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Supreme Court to Review Anticipatory Search Warrants:
The Supreme Court announced today that it will consider the constitutionality of anticipatory search warrants, granting certiorari to review the Ninth Circuit's 2004 decision in United States v. Grubbs. I blogged about this topic and the Grubbs case back in August 2004:
  I have read a lot of Fourth Amendment cases over the last few years, but today I learned something new: several courts of appeals have allowed the government to obtain and execute "anticipatory" search warrants. According to these cases, the government can get a warrant even if their case for probable cause hinges on some future event. If the future event occurs, the warrant becomes operative and they can execute the search. If the future event does not occur, then the warrant is not yet operative and they cannot execute the search.
  The Ninth Circuit's most recent decision, last week's United States v. Grubbs, provides a helpful illustration. The police obtained a warrant to search a home for child pornography. The "condition precedent" was the receipt of child pornography that the suspect had ordered to be delivered to his home. The police obtained the warrant, and then waited for the item to be delivered. When it was delivered, the police executed the warrant.
  Maybe I am missing something, but I find this line of cases quite troublesome. The whole point of a warrant requirement is to have a neutral magistrate decide when probable cause exists. The decision to authorize the search is up to the judge, not the police officer. The addition of a condition precedent delegates that decisionmaking authority to the law enforcement officer, at least in part. Because the officer decides when the triggering event has occurred, the probable cause determination is no longer made entirely by the neutral magistrate.
  Although the Court has agreed to review Grubbs, it's hard to predict whether the Justices will look at the issues broadly or narrowly. The Supreme Court has never approved anticipatory warrants, so a majority of the Court may take this case to reject the very idea as inconsistent with the Fourth Amendment. On the other hand, Grubbs is a Reinhardt opinion ruling in favor of the defendant, and the SG's office filed its petition on a narrow ground seeking to reverse Reinhardt. The Question Presented in the petition filed by the SG's office is a narrow one: "Whether the Fourth Amendment requires suppression of evidence when officers conduct a search under an anticipatory warrant after the warrant's triggering condition is satisfied, but the triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched." The SG's Office presumably will try to frame the dispute narrowly; they'll present anticipatory warrants as well-established and uncontroversial, and focus on the details of how they are obtained. Counsel for Grubbs presumably will argue the case more broadly as a challenge to anticipatory warrants as a whole.

  What are the chances that the Justices will reject anticipatory warrants altogether? If it happens, I suspect the voting pattern will resemble something like the line-up in Blakely v. Washington (with the votes of Roberts and a possible O'Connor replacement anyone's guess, of course). I think Justices Scalia and Thomas are going to have serious problems with anticipatory warrants. The Fourth Amendment states that "no Warrants shall issue, but upon probable cause." Anticipatory warrants are warrants that issue without probable cause; the probable cause comes after the warrant has been issued. (Or at least that is often the case. There are really two types of anticipatory warrants: warrants issued based on probable cause to believe that there will be evidence in a particular place at a particular time in the future, and warrants issued based on the belief that there will be probable cause when some condition precedent occurs. I'm referring to the latter.) Scalia and Thomas will probably say that this is a no-no. And when Scalia and Thomas have pro-defendant inclinations in criminal cases, there are usually a few more votes from liberal Justices ready to join them.

  On the other hand, you can bet that Justice Breyer will uphold the basic idea of anticipatory warrants. Shortly before he became a Justice, Breyer approved anticipatory warrants under the Fourth Amendment in United States v. Gendron, 18 F.3d 955 (1st Cir. 1994). Here is Breyer's pragmatic take:
  In general, the simple fact that a warrant is "anticipatory"-- i.e., that it takes effect, not upon issuance, but at a specified future time-- does not invalidate a warrant or make it somehow suspect or legally disfavored. Warrants often do specify that they will take effect upon issuance. But the Constitution imposes no such requirement. Rather, it says that a search must not be "unreasonable," and that warrants must be supported by "probable cause." U.S. Const. amend. IV. There is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that, say, the marijuana will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant's search authority to the future event that brings with it the probable cause (e.g., the time of "delivery of a large brown package addressed to X with return address Y"). In principle, the use of a "triggering event" can help assure that the search takes place only when justified by "probable cause"; and anticipatory warrants may thereby offer greater, not lesser, protection against unreasonable invasion of a citizen's privacy.
  (Note how Breyer replaces the textual requirement that "no Warrants shall issue, but upon probable cause" with a somewhat different inquiry into whether the warrant "can help assure that the search takes place" when probable cause exists.) I have no idea which side will win out, but United States v. Grubbs should be an interesting case to watch.
PersonFromPorlock:
Couldn't the entire matter be mooted by having a judge always on tap? Why fiddle with the Constitution over a scheduling problem, unless it's unthinkable that judges should work nights and weekends? Oh....
9.27.2005 1:39pm
jgshapiro (mail):
Does Breyer's prior opinion on the same issue in Gendron require him to recuse himself from Grubbs when it gets to the Supreme Court?

