21 March 2006

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The federal supreme court has now interpreted this to mean you only need probable cause to believe you will have probable cause at some future time.


Butch Howard said...

Is that really what the court said?

I am not a lawyer; I only have a hobbyist's interest in this stuff. I have read the decision, but do not see the problem.

To me it seems that there was probable cause that a crime had been commited (the video was ordered from an undercover operation) and evidence as to who committed the act (he was identified by the way it was paid for, I assume). The only thing 'anticipatory' in the case was when the evidence would be present at a place and time to definitely connect him to it.

The decision also does not give a blanket approval of these types of warrants, but says only that they are not automatically unconstitional and that in this case this one was definitely not.

So, why is this case a problem and why in general are anticipatory warrants as defined in the decision a problem?

Anonymous said...


The problem as I see it is that the Constitution reads "no warrants shall issue ..." not "no warrants shall be executed" without probable cause.

So, the first issue is that it seems to fly in the face of the Constitution's plain meaning.

As to what is problematic about an anticipatory warrant: it takes a great deal of oversight out of the hands of the judiciary (where it belongs) and puts it into the hands of law enforcement.

Here is the scenario as it was: a police officer goes to a judge with an affidavit that attests to certain facts and requests a search warrant. The judge reviews the affidavit and, upon finding probable cause to believe a crime was committed, issues a search warrant that is specific to place and items to be searched for. If there are errors in the search warrant, or factual misrepresentations or omissions, the search warrant may be invalidated and the evidence may be suppressed. This prevents fishing expeditions, because the warrants must be specific.

Here is the new scenario: a police officer goes to a judge with an affidavit of what he believes will happen in the future. The judge reviews what would happen if the affidavit would become true and issues a warrant specifying what conditions will make it executable.

The problem is this: because these things are in the future, they are not certain and some latitude will be afforded the police in the determination of whether or not the "trigger event" has occurred. More often than not, the courts will not suppress evidence when it appears the officers acted without "bad faith."

What this means in a practical sense is that the police will have a lower standard of proving probable cause and the citizen will have a greater hurdle to overcome to prove the warrant was improperly issued.

It leaves much of the decision making process up to the police, who are not exactly a disinterested third party in the event.

TWM said...

Color me confused. I can't wait to see how our search and seizure policy is going to change based on this case.

As if being a cop wasn't difficult enough now.

Tom McKenna said...

The decision is not all that unusual, actually, which accounts for it being a unanimous opinion, including Breyer, Stevens, and Ginsburg. Now even these three far leftists understand that it is not a violation of the constitution for the magistrate to determine that p.c. exists to believe that evidence will be found where and when the police allege it will. The neutral, detached magistrate still makes the call on whether the conditional, triggering event is likely to happen or not before issuing the warrant. In this case, for example, the child porn was intercepted and the police asked for permission to search "if and only if" the package was received at the location to which it was addressed.

So Ken is not accurate when he tries to spin this as "p.c. that p.c. will exist in the future." In fact, it was a decision that p.c. existed NOW that the package would be delivered and accepted in the time frame indicated in the affidavit. As Scalia notes, we do this all the time, as in wiretap affidavits, which search for information not yet actually in existence.

As I said, all 8 justices (Alito sat this one out) had no issue with this, nor did any of the federal circuits. The only suspenseful issue was whether the SCOTUS would by the 9th Circuit's argument that the warrant must specifically mention the conditional triggering event in order to notify the property owner so he could "police" the execution of the warrant. Not surprisingly, the Supremes (all of them) slapped down the 9th, even while the three liberals did feel the need to warn that warrants should include such information.

Butch Howard said...

Orin Kerr covers the problems as he sees them.

Ken Lammers said...

Tom -

In Scalia's own words:

"[F]or a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. [1] It must be true not only that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place, but also [2] that there is probable cause to believe the triggering condition will occur."

That's probable cause to believe probable cause will exist.

Anonymous said...

I think Mr. Mckenna is probably right about this one. I don't think this little phrase from his comment is very credible though: "The neutral, detached magistrate still makes the call on whether the conditional, triggering event is likely to happen or not before issuing the warrant."
To anyone who believes that magistrates are neutral and detached when they issue warrants: please email me your credit card information so I can negotiate a profitable transaction on your behalf with the Royal Bank of Lagos, Nigeria....

TWM said...

Lot's of hands-on experience in dealing with magistrates I take it? So many stereotypes, so little time.

Anonymous said...

I do know that magistrates are neither required nor likely to have any formal legal training. I also know that in South Carolina there was a scandal about 10 years ago where several magistrates were found to be barely literate. They were forced to pass the GED to keep their positions and a state Senator conspired with one of them to have another person take the test.

I've also seen a number of Affidavits from Virginia that contained so little specific information that I am certain that the particular magistrate who approved warrants based on them was an agent of the police and not a neutral. The affidavits were exactly the same, except with addresses changed. The Magistrate issued warrants based on them one after another on the same day. I'm no lawyer, but it seems to me that he did not have adequate time or information to determine probable cause within the four corners of the affidavit. I wish I could provide more detailed information such as the county in question, but I do not want to further jeapordize my anonymity.