specially concurring.
When officer Ericsson signed the affidavit for the search warrants, the only basis for believing that drugs would be found in Wright’s residence was the anticipated delivery of a quantity of methamphetamine by Burnside. The magistrate should have directed that the search warrant not be served until the officers had confirmed, by some observable means, that Burnside had likely effected a “delivery” of drugs to Wright’s residence.
As noted in the lead opinion, in People v. Glen, supra, the New York court cautioned that “the issuing Judge should be satisfied that there is no likelihood that the *1050warrant will be executed prematurely.” People v. Glen, 282 N.E.2d at 617. This same concern was voiced by the Supreme Court of Alaska in Johnson v. State, 617 P.2d 1117 (1980). The Court there noted:
For an anticipatory warrant to be valid, there must be probable cause to believe that the items to be seized will be at the place to be searched at the time the warrant is executed, or in other words, that the warrant will not be prematurely executed. See United States ex rel. Beal v. Skaff, 418 F.2d 430, 433 (7th Cir.1969); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 659, 282 N.E.2d 614, 617 (1972). In this case, it was reasonable to conclude that the police would not frustrate their efforts to apprehend Raymond Johnson in possession of the drugs by executing the warrant before the package was delivered to him. See Alvidres v. Superior Court, 12 Cal.App.3d 575, 579, 90 Cal.Rptr. 682, 686 (1970). We think it most appropriate in anticipatory warrant situations, that the magistrate insert a direction in the search warrant making execution contingent on the happening of an event which evidences probable cause that the-item to be seized is in the place to be searched, rather than directing that the warrant be executed immediately or forthwith. As applied to the instant case, the warrant should have stated that execution was authorized only after the police had probable cause to believe that the package had been delivered to Raymond Johnson.
617 P.2d at 1124, footnote 11.
Here, the officers applied for the search warrant on the morning of August 29, 1986. Officer Ericsson told the magistrate that an informant reported Burnside would be returning to Idaho Falls with “more methamphetamine” sometime before September 2. In regard to the requested warrant to search Burnside’s vehicle and his person, Officer Ericsson had the following dialogue with the magistrate:
OFFICER ERICSSON: There’s a good chance that he will be coming in during the night to make his deliveries. He drives in from Boise and makes a delivery and will probably leave the same night when he does it.
THE COURT: So if he comes in during the night, you want the right to search him in the night?
OFFICER ERICSSON: Right. If we find him during the night — we don’t have any certain place to wait for him to know when he’s coming into town, we can only check the residence we know he’s going to deliver at. So if it’s at nighttime that we locate him, we can get a search team together—
Accordingly, the magistrate authorized a nighttime search of Burnside’s vehicle on this warrant.
Officer Ericsson relied upon the same information to obtain a search warrant for Wright’s residence. It is obvious that the officers were anticipating that Burnside would be delivering methamphetamines to Wright’s residence. Later, at the suppression hearing, Ericsson testified that it was the officers’ plan to “wait until Robert Burnside had arrived with the drugs” before searching Wright’s residence.
Early in the morning of August 31, officers spotted Burnside and his vehicle in Idaho Falls as Burnside stopped at a restaurant. The vehicle was searched pursuant to the search warrant issued two days earlier. Less than an ounce of methamphetamine was found concealed in the vehicle. See State v. Burnside, 115 Idaho 882, 771 P.2d 546 (Ct.App.1989).
I agreed in Burnside that the warrant to search the Burnside vehicle was supported by probable cause. The appearance of Burnside and his vehicle in Idaho Falls at the time predicted by the informant gave visible confirmation to the report. This “appearance” was the anticipated event upon which the warrant was implicitly conditioned. The danger that the warrant would be served prematurely, that is, before Burnside made any deliveries, would not affect the probable cause analysis. Obviously, if Burnside was intercepted before he made the anticipated deliveries, there should be a greater likelihood of drugs being found in his vehicle.
*1051After searching the Burnside vehicle, the officers executed the search warrant on Wright’s residence at approximately 7:30 a.m. Nothing in the record on appeal indicates that the officers had observed Bum-side meeting Wright or going to Wright’s residence before they initiated the search of Wright’s residence. The officers had no “positive” evidence that the anticipated delivery of drugs to Wright’s residence had occurred. Following issuance of the search warrant for Wright’s residence, the only significant occurrence was Burnside’s appearance in Idaho Falls where he and his vehicle were spotted by a policeman at a restaurant at 3:00 a.m. It could be argued that the absence of significant amounts of methamphetamine in Burnside’s vehicle when searched was an indication that the anticipated deliveries already had been made. However, this inference arises from “negative” evidence, not positive evidence. Moreover, other inferences, just as reasonable can be drawn from the failure to find the expected large amount of methamphetamine in Burnside’s vehicle. In short, probable cause for the search of Wright’s residence was lacking both at the time the warrant was issued and at the time it was executed.
Although the district court held that there was probable cause to issue the warrant and that the warrant was otherwise valid, the court nevertheless also concluded that even if probable cause was lacking the search ought to be-upheld. In this “backup” ruling the district court analyzed the search under the guidelines of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and concluded that the good-faith exception to the exclusionary rule would apply to the search of Wright’s residence. On appeal the state has urged this alternate ground for upholding the order denying Wright’s motion to suppress. The appellant has not presented any direct refutation of the state’s argument.
After reviewing the district court’s findings and conclusions I am satisfied that the Leon good faith exception to the exclusionary rule was applied properly here. See, e.g., United States v. Hendricks, 743 F.2d 653 (9th Cir.1984). Accordingly, I concur in the result to uphold the search in this case.