Search and seizure – Anticipatory warrant

Listen to this article

Where a defendant has moved to suppress evidence found during a search of his apartment pursuant to an anticipatory warrant, the motion should be denied despite the nexus and overbreadth issues raised by the defendant.

“Defendant Stephen Marsden, who is charged with federal cocaine-related and firearms offenses, seeks to suppress a search of his apartment at #901, 100 Cove Way, Quincy, Massachusetts, as well as the seizure of incriminating items found by police in his home. …

“The essential facts disclosed in the warrant are as follows. In March of 2023, a joint drug investigation task force comprised of the Massachusetts State Police (MSP) and the United States Postal Inspection Service, began investigating packages being shipped from anonymous persons in Puerto Rico to fictitious persons allegedly residing at apartments #303 and #404 in a multi-unit apartment building at Cove Way in Quincy. The delivery of six such packages was traced by the officers to the reception area (alcove) of the apartment complex. The first five packages were delivered without being searched. Police surveillance established that all five of the packages were retrieved from the alcove by Marsden, who resided with his wife in apartment #901 of the complex. On four of the five occasions, Marsden retrieved the packages from the alcove and then retreated towards his apartment in the interior of the building. The suspicious nature of the packages and the even more telling behavior of Marsden after taking them into possession is set out in meticulous detail in the supporting affidavit by MSP Trooper Kevin Tufts, a well-trained and experienced narcotics detective.

“The sixth package, which brings us to the search, arrived at a Quincy area postal facility on May 23, 2023, in transit to Cove Way. The package exhibited the same indicia of suspicion as its five predecessors and weighed some 7.8 lbs. (3 kilograms). The investigating officers summoned a drug-sniffing dog, Charlie, and his experienced handler. Charlie, who is certified as a drug-detection canine, with hundreds of hours of training and the certificates to prove it, has in his eight years in law enforcement been responsible for the detection of over 100,000 grams of cocaine with a street value of over $2,000,000. Charlie alerted immediately to package #6, supporting the investigators’ belief that the package contained cocaine.

“At that point, officers sought and obtained the anticipatory warrant from a Quincy District Court Clerk-Magistrate authorizing the search of package #6 and conditi0onally Marsden’s apartment # 901 at Cove Way. …

“Marsden’s objection to the warrant is two-fold. First, he contends that there was no basis on which the Clerk-Magistrate could have inferred that evidence of drug activity would be found in his apartment (#901), as opposed to apartments #303 and #404, which were used as drop sites (that is, he alleges an insufficient nexus); and (2) that the warrant did not specifically authorize the seizure of firearms from his apartment, or alternatively, that there was no basis to believe that firearms are implements used in the conduct of the drug trade (that is, overbreadth).

“… Significant authority supports the inference that a successful drug dealer is likely to keep drugs, proceeds, and records of drug dealing in his home. … The inference that records and paraphernalia will be found in a defendant’s home is particularly compelling when a large-scale, multi-kilo dealer is using his home as a base of operations, and as was the case with Marsden, masquerading phantom destinations as diversionary ‘drop-off’ sites for the delivery of his drug supply. The officers’ surveillance of Cove Way never detected any one of the pseudonymous occupants of apartments #303 or #404 to be involved with the retrieval or further delivery of the six suspicious packages.

“There is also no tenable support for Marsden’s objection that the police exceeded the scope of the search authorized by the Clerk-Magistrate by, extending it to the bedroom in the apartment and his (open) safe. If there is probable cause to believe that criminal activity is afoot in one room of a household, a warrant to search the entire dwelling and its appurtenances is not overly broad. … The intensity of a search ‘is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’ … Any unlocked or locked container on the premises that could reasonably conceal an item described in the warrant may be opened and searched. … Officers in this case were well justified in searching Marsden’s open safe (where the firearms were found) and would have, if necessary, been justified in breaking its lock. Finally, as a matter of law, the warrant’s authorization of the seizure of ‘implements, and other articles necessary for the business of distributing controlled substances’ is reasonably interpreted as including firearms found in proximity to evidence of drug-dealing. It is well-recognized by courts that firearms are standard tools of the drug trade. …”

United States v. Marsden (Lawyers Weekly No. 02-002-26) (8 pages) (Stearns, J.) (Criminal Action No. 23-10284-RGS) (Jan. 3, 2026).

Click here to read the full text of the opinion.