n March 21, 2006, in United States v. Grubbs, the U.S. Supreme Court approved the use of an anticipatory search warrant.1 In doing so, the Supreme Court reversed a ruling by the U.S. Court of Appeals for the Ninth Circuit2 that had invalidated the search warrant used in this case for failure to include a triggering condition in the warrant itself. After examining the concept of an anticipatory search warrant, the Supreme Court concluded that it was, in principle, consistent with routine search warrants and did not violate constitutional requirements. In addition, the Supreme Court found that where a triggering condition was specified in the search warrant application or affidavit, the failure to include the triggering condition in the warrant did not undermine the warrant's validity.
The Facts of the Case
Jeffrey Grubbs purchased a videotape containing child pornography from an Internet undercover operation of the U.S. Postal Inspection Service. The agency then planned a controlled delivery of the video to Grubbs at his residence. As part of the preparation, an inspector submitted an affidavit for an anticipatory search warrant which included the following conditions:
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. . . . At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant's command [citation omitted; emphasis added].3
An anticipatory search warrant was issued based on information provided in the application and affidavit about the undercover operation, including the triggering conditions. The warrant, however, did not explicitly mention the triggering conditions.4
Within days after the warrant was issued, a controlled delivery was made of the video. The video was accepted by Grubbs's wife and taken unopened into their residence. Grubbs left the residence shortly thereafter and was detained, and the search warrant was executed. After approximately a half-hour, Grubbs was given a copy of the warrant. Grubbs was arrested after he voluntarily spoke with investigators and admitted purchasing the video. The video and other items were seized from the residence.
Grubbs was indicted federally for "receiving a visual depiction of a minor engaged in sexually explicit conduct." He then moved to suppress the evidence obtained from his residence. Grubbs argued that the failure to include the triggering condition in the warrant, among other things, had invalidated it. After the district court denied Grubbs's motion to suppress, he pleaded guilty, reserving the search question for appeal.
The Ninth Circuit Court of Appeals reversed the denial of the motion to suppress and invalidated the warrant based on its precedent applicable to triggering conditions not contained in the search warrant.5
The U.S. Supreme Court's Analysis
Before the Supreme Court began its analysis of the issue raised in the Ninth Circuit's opinion, it felt logically compelled to address the threshold issue of the constitutionality of anticipatory warrants in general6 and the particularity clause of the Fourth Amendment.
Constitutionality of Anticipatory Warrants: The Court defined an anticipatory warrant as one "based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." Grubbs had argued that a search warrant requires that there must be probable cause to believe that an item of evidence exists at a particular place at the time when the warrant was issued. Otherwise, the warrant was issued without probable cause, which was the claim in this case because the controlled delivery had not yet taken place.
The Court agreed that there must be probable cause, which "is a fair probability that contraband or evidence of a crime will be found in a particular place." In the case of an anticipatory search warrant, probable cause involving a triggering condition requires "also that there is probable cause to believe the triggering condition will occur."
But the probable cause requirement includes facts that create probable cause to believe events will occur in the future that will lead to discovery of the objects described in the warrant when the search takes place. The focus of the will-be-found requirement is the time when the search warrant is executed and not when it is issued. The court noted the fact that "all warrants are, in a sense, anticipatory." This is because they involve a prediction that evidence will be present in a location at the point in the future when the search takes place.
The Court further noted that the nature of future conduct becomes even more apparent in the context of electronic surveillance. This is because the approved object of the search is communications that do not presently exist but are sought in the future during the time of the approved surveillance.
The Court concluded that anticipatory warrants are "no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed."
The Particularity Clause: The Ninth Circuit held that the triggering condition of an anticipatory search warrant must be in the warrant or "sufficiently incorporated into the warrant."7 In evaluating the ruling of the Ninth Circuit, the Supreme Court began with an examination of the wording of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Upon review, the Court concluded that the only two things that must be particularly described in the warrant are "the place to be searched" and "the persons or things to be seized."8
In reversing the Ninth Circuit, the Court noted that while the Fourth Amendment requires that all searches be reasonable, it does not contain a requirement for warrants to provide a "specification of the precise manner in which they are to be executed."9
Cautionary Guidance in the Concurring Opinion
In a concurring opinion, several justices cautioned that, while failure to specify triggering conditions in the warrant is not required, it should be a matter of good professional practice. The opinion noted that failure to do so may result in unanticipated and unfavorable results. For example, a situation could arise where officers who are unaware of the triggering condition execute the warrant prior to meeting the actual condition. This failure and others would be ones for which, the concurrence warned, the government would be held responsible.10
Recommendations and Conclusion
The U.S. Supreme Court's approval of anticipatory search warrants serves as an acknowledgment of the practicalities involved in the successful investigation of crime where law enforcement techniques such as controlled deliveries are required. At the same time, the Court reaffirmed the traditional constitutional function of search warrants.
To capture the full benefits of this decision, it is necessary to avoid potential problems that may result from omissions or other technical errors in search warrants or related documents. Supervisory officers must continue to ensure that the issuing magistrate and the executing officers are fully aware of any required conditions and that those conditions be described in appropriate documents before the anticipatory search warrant is executed.
This column discusses the effect of U.S. Supreme Court interpretations of the U.S. Constitution on law enforcement practices. Readers should consult agency counsel for the potential impact of the state constitution, statutes, or regulations as well as department policy on police practices in their jurisdiction. ■