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Oral Argument in United States v. Grubbs:
SCOTUSblog has a preview of the oral argument tomorrow in United States v. Grubbs, the anticipatory warrant case. (For my earlier posts on this case, see here and here.)

  The argument promises to be fascinating. The defendant's brief makes a direct textual and historical challenge to the very concept of anticipatory warrants, and it's the kind of argument that I think should be very appealing to Justices Scalia and Thomas. The argument is that the Fourth Amendment's warrant clause means what it says: "no Warrants shall issue, but upon probable cause." Anticipatory warrants are warrants issued before probable cause exists; the idea is that when a future event occurs, probable cause will exist, so the police can execute the warrant whenever it happens.

  There are reasonable policy arguments for why anticipatory warrants don't disrupt this scheme very much, at least if regulated carefully; Justice Breyer endorsed them back when he was on the First Circuit. But my guess is that Scalia and Thomas are going to focus heavily on the text of the Fourth Amendment instead of the policy arguments, and a few other Justices are going to be worried about how anticipatory warrants can water down the warrant requirement. Stay tuned.
cirby (mail):
Shouldn't anticipatory warrants really be called "don't bother the judge when he's sleeping or playing golf" warrants?
1.17.2006 10:05pm
Mary Katherine Day-Petrano (mail):
The above comment is very demeaning to a judge. Are you a lawyer, cirby? If I ever said anything like that to any of the federal judges before whom my cases are pending, I woul;d not want to think about my fate.

It is very interesting, however, what might be the effect of anticipatory warrant + evading FISA to "disrupt" "potential" "future terrorists."
1.17.2006 10:31pm
Justin (mail):
6-3 or 7-2 in favor of anticipatory warrants. In cases like this, the text and policy arguments are pretty much irrelevant for the most part, with Justice Breyer's personal history excluded. The fight is over the very basic conception of government discretion.\

PS..I wouldn't be shocked if Breyer dissents. I'd be more shocked if Stevens dissents, actually.
1.17.2006 10:45pm
JLR (mail) (www):
Thanks for the post Prof. Kerr. While posing a different 4th Amendment question than the one posed in U.S. v. Grubbs, Justice Scalia's majority opinion in Kyllo v. U.S. ((533 U.S. 27 [2001]), which Justice Thomas joined, is a specific 4th Amendment decision whose analysis might intimate Scalia and Thomas's receptivity to Grubbs's argument. That majority decision also was joined by Justices Souter, Ginsburg, and Breyer. Whether any of those three will agree with Scalia on Grubbs remains to be seen.
1.17.2006 11:17pm
Milhouse (www):
I think the text is perfectly consistent with such warrants. You're reading "upon" as if it meant "after"; I don't see why it has to mean that.

It would be different if judges were in the habit of testing the evidence for probable cause. But they don't; they take the police's word that the facts presented in the affidavit are true, and their only role is to assess whether those facts, if true, constitute probable cause for the search. They can do that just as well with facts that haven't happened yet.
1.17.2006 11:25pm
cirby (mail):
The above comment is very demeaning to a judge. Are you a lawyer, cirby?

Yes, it is demeaning to a judge who issues such a warrant. For good reason.

And no, I'm not a lawyer. Is it now necessary to be a lawyer to point out that some legal practices are wrong, or that judges who agree to them are, indeed, being lazy? If I mention that a certain judge's habit of getting snockered at lunch leads to some very bad afternoon court experiences, do you think I should get my law degree before calling a drunk a drunk?

The FISA/et cetera situation is a hard one, but I'm reminded of a fellow named Stinson, who once shut down the US cryptographic efforts, commenting that "gentlemen don't read each other's mail."
1.17.2006 11:28pm
Defending the Indefensible:
Milhouse,

No, upon can mean at the same time as. Upon receipt of A, I may immediately do B. Upon probable cause, warrants may issue.

Anticipatory warrants are issued prior to the existence of probable cause, so it is more correct to say that upon probable cause, such warrants may be executed. But that does require a pretty radical reinterpretation of the Fourth Amendment.
1.17.2006 11:48pm
OrinKerr:
I think the text is perfectly consistent with such warrants. You're reading "upon" as if it meant "after"; I don't see why it has to mean that.

