocybin had not yet been delivered to his residence. The Texas Court of Criminal Appeals considered, as a matter of first impression, whether all anticipatory search warrants are prohibited under Texas law. 

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Anticipatory warrants

The Court explained that an anticipatory warrant is a warrant based upon an affidavit showing probable cause that at some future time certain evidence of crime will be located at a specified place. Most anticipatory warrants subject their execution to a so-called “triggering condition.” In this case, the triggering condition was the confirmation of the delivery of packages that the United Parcel Service (“UPS”) and law enforcement identified as containing psilocybin. 

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Tex. Code Crim. Proc. art. 18.01(b)

Tex. Code Crim. Proc. art. 18.01(b) sets out that “no search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance.” The appellant argued that the phrase, 

“probable cause does in fact exist,” is a present possession requirement that must exist at the time the search warrant is issued.

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It was reasonable for the magistrate to determine that probable cause did in fact exist at the time of the issuance of the warrant

The Court explained that probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at the specified location. In this case, the affidavit established that the contraband had already been discovered, was in the process of being transported to the designated location, and would arrive on the date of the search. Thus, when the magistrate issued the warrant, they knew that the items to be seized constituted evidence of an offense, that a specific Texas law violation would soon be committed, and that the psilocybin would be located at the appellant’s address on June 9th. Based on these facts, it was reasonable for the magistrate to determine that probable cause did “in fact exist” at the time they issued the warrant. 

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There is no present possession requirement in article 18.01(b)

The Court found that there is no present possession requirement in article 18.01(b). Article 18.01(b) contains no specific language requiring that the items sought be at the location when

the affidavit is submitted, only that the affidavit establishes sufficient facts to support the

requested search. Additionally, the Court noted that another article, article 18.01(c)(3), which governs mere evidentiary warrants, contains a present possession requirement. Thus, the Court reasoned that if the Legislature had intended that all warrants require present possession, then there would be no need to create a separate rule for warrants under that article. This case did not involve a mere evidentiary warrant. It involved a narcotics warrant and thus article 18.01(c) did not apply. 

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Disposition

The Court held that unless the article for the search warrant contains a present possession requirement, the Texas Code of Criminal Procedure does not prohibit anticipatory search warrants. Instead, searches are allowed when a magistrate finds probable cause to believe that evidence will be found upon the occurrence of some condition precedent event. Therefore, the Court affirmed the judgment of the court below upholding the search warrant.