If not, what is the difference between Grubbs, where Breyer has essentially decided the question before it gets to the Court, and Newdow, where Scalia had to recuse himself from the Pledge case for the same reason?
9.27.2005 1:49pm
Zubon (mail) (www):
Maybe I am just odd, but anticipatory warrants actually sound better than normal ones to me, in terms of ensuring that there is probable cause. Maybe it works differently in practice, but it sounds like a theoretical ideal to determine ahead of time exactly what would constitute grounds for a search warrant, before actually seeing if those grounds exist. That is, set your standards clearly and explicitly before reviewing the evidence, rather than allowing them to be muddled through as "good enough" when the time comes.

I work in program evaluation, not law. Ideally, we say before a program starts, "If x happens, then the program created benefits; if y happens, the program made things worse; if neither, we cannot prove an effect." Then you actually do the program, gather data, and evaluate it. Besides making the final evaluation a simple test, you avoid the urge to say, "Well, we didn't quite reach x, but it looks like we probably did some good, and we certainly didn't y, so why don't we call it a win?"

If we have a list of exactly what conditions must be met for there to be probable cause on a crime, we have a bright line for when the search could happen. There will always be cases needing individual inquiry, but one hopes that judges would consistently say, "If x, y, and z, then you will definitely get a search warrant." If there are consistent standards for when a search warrant is appropriate, then anticipatory warrants make a lot of sense.
9.27.2005 1:51pm
Stephen Macklin (mail) (www):
Don't we already invest law enforcement with a certain level of discretion in terms of probable cause or reasonable suspicion

If you get pulled over for speeding and the cop suspects you might be drunk he doesn't have to have a warrant to conduct a search (sobriety test).

In the case of the child pornography cited above if the cops new a suspect ordered the stuff, and knew when it was going to be delivered couldn't they just apprehend him in the act of receiving it on the basis of the fact that they had reasonable suspicion a crime was being committed?

Beyond that wouldn't there be the safeguard that evidence seized in the execution of an anticipatory warrant be subject to the same rules as any other evidence? Wouldn't evidence acquired by improperly executing such a warrant be excluded from trial?
9.27.2005 1:51pm
Steve:
This calls to mind the sorts of hypotheticals they used to kick around in Civil Procedure class. In regards to the common formulation that a preponderance of the evidence means a 51% likelihood that one side is correct, the professor posed the question: "Say you get hit by a bus, and you don't remember anything about the bus that hit you, but the evidence shows that 3 of the 5 buses that passed through town on the day in question were Greyhound buses. Can you recover from Greyhound, on the theory that it is 60% likely that their bus hit you?" As with all silly law professor hypotheticals, there are arguments both ways.

The relevance of this hypothetical is that Breyer is arguing, "If there is a 90% chance that an illegal substance will be in the home tomorrow, then there is probably cause to issue a warrant for a search tomorrow." He then goes on to say that an anticipatory warrant provides an even better assurance of probable cause than that scenario, and should thus be approved. But I think the original scenario is worth discussing. Is a 90% estimate that a future event will occur really what we mean by "probable cause"?
9.27.2005 2:02pm
Milhouse (www):
I don't see your objection. Judges never test the facts presented to them in order to obtain a warrant; they rely on the police to be telling them the truth, and decide whether, assuming those facts to be true, they constitute probable cause. Should the underlying facts turn out not to be true, the warrant can be challenged, and retroactively invalidated.