Well then what does it mean? I am interested in hearing your argument; upon reading it, maybe I will reconsider.
1.17.2006 11:52pm
Defending the Indefensible:
Prof. Kerr,

Why not just anticipate his argument and reconsider your position. Then upon receiving it, you can just deliver your prepared reply.
1.18.2006 12:01am
Master Shake:

Well then what does it mean? I am interested in hearing your argument; upon reading it, maybe I will reconsider.
That's awesome.
1.18.2006 2:00am
minnie:
Just a guess:

Scalia, Thomas, Roberts, Ginsberg and Souter against anticipatory warrants, if that issue becomes the deciding factor.

Alito, Breyer, for.

Kennedy, Stevens ???
1.18.2006 2:42am
randal (mail):
It would be different if judges were in the habit of testing the evidence for probable cause. But they don't; they take the police's word that the facts presented in the affidavit are true, and their only role is to assess whether those facts, if true, constitute probable cause for the search. They can do that just as well with facts that haven't happened yet.

I think you've rubbed the nub, but rubbed it the wrong way. The question isn't whether alleged facts are true or not; there's ways to deal with false affidavits. A judge isn't able to assess facts that haven't happened yet. Instead, the officer must assess whether the facts that occur satisfy the trigger or not. Law enforcement shouldn't be in the position of making that assessment.

In this case, the warrant's triggering 'facts' were Grubbs's accepting the package and bringing it into his house. What if his wife accepted it and brought it in? What if the delivery person shoved it through a mailslot into the house? What if he accepted it and drove away with it? What if he accepted it and brought it into his shed or guesthouse? I think it's dangerous for judges to assume that they can 'anticipate' future facts with enough fidelity to prevent law enforcement from having to make discretionary calls about when and whether probable cause obtains.
1.18.2006 5:10am
Challenge:
Interesting.

Is an anticipatory warrant that is never executed (because x event never occurs) really a warrant?

I would argue that it's not a warrant within the meaning of the Fourth Amendment until it's been triggered by x event. However, the question still remains whether probable cause can be properly evaluated in this manner. To me, that's where the argument rests, which is more of an original intent argument than a pure textualist approach of the kind Orin had in mind.

Just my two cents.
1.18.2006 5:14am
Adrian (mail):
"Upon" could mean contingent on, as in "based upon".

I agree with Randal, though: the real problem is that an anticip warrant allows the final determination of probable cause to be made by the executive branch. Separation of powers, after all, is the point of requiring a warrant, as opposed to just having a rule that police not search without probable cause.
1.18.2006 5:44am
Henry Bowman:
The issue of anticipatory warrants reminds me of the movie "Minority Report", in which people are arrested for crimes that the government has determined that they will do some day. The text of the 4th Amendment seems quite clear; such warrants should not be permitted.
1.18.2006 7:53am
AppSocRes (mail):
My understanding is that the US standard for warrants and searches was traditionally much stronger than the British. The Bill of Rights's insistence on warrants arises in part from colonial experiences with arbitrary searches of ships that Crown customs officers suspected (with a great deal of justification) were involved in smuggling. Perhaps a review of the history behind the Fourth Amendment might shed some light on original intention and the intended meaning of "upon".
1.18.2006 8:21am
Beerslurpy (mail) (www):

The issue of anticipatory warrants reminds me of the movie "Minority Report", in which people are arrested for crimes that the government has determined that they will do some day. The text of the 4th Amendment seems quite clear; such warrants should not be permitted.

Dangerously like common sense!

