by Matt Barr

Pre-crime warrants

Via Prof. Kerr at Volokh we learn that courts of appeals have been allowing the government to search persons, houses, papers, and effects under the authority of "anticipatory warrants." Left to the imagination, that sounds awful, so here's the narrow circumstance, illustrated by then-Judge Breyer (quoted in link above) in 1994:

There is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that, say, the marijuana will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant's search authority to the future event that brings with it the probable cause (e.g., the time of "delivery of a large brown package addressed to X with return address Y"). In principle, the use of a "triggering event" can help assure that the search takes place only when justified by "probable cause"; and anticipatory warrants may thereby offer greater, not lesser, protection against unreasonable invasion of a citizen's privacy.

He had me till the "this might actually be better" bit. If you're comfortable with warrants under the Fourth Amendment that stipulate that a home may be searched when something in the future happens, how much latitude are you willing to give the executing officers? There's daylight between "delivery of a large brown package addressed to X with return address Y" and "delivery of any suspicious looking parcel," and even "when officers determine probable cause exists."

About the only thing authorizing one and not the other(s) is narrowly construed judicial rules, which rely on sometimes narrow and sometimes very broad ideas on the part of judges. But all warrants rely on the judgment of judges, and so far the earth hasn't spun off its axis! True enough, but warrants aren't supposed to rely on the (independent) judgment of the police, and something like this would, to an extent. Besides, some play in one joint is one thing, a lot of play in two joints and you're all over the place. Or something.

An even more obvious defect of "anticipatory warrants" is this: Let's use Breyer's marijuana example. You're probably searching for more marijuana than is in the package, but you obviously don't have probable cause to believe it's there, or you'd get a... what's the opposite of anticipatory?... warrant. The crime therefore you're searching for evidence of, on the face of the warrant, hasn't been committed yet. This is somehow better than the way the Fourth Amendment has things happening?

In any event, the Supreme Court announced today that it would review U.S. v. Grubbs, in which "authorities had gotten an 'anticipatory warrant' because they expected the delivery of an illegal videotape at the home of" Grubbs.

Prof. Kerr discusses the procedural history of the case a little and does some preliminary head counting:

I think Justices Scalia and Thomas are going to have serious problems with anticipatory warrants. The Fourth Amendment states that "no Warrants shall issue, but upon probable cause." Anticipatory warrants are warrants that issue without probable cause; the probable cause comes after the warrant has been issued.... Scalia and Thomas will probably say that this is a no-no. And when Scalia and Thomas have pro-defendant inclinations in criminal cases, there are usually a few more votes from liberal Justices ready to join them.

I think that's probably right, both the analysis and the anticipation that Messrs. Justice Scalia and Thomas will balk.

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