Here, the judge is giving the police exactly the same trust: to say that the event that would constitute probable cause has happened. What difference does it make whether the police make that determination before or after the warrant is issued? Either way, it's the judge who decides whether that fact constitutes probable cause, and if it turns out that the fact didn't happen after all, then the warrant never came into effect, and the search is invalid.

And this way, the police can't claim that they didn't know what was relevant. They've been told in advance what to look for, and if it doesn't happen they're on notice that they can't do the search.
9.27.2005 2:55pm
TC (mail):

In the case of the child pornography cited above if the cops new a suspect ordered the stuff, and knew when it was going to be delivered couldn't they just apprehend him in the act of receiving it on the basis of the fact that they had reasonable suspicion a crime was being committed?


But there is often much more to an investigation than just apprehending one individual. If you suspect that he has lots of child pornography, you (the investigator) want to be able to search his house immediately. He may have addresses or other important information on computers that you want. Most investigations like this aren't targeted at one person, and often it would be a waste of resources to do all of this work just for one person. Law enforcement officials are trying to break a whole network.

Also, some of this evidence can be time-sensitive. While that may not be the true in every case or hypothetical, it is true in some; and therefore, the anticipatory warrants DO have a utility for the law enforcement officer. If they're being used and are useful, then I think we certainly should have the SupCt decide on their constitutionality.
9.27.2005 3:21pm
Jerry Mimsy (www):
And this way, the police can't claim that they didn't know what was relevant. They've been told in advance what to look for, and if it doesn't happen they're on notice that they can't do the search.

Is this really true? It seems that law enforcement officers are given quite a bit of leeway; in the case of an anticipatory warrant, is the search valid if the officer reasonably believed that the event occurred?

For example, these scenarios:

1. Officer sees the target give a magazine to a child, and the officer testifies in the warrant that the cover strongly resembles a Playboy cover in style (but has no nudity and the officer did not see the title).

(a) is such a warrant likely to issue, and (b) If the warrant issues based on that evidence, and the magazine turns out to be Omni magazine (an old science fact/fiction magazine once published by Playboy but having no remotely salacious content, but the layout styles were occasionally similar), is the search still valid?

2. Officer is given an anticipatory warrant to search *if* the target gives a Playboy to a child. Officer sees a magazine exchange hands, the cover strongly resembles a Playboy cover, and the search commences. It turns out the magazine was an Omni. Is the search going to be ruled invalid?

What I'm trying to get at with these examples, probably poorly, are situations where a warrant would not issue based on the facts the officer notes; is it likely that such situations would make a valid search in the case of an anticipatory warrant; if not today, is it likely that this is a slippery slope?

Jerry
9.27.2005 3:26pm
Richard Bellamy (mail):
I agree with Zubon that anticipatory warrants will often be more protective of defendants. There is a Thurgood Marshall dissent that I recall (don't remember which case) that lists all the events that had been held as probable cause to stop a guy getting off an airplane (e.g., was the first one out/ was the last one out/ tried to blend in in the middle/ looked nervous/ was acting too calm, etc.). If the police had to say before hand, "I want to suspect X as he gets off the plane if he is doing Y," that prevents every possible action from being the basis of a probably cause search.
9.27.2005 3:48pm
A Blogger:
Bellamy,

You are thinking of reasonable suspicion, not probable cause. Important difference.
9.27.2005 3:56pm
eng:
Okay, I'm quite underinformed, but this scenario struck me as a form of entrapment.

The postal service (the government) possess some contraband. It knows it has this contraband. It brings this contraband to the target's home. The police sweep in and arrest the target for possessing the contraband.
9.27.2005 4:01pm
Mr. Jenkins (mail):
Eng,
You start the hypo late.
The POLICE know that someone at address ZZZ ordered the child porn. The police know it is in due to be delivered on or about YYY. The police don't know who ordered it. The police don't know if any other child porn is present. The police wait for delivery and upon delivery want an active warrant so that they can search.
9.27.2005 4:14pm
Shelby (mail):
Well, as far as entrapment goes, I don't think it's applicable if the recipient ordered the contraband, unless they were "entrapped", coerced, etc. into ordering in the first place.
9.27.2005 4:15pm
Bob1 (mail):
>Maybe I am just odd, but anticipatory warrants actually sound
>better than normal ones to me, in terms of ensuring that
>there is probable cause.