Also, arent these anticipatory warrants really warrants that issue themselves when triggered by the action of the subject to be searched? Doesnt that mean that actual search has no judicial oversight when it takes place?
1.18.2006 8:53am
Professor Frink:
In terms of the question presented to the Supreme Court, the facts of this case are not very clean. The warrant in question did not itself contain triggering language. It was only the affidavit in support of the search warrant application that stated the warrant would only be executed upon the defendant's receipt of the parcel. A reviewing court could easily side-step the anticipatory warrant issue by holding that the defendant's recent ordering of the contraband gave rise to probable cause that the defendant was now in possession of said package, independent of any showing by the affiant that the package had already been delivered.
1.18.2006 9:20am
Justin (mail):
Scalia, Thomas, Stevens, Roberts, O'Conner, and Breyer will almost certainly approve. Ginsberg and Souter will probably disapprove. Kennedy could go either way.
1.18.2006 10:21am
Bushrod, J. (mail):
Scalia, Thomas, Kennedy, and Rehnquist -- in Groh v. Ramirez, 540 US 551 (2004) -- all dissented on good-faith grounds from the suppression of an insufficiently particularized warrant because the agent's affidavit sufficiently identified the items to be seized, even though the affidavit was not incorporated into the warrant (based on the various incorporation tests in the circuits). The warrant's defect -- failing to identify any items to be seized, instead repeating the address of the search location in the items-to-be-seize section of the preprinted warrant -- was dismissed by the dissenters as a technical mistake excused by the affidavit's contents.

So, assuming the warrant was illegal, if the agents in Grubbs executed the warrant in accord with the preconditions listed in the affidavit, why does the warrant's illegality matter? Isn't that the essence of Leon's good-faith exception?

Under this scenario, the lack of probable cause at the time of the warrant's issuance, assuming that is so, wouldn't matter.
1.18.2006 1:35pm
Matthew Williams:
I beleive Leon's "good faith exception" does not apply to search warrants that are unconstitutional.

Just out of curiosity, when do you think the Justice's will rule on Grubbs? I am nervous waiting for their decision. I was arrested due to importing sassafras oil from France in June of last year. They served a anticipatory search warrant and now it's all just a waiting game.
1.18.2006 3:06pm
von (mail) (www):
IMHO, the most natural reading of the Fourth Amendment is Prof. Kerr's reading, but I agree with Adrian that Prof. Kerr's reading is not the exclusive reading. "Upon" could easily be construed to mean "contingent upon." By defintion, an anticipatory warrant is a warrant that is contingent upon the existence of probable cause.
1.18.2006 3:17pm
Challenge:
"By defintion, an anticipatory warrant is a warrant that is contingent upon the existence of probable cause."

Exactly. And I'm not sure a warrant that has zero force until it's triggered is really a warrant within the meaning of the Fourt Amendment anyway; that is, a warrant would not be technically "issued" until the warrant became enforceable.

I think the better argument rests with whether or not probable cause can be evaluated well enough in the hypothetical case. What if an event is wrongly believed to have occurred? Can we trust authorities, once an anticipatory warrant has been issued, to faithfully ensure that the requirements setforth are met? Isn't that a judge's job? It's true that a judge could review the case after the fact, but then there is additional pressure--if evidence is found--to find the warrant to be valid.
1.18.2006 3:40pm
David M. Nieporent (www):
"Upon" could easily be construed to mean "contingent upon." By defintion, an anticipatory warrant is a warrant that is contingent upon the existence of probable cause.
Except that the fourth amendment says that no warrant shall issue except upon probable cause.

There is no "existence of probable cause" when this warrant is issued.
1.18.2006 3:49pm
von (mail) (www):
Except that the fourth amendment says that no warrant shall issue except upon probable cause.

Not to get too out there, but doesn't that beg the question of when the warrant "issues"? I.e., is it upon signing or when it executes?
1.18.2006 4:11pm
von (mail) (www):
Using the phrase "beg the question" in its modern, rather than its correct, usage.
1.18.2006 4:12pm
Defending the Indefensible:
Matthew,

You were just going to make rootbeer anyhow, right?
1.18.2006 5:17pm
Thief (mail) (www):

the real problem is that an anticip warrant allows the final determination of probable cause to be made by the executive branch.


