The Required Particularity of Anticipatory Search Warrants

United States v. Grubbs

Grubs bought a video tape online, which he knew contained child pornography. The Postal Inspection Service applied for an “anticipatory search warrant.” Because the probable cause to believe that the video tape would be in Grubs’ house, which the warrant was based on, was necessarily conditioned upon a “controlled delivery” of the tape, this circumstance was listed as a “triggering condition.” About 30 min into the search Grubs was presented with the warrant, though what Grubs received did not include the affidavit explaining when the warrant would be executed (and therefore without the description of the triggering condition. This case addresses Grubs’ motion to suppress because the warrant did not specify the triggering condition and the constitutionality of anticipatory search warrants in general.

As to the constitutionality of anticipatory search warrants in general, the Court observes that the “probable-cause requirement looks to whether evidence will be found when the search is conducted.” Therefore, all search warrants are, in a sense, “anticipatory.” The only difference with anticipatory search warrants is that the probable-cause requirement is fulfilled conditionally. At the same time, the probable cause requirement of the Fourth Amendment also requires that the judge have probable cause to believe that the triggering condition will occur (or else a similar warrant could be issued with the proper triggering condition for every house in the country).

The Ninth Circuit held that the Fourth Amendment’s particularity requirement required that the search warrant specify the triggering condition. The Court, however, argues that the Fourth Amendment requires particularity only as to “the place to be searched” and “the persons or things to be seized.” The Court holds that the missing requirement as to particularity regarding the manner in which the things will be seized is decisive here. The Court also rejects the policy arguments that Grubs puts forth, and observes that “the Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the ‘deliberate, impartial judgment of a judicial officer.’” The Court therefore decides that the warrant presented to the person whose property is searched and seized need not particularize the manner in which the search will be conducted or the justification of the search itself (so long as the judicial decision addressed the matter).

The concurrence clarifies that a warrant authorizes a limited action, and in cases such as this, conditions upon which the police may act. The police are then entitled to do so. In this case, despite the fact that the warrant they held was incomplete the police adhered to the limitations set forth. If the police had not, regardless of what the warrant in their hands said, the search would have been illegal. The concurrence also points out that “the right of an owner to demand to see a copy of the warrant before making way for the police … remains undetermined today.