I think they're much worse. Why? Because probably cause normally rests on the acts of the alleged criminal parties. Anticipatory warrants can cite future events *orchestrated entirely by the cops themselves*. A warrant conditioned on "when a package arrives", for instance, when said package was sent by the cops themselves. The package need not contain contraband; the warrant was conditioned on its arrival, not its containing contraband. As long as the condition precedent can be trivially prearranged, anticipatory warrants become defacto fishing expeditions.
9.27.2005 4:53pm
Richard Bellamy (mail):
"You are thinking of reasonable suspicion, not probable cause. Important difference."

Nonetheless, the same logic applies. It is easy to gather facts and arrange them to look like criminality. A better approach is something closer to the scientific method: If my theory of criminality is true, then we can predict X. If X happens, that makes the theory more "probable."
9.27.2005 4:56pm
Zubon (mail) (www):
"As long as the condition precedent can be trivially prearranged, anticipatory warrants become defacto fishing expeditions."

Does this assume that judges are ignorant or easily manipulated? Why would a judge give a condition that can be trivially prearranged by police, or why would the ensuing search hold up if police fabricated the condition that fulfilled the warrant? I am not seeing the strength of this objection. It sounds as though you are assuming that police will work in bad faith and that there will be no after-the-fact judicial restraint. It would be easier for police to claim that they heard gunshots/screaming from inside and rushed to render immediate aid ("We were mistaken, but while we were in there, we happened to see...").

I rarely object to assuming malice and incompetence, but there are easier ways to implement those than getting an anticipatory search warrant that would not withstand a simple review. Milhouse's comments on review seem relevant here.
9.27.2005 5:48pm
garhane (mail):
Well yes, it is perfect entrapment. The police, as is their wont, assume some guy is very bad, often for the wrong reasons. They suspect this or that but they have no case. So they send a package of grass via the bus lines, and the package service delivers it to the door (or as in one recent case, the assumed miscreant's 13 year old son is sent down to the bus depot to pick it up) and then the police swoop down in large numbers , strike postures, talk about guns and loads, and generally behave like the quasi-gangsters they often are. Then we adjourn to the court where a number of them will swear effortlessly and identically to the circumstances without even the sound of gears changing. "Anticipatory warrant" is a fancy name for set up. Visit a police frequented bar some time, and listen.

Judges who like the idea of this are undoubtedly the same people who find juries a nuisance and procedural protections for accused persons "far too time wasting".
9.27.2005 6:42pm
Joel Franklin (mail):
"It sounds as though you are assuming that police will work in bad faith..."

That seems a reasonable assumption. Several of the amendments in the Bill of Rights assume that the police will act in bad faith. If you believe that they won't, then why limit their actions at all?
9.27.2005 7:08pm
A Blogger:
Bellamy,

No, the same logic does not apply. Police officers can't get a reasonable suspicion warrant; they can, and must, get a probable cause warrant. The question is, who decides there is probable cause -- the judge or the police officer? The warrant requirement is designed to give that decision to the judge.
9.27.2005 8:10pm
DWPittelli (mail) (www):
"no warrants shall issue, but upon probable cause, supported by oath or affirmation"

It seems clear to me: It's the issuance of warrants (not the search itself) that depends on probable cause. And the issuance must come after the probable cause, not just because "upon" can (but doesn't always) mean happening right after something, but because the probable cause must be "supported by oath or affirmation."

One can swear to act in a certain way, but as noted earlier, one can't know all the possible contingencies of a future event, and more important, the judge cannot meaningfully question the evidence of probable cause prospectively, so I don't see how one can speak under oath or give legal affirmation prospectively, which is allowed if such warrants are upheld, and which might lead to further dangers [last paragraph].

A related note: while a warrant must "describ[e] the place to be searched," I understand that can now include various phones whose numbers are not yet known, but which are, after the issuance of the warrant, found to be used by a suspect person. For some reason this bothers me less than the previous example, but I don't know why.