The executive would not be making the final determination; it is actually pre-committing itself to following a specific, defined criteria. (Basically, an "If A, then B," an "If X occurs, then Y will occur" statement.) Otherwise the warrant will not be signed. I have a hard time believing that triggering events will have to be anything other than an observable, concrete and objective event (e.g. conditioning the warrant "upon delivery of a package to a subject's residence, we will search the residence" or "upon the entrance of a subject into a building, we will search the building.")

I'm also amazed that no one here has considered how such warrants will operate given the existence of the exclusionary rule. I think it's fairly obvious that the consequence of police playing fast and loose with definitions of probable cause in anticipatory warrant cases will mean that any evidence seized as a result of those warrants will be suppressed at trial. Isn't that a sufficient deterrent against abuse?
1.18.2006 5:49pm
Adrian (mail):
Thief: hopefully the conditions will be self-executing with no need for interpretation in light of the eventual facts, but language is imprecise and the universe hates us, so my bet would be that the facts will sometimes find a way not to fit neatly into the boxes. (What, for example, if the drugs don't arrive but coincidentally he has a Harrods delivery?)

On your other point: the exclusionary rule isn't a substitute for warrants generally, and I don't see why it should be here.
1.18.2006 6:19pm
Adrian (mail):
Sorry, I meant "substitute for judicial determination of probable cause".
1.18.2006 6:23pm
Tom Dunson (mail) (www):
"Thief: hopefully the conditions will be self-executing with no need for interpretation in light of the eventual facts, but language is imprecise and the universe hates us, so my bet would be that the facts will sometimes find a way not to fit neatly into the boxes. (What, for example, if the drugs don't arrive but coincidentally he has a Harrods delivery?)"

This is actually a pretty good illustration of why anticipatory warrants don't cause a problem. Let's take your hypo, and assume that the drugs don't arrive, but that something else does. Well, whatever facts led the police to believe that the drugs arrived could, in a non-anticipatory situation, be put in the affidavit in support of the warrant.

Let's say the cops were wrong, and what they thought was the drugs being delivered was actually from Harrod's. Would that affect the validity of the warrant? Would it have prevented the warrant from being issued in the first place? The answer to both questions is clearly "No."

Anticipatory warrants really don't give the police any greater discretion than regular warrants do.
1.18.2006 7:37pm
Matthew Williams:
Defending. I ended up pleading guilty to possesion of sassafras oil and attempting to manufacture. I was actually going to resell the OIL in the US at a higher price. Like 5x markup.
1.18.2006 8:05pm
Bushrod, J. (mail):
Matthew Williams offered that the Leon "good faith" exception does *not* apply to illegal warrants.

This from the 11th Circuit:

"The good faith exception requires the court to consider whether a reasonably well-trained officer would know that the warrant was illegal despite the magistrate's authorization." United States v. Martin, 297 F.3d 1308, 1318 (11th Cir. 2002) (citing United States v. Leon, 468 U.S. 897, 922 n. 23 (1984)).

SCOTUS constructed Leon to address precisely the situation where the warrant fails under the 4th Amendment and thus is illegal.

Leon, IMO, gutted the 4th Amendment on a theory that rejected the SCt's rationale in Weeks v. United States, 232 US 383 (1914), that 4th Amendment errors committed by either the Executive branch *or* the judicial branch require suppression. Why? Because both branches *are* the government and, thus, covered by the 4th Amendment.

Weeks, 233 US at 391-92 says:

"The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law."

Leon is built on the premise that the executive branch's execution of a lawless order, that is, a warrant that violates the 4th Amendment, should be excused because another branch of government made the mistake of issuing the warrant in the first instance. Leon completely disregards Weeks' central and unremarkable premise that the *government* means either the executive or the judicial branch — not just the executive branch.

In other words, Leon treats the judiciary not as a co-equal branch but a branch presumptively with superior ability to make constitutional decisions. Only with that view does the case hold together.

In this respect, Leon is entirely consistent with the line of 10th Amendment and Commerce Clause cases from the Rehnquist Court rejecting Congress's exercise of its law-making power for failing to make sufficient findings of legal facts — a pet peeve of Arlin Specter who hit on this issue in both the Roberts and Alito hearings.

