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.