Finally, why not combine the two concepts, with a judge giving a blanket warrant to search any address later found [by the police, not the judge, naturally] to belong to a certain criminal, or to which a certain type of parcel has been delivered?
9.28.2005 12:11am
Yankee_Mark:
I could easily see a warrant for an anticipated event being pre-processed and held by the judge until the officer can swear/attest/verify that the triggering event has occured, and still bear the burden of convincing the magistrate that it has. Would this not square the circle?

There is an assumption of an on-call judge here ... but surely if some really gnarly events occur in the wee hours, the idea remains that 24/7 warrant processing is necessary regardless. Otherwise ... I'd agree that the anticipatory warrant would have serious problems with the oath/affirmation requirement
9.28.2005 1:29am
AMalani (mail):
This is a bit repetitive of many of the sentiments above. Doesn't a warrant with out a condition give the police an option to execute the warrant? The police can choose not to execute. Indeed, they can personally choose the conditions upon which they will execute. In other words, an unconditional warrant (greater power) includes the power to act only upon a condition (lesser power). Moreover, a warrant with a condition imposed by a court is and even lesser power because the court imposed the condition, not the police.

It is interesting to wonder both how the Court will come out on this case, and how courts and police will respond if conditional warrants were deemed illegal. Would all courts just grant unconditional warrants where they would have granted only conditional ones? This would be bad for defendants. If courts do not simply substitute unconditional for conditional warrants, will police simply stretch the facts of cases to get unconditional warrants (which we might suspect they'd do if they'll abuse unconditional warrants)? Perhaps neither of these will happen, and police simply won't get warrants where they previously got unconditional warrants. Most likely, we'll see a combination.

Then we'd have to consider how police change their investigation tactics. Do they do as some of the previous posts suggest and arrest the receipient as s/he takes delivery of a package? Etc. It is probably safe to predict that police resources required for any given level of enforcement would rise.

The broader issue is whether some ostensibly progressive reforms of criminal justice rules have regressive effects on enforcement given bad behavior by a subset of the police force.
9.28.2005 10:20am
Ronald D. Coleman (mail) (www):
"Anticipatory warrants" does sound the test in civil discovery practice of the scope of discovery -- any matter "reasonably calculated to lead to the discovery of admissible evidence." But surely it's not that broad. Still, the comparison springs to mind.
9.28.2005 10:31am
brosen72 (mail):
This case is interesting to me because it seems like an instance in which the judiciary is changing the constitution from what it actually says to what a judge wishes it said. As an who greatly disfavors judicial re-writing of the constitution to fit what a particular judge believes to be practical or wise—in a democracy, it is undoubtedly the role of political bodies, the executive, the legislature, delegated agencies, etc., to make and codify such judgments—this irks me a little, particularly Breyer's rationale in the lower case.

On the other hand, I'm not sure re-writing of the type Breyer engaged in is necessary. Granted, I have little more than basic law school knowledge about the case law here, but it seems to me that even when approaching this as an originalist, the outcome still could go either way. The outcome turns on what the constitution means by a warrant being issued. Is a warrant issued when the magistrate hands it to the police officer even though it is not yet executable because certain conditions have not yet been met? Or is a warrant issued when it becomes executable? If the latter (and really if the latter comports with the original understanding of the provision) then anticipatory warrants should be constitutional even to originalists.
9.28.2005 12:47pm
Tom O'Bedlam:
I've never thought about the Fourth Amendment in the context of the "cases and controversies" requirement, but isn't that an issue here? Doesn't asking a judge to rule that "if a certain situation were to come into existence, that would constitute probable cause" steer perilously close to asking for an advisory opinion?
9.28.2005 7:49pm
bld (mail):
I wonder how far this could stretch.

Could a law-and-order judge set up a warrant mill? Say, take a list of petty offenders from the last year, anticipate them doing it again, and just issue one for each? Maybe several for each one, anticipating related offenses?

Could we just automate this?

Could we anticipate not only events, but people? Could a cop get a warrant for "someone who performs illegal looking action X?"
9.29.2005 6:14pm