In any event, it seems — and maybe Orin will disagree — that on reviewing the government's brief in Grubbs, no "good faith" argument was offered.

I'd be interested to hear why the SG didn't argue Leon. (It may be that the argument wasn't raised below.)
1.18.2006 8:24pm
randal (mail):
Well, whatever facts led the police to believe that the drugs arrived could, in a non-anticipatory situation, be put in the affidavit in support of the warrant.

That's exactly the reason anticipatory warrants are unconstitutional. The judge reads the affidavit and makes the decision. If the post-facts affidavit says, a box arrived from Harrod's and we think it's drugs for some reason, the judge could deny the warrant. The point is it's up to the judge. If the pre-facts affidavit says, we expect a drug shipment to arrive, and the judge issues an anticipatory warrant triggered on the arrival of the drugs, then it's up to the officer to decide whether the box from Harrod's is the drugs vs. a pair of loafers.
1.18.2006 9:41pm
Defending the Indefensible:
Matthew,

I've actually made genuine rootbeer before, it's quite tasty. You can get bags of rootbark, just boil some up in a bunch of water and add lots of sugar along with other spices to taste, mix in some yeast and bottle in the fridge for a few days.
1.18.2006 10:11pm
Matthew Williams:
Defending, I have actually had genuine rootbeer aswell. It is some really good stuff. I think it tastes quite diffrent from the rootbeer Coke and Pepsi make.
1.18.2006 11:07pm
Neal Lang (mail):
The 4th Amendment, as originally proposed by James Madison:
The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

However, Madison proposed that this amendment be placed in Article I, Section 9 - along with the other "limitations on Congressional Authority, and not a limit on Executive Authority in Article II.

A clue as to the meaning of of the 4th Amendment may be taken from George Mason's "Virginia Declaration of Rights", to wit:
X That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted. From: Virginia Declaration of Rights - Adopted unanimously June 12, 1776 Virginia Convention of Delegates drafted by Mr. George Mason

Madison assisted Mason in drafting the Virginia Declaration of Rights and this influenced his draft of the Bill of Rights.

In his speech to Congress proposing the Bill of Rights, Madison made this comment about "general warrants":
I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.

It would seem that Madison saw a nexus between Congressional "tax collection" powers and "general warrants".

"General Warrants" were "arrest warrants" and not "search warrants":
General warrant (Law), a warrant, now illegal, to apprehend suspected persons, without naming individuals.


As the 4th Amendment as formulated, the "warrants" required could be either "arrest warrants" or "search warrants".
Article the sixth [Amendment IV]

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.


"Search warrants" stipulate the location of the search as well as the articles being sought:
Search warrant (Law), a warrant legally issued, authorizing an examination or search of a house, or other place, for goods stolen, secreted, or concealed. [1913 Webster]

In the case of stolen goods, the "search warrant" the "seizure" of the "stolen goods" would also be authorized. Other "evidence" of a crime may also need to be seized. In the case of a "person to be seized", the warrant would be an "arrest warrant".
Arrest Warrants (State of California):

Suspicion of Criminal Activity

1. Investigation by law enforcement produces reasonable suspicion that criminal activity has occurred. This may include sworn statement by:

* District Attorney (DA)
* Police officer
* Alleged victim

2. Police obtain a formal document signed by a judge requesting the arrest of a person.

3. Accused may not be aware that arrest warrant exists until police arrive and announce warrant for arrest.

4. Law enforcement officers may arrive at home or workplace to make the arrest.

5. More than one person can be arrested at one time.

6. Those arrested are brought to jail and then to court before the judge.

Is "reasonable suspicion" the same as "probable cause"? It seems as though that the warrants specified in the 4th Amendment might be either "search warrants" (place to be searched, crime alleged, and the evidence being sought) or "arrest warrants" (person to arrest and the crime alleged).
DEFINITIONS

The precise meaning of "probable cause" is somewhat uncertain. Most academic debates over the years have centered around the differences between "more probable than not" and "substantial possibility". The former involves the elements of certainty and technical knowledge. The latter involves the elements of fairness and common sense. There's more adherents of the latter approach, but how do you define common sense. Supreme Court case law has indicated that rumor, mere suspicion, and even "strong reason to suspect" are not equivalent to probable cause. Over the years, at least three definitions have emerged as the best statements:

