On Wednesday the Supreme Court will hear argument in United States of America v. Grubbs, No. 04-1414. The question presented in Grubbs is whether the Fourth Amendment requires the triggering condition for a search under an anticipatory warrant, which permits law enforcement officials to execute a search when some specified future condition is established, to be either specified in the warrant itself or in an affidavit incorporated into the warrant and shown to the person whose property is being searched.

The case arises out of a search conducted at the home of Mr. Grubbs, who had placed an order from a website operated by an undercover United States Postal Inspector for a videotape said to depict minors engaged in sex acts. Subsequently, postal inspectors obtained an anticipatory warrant to search the address provided by Mr. Grubbs in his order. The affidavit accompanying the application for the warrant stated that the warrant would not be executed until the parcel containing the videotape had been received by a person at the address and physically taken into the residence. The warrant issued, however, did not state this condition. The parcel was then delivered and the search warrant executed. During the resulting search, Mr. Grubbs admitted that he had ordered the videotape and that he possessed other child pornography.

Mr. Grubbs entered a conditional guilty plea to one count of receipt of child pornography following the district court's rejection of a motion to suppress his statement and the physical evidence seized from his house. The U.S. Court of Appeals for the Ninth Circuit, in an opinion written by Judge Reinhardt, reversed the denial of Mr. Grubbs's motion to suppress, and remanded the case to the district court to give Mr. Grubbs an opportunity to withdraw his plea.

The Ninth Circuit, relying on circuit precedent, held that the Fourth Amendment requires that the triggering conditions which must exist before an anticipatory warrant can be executed must be stated in the warrant. While a defective warrant could be cured by stating the triggering conditions in an accompanying affidavit, the court held that such an affidavit could only be said to “accompany” the warrant if it was shown to the person being subjected to the search. The court of appeals, drawing on the Supreme Court's reasoning in Groh v. Ramirez (2004), emphasized the importance of ensuring that persons subject to searches are informed of the limits of the search approved by the magistrate. Absent such information, individuals could not police the officer's conduct. Given the failure of the postal inspectors to present Mr. Grubbs with the supporting affidavit, the search violated the Fourth Amendment.

In so holding, the Ninth Circuit departed from the position taken in the five other circuits to have considered the question, all of which have held that the Fourth Amendment's “particularity requirement” is limited to specifying the place to be searched and the person or things to be seized. The United States petitioned for certiorari, which the Supreme Court granted on September 27, 2005.

The United States argues that the Ninth Circuit's approach is inconsistent with the plain text of the Fourth Amendment, and that the policy arguments relied on by the Ninth Circuit cannot justify its departure from the text. The United States argues that the Fourth Amendment indicates with precision that only two things must be “particularly describe[ed]”: the place to be searched and the person or things to be seized. The triggering condition fits into neither category, but rather is one aspect of the government's showing of probable cause for a search. Accordingly, the absence of a statement of the triggering condition in the warrant is not a defect that needs to be “cured” by an accompanying affidavit.

The United States further argues that the Ninth Circuit erred in its description of the purposes of the Fourth Amendment. The historical purpose of the Amendment was to protect against general warrants — warrants that lacked specificity concerning the place to be searched or person arrested and often lacked an adequate showing of cause. There is no reason to believe that that the Framers intended the Fourth Amendment to address other matters. Nor is the specification of the triggering condition in the warrant the only effective way to safeguard against unreasonable and unbounded searches. The appropriate way to dispute probable cause is through an ex post motion to suppress the evidence obtained by the search, or a civil claim for damages, not by “challenging” agents prior to the search. The United States also disputes that anticipatory warrants pose a greater risk of abuse than traditional warrants: the potential for abuse can be controlled by defining the triggering conditions precisely. The United States notes that the likely alternative to anticipatory warrants is potentially more problematic: warrentless searches justified by “exigent conditions.”

In response, Mr. Grubbs seeks not only to refute the government's arguments, but also to challenge the constitutionality of anticipatory warrants generally. He relies on the text of the Fourth Amendment, which requires that “no Warrants shall issue, but upon probable cause.” This language, Mr. Grubbs contends, means that the probable cause must exist at the time of issuance; under an anticipatory warrant, there is only probable cause once the future contingency is satisfied. Further, the conferral of discretion on executive officers to determine when probable cause exists at a future time is inconsistent with the constraining purpose of the Fourth Amendment. Mr. Grubbs denies that there is any compelling law enforcement need for anticipatory warrants given the other options available to police to seek warrants quickly.

Mr. Grubbs argues in the alternative that the warrant must particularly state the triggering condition on its face. Mr. Grubbs argues that the question cannot be resolved, as the United States argues, by the text of the Fourth Amendment, because anticipatory warrants are not contemplated by the text; the Government is not entitled to have its cake and eat it too. Given this, Mr. Grubbs proposes that the question be resolved by looking to the purposes that animated the framing and ratification of the Amendment, namely to remove discretion from the executing officer and vest it in the magistrate, and to assure the individual whose property is searched of, among other things, the need to search. Mr. Grubbs argues that both policies point in favor of specification of the triggering condition. Mr. Grubb suggests that the requirement that a precondition to a warrant's validity be made manifest in the warrant itself is a limited rule, which poses no undue burden to law enforcement.

The National Association of Criminal Defense Lawyers and Professor George C. Thomas III, of Rutgers University School of Law, have filed a joint amicus brief in support of the proposition that anticipatory warrants are unconstitutional. The amicus brief canvases the historical background to the Fourth Amendment in some detail and argues that the original understanding of the Amendment lies in sharp conflict with anticipatory warrants.

Michael R. Dreeben, Deputy Solicitor General, will argue on behalf of the United States. Mark J. Reichel, Assistant Federal Defender for the Eastern District of California, will argue on behalf of Mr. Grubbs. Both the petitioner and respondent's briefs can be found here. The amicus brief is available here.

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