The Grubbs decision was handed down on March 21, and resulted in a win for the government. The opinion, written by Justice Scalia, is available here.

I had signed off by the time Orin Kerr responded to my suggestion that anticipatory warrants do not violate the probable cause requirement in the fourth amendment, so I will add one more post. Professor Kerr states that such warrants are based only on the “possibility of probable cause.” I disagree, at least in controlled delivery situations. In those situations, anticipatory warrants are based on the probability that a controlled delivery will take place and the near certainty that if that delivery occurs evidence of crime will be on the indicated premises. Just as there can be probable cause regarding past and present events and conditions, there can be probable cause about future events and conditions. Professor Kerr also expresses worry about the fact that under an anticipatory warrant the police are given discretion to determine when the triggering event (the controlled delivery) takes place. I agree that police are given this discretion, but only within the limits imposed by the warrant’s or affidavit’s description of the triggering condition, which is no different than giving police who are executing a regular warrant discretion to decide which items are described in a warrant or may be seized under the plain view doctrine. More important, the determination of whether police reasonably find the triggering condition has occurred is an execution issue, governed by Garrison; it has nothing to do with whether probable cause existed at the time the warrant was issued.

Well, it’s getting pretty late at night, so I guess it’s time to put this event in the books. Thanks so much to all of our panelists for their participation. These events are always a pleasure to read and to host, and this was no exception.

Panelists can still send in their closing thoughts over the next two weeks, and they will appear here as I receive them.

Have a great weekend, everybody.

I have a hard time imagining that the Court would find anticipatory warrants unconstitutional across the board, notwithstanding Orin’s interesting “probability of probable cause” argument — they just don’t seem to like to establish categorical rules of prohibition in this area. But, I’ll go out on a limb and say that I would be surprised — not stunned, but surprised — if the Court permits warrants based on a judicial assessment of probable cause subject to an unrealized future contingency without placing some meaningful check on law enforcement discretion over whether the contingency properly has been realized. Whether this check is achieved by importing the triggering event into the particularity requirement, as Grubbs is arguing and the Ninth Circuit held, by requiring some post-search judicial review of the contingency, or by some combination of these checks, I would expect something. So, I guess option #1.

As a final thought, I wonder about something I don’t think we discussed much today: anticipatory warrants where law enforcement does not control the future contingency, a sharp contrast to the controlled delivery-type case at issue in Grubbs. Analytically, if with an anticipatory warrant a magistrate has probable cause at the time of issuance and not at some future contingent time, I don’t see how this general principle could be limited to exclude circumstances beyond controlled delivery-type cases, so long as law enforcement can demonstrate a probability that the future contingency will occur. Should these circumstances create special concerns? If so, should they inform whether we should permit anticipatory warrants in the first place, or can these circumstances effectively be distinguished from controlled delivery-type cases?

A really interesting discussion today. I am most thankful to Jake Kreutzer, the Journal of Law & Liberty and the other panelists for allowing me to participate.

Chris Slobogin has a very interesting response to my concern that anticipatory warrants are not based on probable cause. He begins:

[T]he judge who issues an anticipatory warrant does have probable cause to believe evidence of crime will be found in a particular location when the warrant is executed. In other words, at the time the warrant is issued, there is a better-than-even chance the police will find evidence of crime in the indicated location when they go to search it.

I think the difficulty with this argument is that it hinges on the assumption that the agents will exercise their discretion properly, and execute the warrant when probable cause finally does exist. In other words, the anticipatory warrant reflects the judge’s best guess that if the agents do their job correctly, probable cause will exist when the warrant is ultimately executed. But that’s not what the Fourth Amendment requires. The Fourth Amendment requires probable cause to exist before the warrant is issued, not the probability that probable cause will exist when agents decide that it is the right time to execute it.

Professor Slobogin continues:

It is true that, at the precise moment of the warrant’s issuance, the indicated premise will not contain the soon-to-be-delivered contraband. But the language of the fourth amendment does not require that the item to be seized be in the place indicated at the time of issuance. If it did, electronic surveillance warrants would be unconstitutional, since the designated conversations are presumably not taking place at the moment of issuance. Arrest warrants, or search warrants for arrestees under Steagald, might not be constitutional either, at least when it is known the suspect is not on the premises at the precise time the warrant is issued.

These are interesting analogies, although I’m not so sure they hold up. In the case of electronic surveillance warrants, the judge must find probable cause to believe that evidence will be collected during the specific set statutory time window in which the warrant is in force. True, the evidence may not be there yet; but the judge has probable cause to believe it will be during the time window. As I see it, anticipatory warrants are different. When a judge signs an anticipatory warrant, she doesn’t have probable cause that the evidence will be located in the place to be searched before the warrant expires. Rather, she has reason to believe that if it so happens that a specific event will occur, then and only then probable cause will exist. That’s not probable cause: it’s the possibility of probable cause. And I don’t think that’s enough.

