When are anticipatory search warrants valid?

In United States v. Grubbs, the Supreme Court held that anticipatory search warrants are constitutionally permitted. More controversially, it ruled that these warrants do not have to specify the triggering event, as long as the affidavits made in support of them do so. (1)

In Grubbs, the defendant purchased a videotape containing child pornography from a Web site operated--unfortunately for him--by an undercover postal inspector. The Postal Service arranged a controlled delivery to Grubbs and obtained an anticipatory search warrant. The affidavit, but not the warrant, specified the triggering event, stating that "execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence...."

After they delivered the videotape, investigators searched the house and seized a number of items. Grubbs moved to suppress this evidence, claiming, among other things, that the warrant was invalid because it failed to name the triggering event. After the district court denied his motion, Grubbs pleaded guilty but reserved the right to appeal the court's decision on the motion to suppress.

On appeal, the Ninth Circuit reversed, holding that "the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant." (2) That is, even though the conditions precedent were spelled out in the affidavit, the failure to include them in the warrant--or to present the affidavit to Grubbs when the warrant was executed--was fatal error. The Supreme Court, in its turn, reversed this holding.

Probable cause and particularity

The first issue Grubbs raised is whether anticipatory search warrants violate the probable cause requirement of the Fourth Amendment. The Supreme Court, like the Ninth and other circuits, unanimously said they do not.

It might seem that before the triggering event has occurred, there is no probable cause to issue a warrant, but the Court pointed out that all search warrants are, in a sense, "anticipatory," amounting to a "prediction that the item will still be there when the warrant is executed." (3) For this reason, "when an anticipatory warrant is issued, 'the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.'" (4)

The Court stressed that there must be "probable cause to believe the triggering condition will occur." (5) A police officer's hunch that a narcotics transaction will take place at a certain location would not be adequate grounds for an anticipatory search warrant--even though probable cause would arise once the sale occurred.

The second issue Grubbs brought up was the failure of law enforcement agents either to include the triggering condition in the warrant or to give the defendant a copy of the affidavit containing a description of the triggering condition. On this question, the majority rejected the Ninth Circuit's notion that the particularity requirement of the Fourth Amendment mandates that triggering conditions be spelled out in search warrants.

The Court pointed out that the Fourth Amendment "does not set forth some general 'particularity requirement.' It specifies only two matters that must be' particularly describ[ed]' in the warrant: 'the place to be searched' and 'the persons or things to be seized.'" (6)

The respondent argued that listing the triggering condition in the warrant is necessary to "assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." (7) But, the Court noted, this argument "assumes that the executing officer must present the property owner with a copy of the warrant before conducting his search." (8)

The Court found that the Fourth Amendment does not impose any such requirement. "The Constitution protects property owners not by giving them license to engage the police in a debate over the basis of the warrant, but by interposing, ex ante, the 'deliberate impartial judgment of the judicial officer ... between the citizen and the police,' and by providing, ex-post, a right to suppress evidence improperly obtained and a cause of action for damages." (9)

Justice David Souter, joined by Justices John Paul Stevens and Ruth Bader Ginsburg, concurred in the result but wrote to "qualify some points." He argued: "It is fair to say that the very word 'warrant' in the Fourth Amendment means a statement of authority that sets out the time at which (or in the case of anticipatory warrants, the condition on which) the authorization begins." (10)

It is as obscure to me as it apparently was to the majority why "the very word 'warrant' in the Fourth Amendment" somehow settles the issue before the Court. But Souter's real concern may be: What would happen in a case of defective execution of an anticipatory warrant?

Suppose that a magistrate issues an anticipatory warrant, but the officers executing the warrant--not the same ones who obtained it--don't know that the triggering event has not occurred as it was described in the affidavit. The police execute the warrant anyway and find evidence. Can the government use this evidence? To make its case, the government might argue that United States v. Leon allows the evidence to be admitted under the "reasonable good-faith exception," since the executing officers didn't know the details of the condition precedent. (11)

Souter seems to argue that if the triggering condition were specified on the face of the warrant, it would be more difficult for police officers to escape the consequences of such a mistake, (12) perhaps because the homeowner could point out their misapprehension to them or because their mistake would be more obviously "unreasonable."

If so, Souter's concern is misplaced. A mistake in executing the warrant is a mistake by police officers, not by the magistrate. Consequently, it does not fall under the Leon good-faith exception, and the evidence should be suppressed? (13) Such a mistake would be inherently unreasonable, regardless of the officers' good faith. (14)

In short, the majority is correct to conclude that the Fourth Amendment permits anticipatory warrants, prudent to require probable cause that the triggering event will occur, and right to hold that the particularity requirement of the Fourth Amendment does not require spelling out the triggering event in the warrant, as long as it is in the affidavit.

Still, the Court should have clarified that mistakes in executing anticipatory warrants, like errors in executing other warrants, receive no protection under Leon's good-faith exception. On the other hand, if the affidavit fails to set forth probable cause that the triggering event will occur, as is now required, this would be a mistake by the magistrate and subject to the Leon exception.

Notes

(1.) 126 S. Ct. 1494 (2006).

(2.) 377 F.3d 1072, 1077 (9th Cir. 2004).

(3.) Grubbs, 126 S. Ct. at 1499.

(4.) Id. (citing United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989)).

(5.) Id. at 1500.

(6.) Id.

(7.) Id. at 1501 (quoting United States v. Chadwick, 433 U.S. 1,9 (1977)).

(8.) Grubbs, 126 S. Ct. at 1501. This question had been left open in the 2004 case Groh v. Ramirez, 540 U.S. 551, 552 n. 5 (2004).

(9.) Grubbs, 126 S. Ct. at 1501 (citing Wong Sun v. United States, 371 U.S. 471, 481-82 (1963)).

(10.) Id. at 1502 (Souter, J., concurring).

(11.) 468 U.S. 897 (1984).

(12.) The same consequences suffered by the authorities in Groh, where a warrant was declared invalid because it failed to describe a house to be searched even though the affidavit had done so.

(13.) The Leon Court recognized that mistakes in execution would lead to exclusion. 468 U.S. at 918n. 19.

(14.) Groh did not involve a mistake in execution. Rather, it refused to extend the Leon exception to a warrant that was defective on its face when the constitutionally mandated particularity requirement was violated.