Search And Seizure - Anticipatory Warrant

United States v. Grubbs, 547 U.S. 90 (2006)

Reversing the decision of the Ninth Circuit, the Supreme Court holds that an anticipatory search warrant is permissible under the Fourth Amendment. Moreover, the triggering event is not required to be explicitly set forth in the warrant itself, or expressly incorporated by reference to the attached search warrant affidavit. The Ninth Circuit had previously held that under Groh v. Ramirez, the triggering event had to be in the warrant itself, or incorporated by reference to an attached search warrant application.

United States v. Hotal, 143 F.3d 1223 (9th Cir. 1998)

An anticipatory search warrant must either on its face or on the face of the accompanying affidavit clearly, expressly, and narrowly specify the triggering event. In this case, the warrant signed by the magistrate made no reference to the fact that it was an anticipatory warrant and no “triggering” event was described. Even though the search warrant application explained that videotapes would be delivered to the defendant’s house, and thereafter, the warrant would be executed, the affidavit was not incorporated in the warrant.

United States v. Rowland, 145 F.3d 1194 (10th Cir. 1998)

The government obtained an anticipatory warrant that authorized the police to enter the defendant’s home after he received two child pornographic video tapes that he ordered as part of a sting operation. The agents surveilled the defendant as he retrieved the package from a post office box, but he went back to his place of employment, not home, with the package. The agents then determined that an alarm which they placed in the package was activated (indicating that the package was opened at the defendant’s site of employment). They later observed him leave his job with a briefcase, but they did not see the package. The Tenth Circuit held that the anticipatory warrant was invalid because it failed to establish probable cause that the contraband would be located at the defendant’s home after a specified triggering event (i.e., the delivery of the tape to the post office box). There was no evidence in the search warrant application that the agents had any basis to believe that the defendant would pick up the tapes from the post office box and then go home – in fact, he had previously been observed picking up items from the post office box and then going back to work. The court held, however, that the good faith exception to the exclusionary rule applied and the evidence was admissible.