I too have to sign off. I enjoyed the opportunity to participate in a new venture (for me anyway) and enjoyed the comments and thoughts about anticipatory warrants. Jim Adams

I vote for #2. If the Court addresses the validity question at all (there were signals during oral argument it didn’t want to), I have a hard time seeing how the language itself calls for a prohibition on anticipatory warrants, for reasons I’ve given today, but who knows what Scalia or Stevens might say? On the exact issue before the Court, on the other hand, the language of the fourth amendment seems to favor the government. The particularity clause does not require a statement about when the warrant will be executed, only a statement of the place of the search and the items to be seized. If, on the other hand, the Court decides to the contrary, then Groh would seem to call for a holding in favor of Grubbs. As I noted in my initial post, not only was the triggering condition only mentioned in the affidavit, it apparently was hidden in the middle of the affidavit, and the latter was not attached to the warrant.

I’ve enjoyed this exchange with all of you.. Thanks to Jacob Kreutzer and the Journal for setting it up. I’m signing off now. The first game in my daughter’s basketball tournament starts in less than an hour.

As the day winds down (thanks to you all for helping me think about this issue) I’m wondering if people have a prediction of how the Court will rule in Grubbs. Some possibilities for your consideration:

(1) Grubbs wins. Justices Scalia and Thomas join Breyer, Ginsburg, Souter, and Stevens in ruling that, on the strength of Groh v. Ramirez, the operative documents that are shown to the homeowner (warrant and maybe affidavits) must contain the triggering event.

(2) Grubbs loses. Anticipatory warrants are fine, and as long as the magistrate considered the triggering event and found that, when it occurred, probable cause would exist, that’s all the 4A requires. The particularity requirement doesn’t reach beyond the place and the items, and the rest of the procedural flaws should be corrected by the federal rules, not the constitution.

(3) Grubbs wins big. Anticipatory warrants are per se invalid, and don’t you forget it. Text is text.

(4) Grubbs loses big. The unanimous opinion of the Court reads in full: “On writ of certiorari to the Ninth Circuit. Reversed.”

Professor Adams’ example of police wanting to track a package through several locations to its ultimate destination, which may be unknown at the time the warrant is issued, reminds me of roving phone taps, which are permissible under Title III. In each instance, the police have probable cause that a crime will occur (i.e., possession of contraband, criminal conversation) but don’t know ahead of time where it will occur. In both cases, individuals may be trying to evade detection (by moving the package around, changing phones or computers). Is the particularity requirement met if the warrant allows entry (interception) “anywhere” the package (suspect conversation) is found? If it is the recipients and not an agent of the police transferring the package, and if police are limited to whatever they discover in plain view once they decide to execute the warrant, the situation may be no different than police intercepting every phone call a particular person makes, regardless of its place of origin, and “seizing” whatever is in “plain hear.” However, staleness doctrine probably ought to impose a time limit on how long they can wait to execute the warrant (as suggested by Mr. Searcy in a side comment). As Professor Adams notes, in the package scenario the alternatives to an anticipatory warrant in this situation are (1) a warrantless exigency search, perhaps under authority of Andreas (but is the exigency “created” by the police, given their foreknowledge that the package contains contraband and the ability to get an anticipatory warrant?), or (2) a post-delivery warrant-based search (when obtaining a warrant is feasible). On the latter score, I don’t know about numbers of telephonic warrants, but according to a colleague of mine, in Tampa they are routinely used by federal prosecutors in post-delivery situations and take only about 15 minutes to obtain if the non-continent part of the warrant has been prepared ahead of time. I prefer the latter approach, but I’m not sure the Constitution requires it, given the Court’s reluctance to import least drastic means analysis into fourth amendment jurisprudence.

Many intercepted packages of drugs and child pornography are addressed to a mail box or are scheduled for pick-up at the carrier’s place of business. For both crimes (possession with intent to distribute and knowing receipt of child pornography through the mail) police may want to track the contraband to its final resting place to identify the person who takes ultimate control. Once at that location, police will want to search the location for more than the delivered contraband. How should an anticipatory warrant state with particularity the location to be searched when the delivery is not to a specific location? Should the magistrate assume as with other drug related items that the individual will eventually bring the contraband to a dwelling? Can that assumption be made if police have no other basis to believe defendant’s dwelling is involved in the criminal activity? Can the magistrate leave the location open and permit police to follow the individual and choose the appropriate location when they believe (objectively) that the contraband has alighted in a specific location? See two older state cases for differing results: Commonwealth v. Douglas, 503 N.E.2d 28 (Mass 1987); and State v. Morris, 668 P.2d 857 (Alaska Ct. App. 1983). Assuming police can keep track of the shipment through beepers or other surveillance to a “final” location, what options are available if anticipatory warrants cannot issue because of lack of specificity of location? Police could try a telephone warrant (does anyone have statistics on numbers authorized or how quickly they are normally issued?) or use exigent circumstances as the basis for entry. If telephone warrants are sufficiently timely, they would provide individuals with more protection than an anticipatory warrant. On the other hand, the anticipatory warrant provides more protection than the officer’s determination of exigent circumstances.