* Probable cause is where known facts and circumstances, of a reasonably trustworthy nature, are sufficient to justify a man of reasonable caution or prudence in the belief that a crime has been or is being committed. (reasonable man definition; common textbook definition; comes from Draper v. U.S. 1959)

* Probable cause is what would lead a person of reasonable caution to believe that something connected with a crime is on the premises of a person or on persons themselves. (sometimes called the nexus definition; nexus is the connection between PC, the person's participation, and elements of criminal activity; determining nexus is the job of a judicial official, and it's almost always required in cases of search warrants, not arrest warrants)

* Probable cause is the sum total of layers of information and synthesis of what police have heard, know, or observe as trained officers. (comes from Smith v. U.S. 1949 establishing the experienced police officer standard)

# Gates test (1983) -- This replaces both Aguilar-Spinelli tests with a totality of circumstances test, requiring the police to think both like an offender as well as a reasonable man (subjective and objective test). The totality of circumstances test is discussed under the Stop &Frisk lecture, so it's a much looser standard associated more with reasonable suspicion than probable cause. From: PROBABLE CAUSE

"Probable Cause" is greater than "reasonable suspension":
Frequently, the police will observe somebody who needs to be checked out. That is the purpose of a stop and frisk, which has many different names: a field interview, a field inquiry, a threshold inquiry, or just routine questioning. Terry v. Ohio (1968), an 8-1 decision with only Justice Douglas dissenting, gave police the right to temporarily detain somebody if there are specific articulable facts leading a reasonable police officer to believe a crime might be occurring. This standard is known as "reasonable suspicion," although some people call it articulable suspicion or more than mere suspicion. It is not necessary for the officer to articulate or identify a specific crime they think is being committed, only that a set of factual circumstances exist that would lead a reasonable officer to believe that criminal activity is occurring. Note that arrest, search, and seizure require probable cause, or what a "reasonable person" would believe. Stop and frisk, by contrast, requires what a "reasonable officer" would believe. Reasonable suspicion is one step below probable cause and one step above a hunch. From: STOP AND FRISK LAW: A GUIDE TO DOCTRINES, TESTS, AND SPECIAL CIRCUMSTANCES

Obviously, the "reasonable suspicion" standard used for California's "Arrest Warrants" is obviously less than the requirements of the 4th Amendment.
1.18.2006 11:12pm
Defending the Indefensible:
Matthew,

Real rootbeer is almost totally unlike the carbonated softdrink they call rootbeer today.
1.19.2006 12:11am
ScottB:
Something no one has considered is what the result would be if anticipatory warrants were ruled to be improper. The typical police procedure upon the sort of "triggering event" common in anticipatory warrant cases would be to enter the house without a warrant based on exigent circumstances, freeze the house, and then seek a warrant afterward. This would clearly result in less judicial oversight. The practice of exigent entries followed by obtaining a warrant has been explicitely approved by the Supreme Court for some circumstances, but can anyone tell me how this situation is better than the one we have with anticipatory warrants? Instead of "Police, search warrant, open the door!" we would have, "Police, open the door, and then we'll get a warrant!"
1.19.2006 2:15am
Adrian (mail):
Randal: what you said.

I'm not sure where the apostrophe in "Harrods" is coming from, though.
1.19.2006 4:23am
minnie:
randal writes: That's exactly the reason anticipatory warrants are unconstitutional.

I agree completely with randal. They are, imo, blatently unconstitutional. I am shocked more people don't see it that way.

Although not a lawyer, and new to thinking about constitutional law, I think the Fourth Amendment is pretty clear. I also think it's the most important amendment. If the government keeps its paws off a person and his property unless a magistrate, and only a magistrate, thinks there is very good reason to intrude upon the person or his property, there isn't too much damage (prior to Kelo) the government can do to an innocent person, except taxes, of course :)
1.22.2006 4:59am