UNITED STATES v. GRUBBS
No. 04-1414
United States Supreme Court
Argued January 18, 2006-Decided March 21, 2006
547 U.S. 90
Mark J. Reichel argued the cause for respondent. With him on the brief were Linda C. Harter and Jeffrey T. Green.*
*Daniel L. Kaplan and Jeffrey L. Fisher filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.
Ric Simmons filed a brief for the National Association of Federal Defenders as amicus curiae.
Federal law enforcement officers obtained a search warrant for respondent‘s house on the basis of an affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that location. We address two challenges to the constitutionality of this anticipatory warrant.
I
Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to Grubbs’ residence. A postal inspector submitted a search warrant application to a Magistrate Judge for the Eastern District of California, accompanied by an affidavit describing the proposed operation in detail. The affidavit stated:
“Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence. . . . At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant‘s command.” App. to Pet. for Cert. 72a.
In addition to describing this triggering condition, the affidavit referred to two attachments, which described Grubbs’ residence and the items officers would seize. These attachments, but not the body of the affidavit, were incorporated into the requested warrant. The affidavit concluded:
“Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the items set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs’ residence], which residence is further described at Attachment A.” Ibid.
A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual depiction of a minor engaged in sexually explicit conduct. See
The Court of Appeals for the Ninth Circuit reversed. 377 F. 3d 1072, amended, 389 F. 3d 1306 (2004). Relying on Circuit precedent, it held that “the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant.” 377 F. 3d, at 1077-1078 (citing United States v. Hotal, 143 F. 3d 1223, 1226 (CA9 1998)). An anticipatory warrant defective for that reason may be “cur[ed]” if the conditions precedent are set forth in an affidavit that is incorporated in the warrant and “presented to the person whose property is being searched.” 377 F. 3d, at 1079. Because the postal inspectors “failed to present the affidavit-the only document in which the triggering conditions were listed“-to Grubbs or
II
Before turning to the Ninth Circuit‘s conclusion that the warrant at issue here ran afoul of the Fourth Amendment‘s particularity requirement, we address the antecedent question whether anticipatory search warrants are categorically unconstitutional.1 An anticipatory warrant is “a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” 2 W. LaFave, Search and Seizure § 3.7(c), p. 398 (4th ed. 2004). Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time-a so-called “triggering condition.” The affidavit at issue here, for instance, explained that “[e]xecution of th[e] search warrant will not occur unless and until the parcel [containing child pornography] has been received by a person(s) and has been physically taken into the residence.” App. to Pet. for Cert. 72a. If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued. Grubbs argues that for this reason anticipatory warrants contravene the
We reject this view, as has every Court of Appeals to confront the issue, see, e. g., United States v. Loy, 191 F. 3d 360, 364 (CA3 1999) (collecting cases). Probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U. S. 213, 238 (1983). Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, “anticipatory.” In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate‘s determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. See People v. Glen, 30 N. Y. 2d 252, 258, 282 N. E. 2d 614, 617 (1972) (“[P]resent possession is only probative of the likelihood of future possession“).2 The anticipatory nature of warrants is even clearer in the context of electronic surveillance. See, e. g., Katz v. United States, 389 U. S. 347 (1967). When police request approval to tap a telephone line, they do so based on the probability that, during the course of the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal provision requires a judge authorizing “interception of wire, oral, or electronic communications” to determine that “there is prob-
Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered-though for any single location there is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment‘s requirement of probable cause, two prerequisites of probability must be satisfied. 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,”
In this case, the occurrence of the triggering condition-successful delivery of the videotape to Grubbs’ residence-would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore “had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.” Gates, supra, at 238-239 (quoting Jones v. United States, 362 U. S. 257, 271 (1960)).
III
The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed to specify the triggering condition. The Fourth Amendment‘s particularity requirement, it held, “applies with full force to the conditions precedent to an anticipatory search warrant.” 377 F. 3d, at 1077-1078.
The Fourth Amendment, however, does not set forth some general “particularity requirement.” It specifies only two matters that must be “particularly describ[ed]” in the warrant: “the place to be searched” and “the persons or things to be seized.” We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238 (1979), we considered an order authorizing the interception of oral communications by means of a “bug” installed by the police in the petitioner‘s office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must “explicitly set forth its approval of such entries before the fact.” Id., at 255. This argument fell before the “precise and clear” words of the Fourth
Respondent, drawing upon the Ninth Circuit‘s analysis below, relies primarily on two related policy rationales. First, he argues, setting forth the triggering condition in the warrant itself is necessary “to delineate the limits of the executing officer‘s power.” Brief for Respondent 20. This is an application, respondent asserts, of the following principle: “[I]f there is a precondition to the valid exercise of executive power, that precondition must be particularly identified on the face of the warrant.” Id., at 23. That principle is not to be found in the Constitution. The Fourth Amendment does not require that the warrant set forth the magistrate‘s basis for finding probable cause, even though probable cause is the quintessential “precondition to the valid exercise of executive power.” Much less does it require description of a triggering condition.
Second, respondent argues that listing the triggering condition in the warrant is necessary to “‘assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.‘” Id., at 19 (quoting United States v. Chadwick, 433 U. S. 1, 9 (1977)). The Ninth Circuit went even further, asserting that if the property owner were not informed of the triggering condition, he “would ‘stand [no] real chance of policing the officers’ conduct.‘” 377 F. 3d, at 1079 (quoting Ramirez v. Butte-Silver Bow County, 298 F. 3d 1022, 1027 (CA9 2002)). This argument assumes that the executing officer must present the property owner with
* * *
Because the Fourth Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at issue here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE ALITO took no part in the consideration or decision of this case.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, concurring in part and concurring in the judgment.
I agree with the Court that anticipatory warrants are constitutional for the reasons stated in Part II of the Court‘s
The Court notes that a warrant‘s failure to specify the place to be searched and the objects sought violates an express textual requirement of the Fourth Amendment, whereas the text says nothing about a condition placed by the issuing magistrate on the authorization to search (here, delivery of the package of contraband). That textual difference is, however, no authority for neglecting to specify the point or contingency intended by the magistrate to trigger authorization, and the government should beware of banking on the terms of a warrant without such specification. The notation of a starting date was an established feature even of the objectionable 18th-century writs of assistance, see, e. g., Massachusetts Writs of Assistance Bill, 1762, reprinted in M. Smith, The Writs of Assistance Case 567-568 (1978); Writ of Assistance (English) of George III, 1761, reprinted in id., at 524-527. And it is fair to say that the very word “warrant” in the Fourth Amendment means a statement of authority that sets out the time at which (or, in the case of anticipatory warrants, the condition on which) the authorization begins.*
An issuing magistrate‘s failure to mention that condition can lead to several untoward consequences with constitutional significance. To begin with, a warrant that fails to tell the truth about what a magistrate authorized cannot inform the police officer‘s responsibility to respect the limits of authorization, see Groh v. Ramirez, 540 U. S. 551, 560-563, and n. 4 (2004), a failing assuming real significance when the warrant is not executed by the official who applied for it and happens to know the unstated condition. The peril is that if an officer simply takes such a warrant on its face and makes the ostensibly authorized search before the unstated
Nor does an incomplete anticipatory warrant address an owner‘s interest in an accurate statement of the government‘s authority to search property. To be sure, the extent of that interest is yet to be settled; in Groh v. Ramirez, supra, the Court was careful to note that the right of an owner to demand to see a copy of the warrant before making way for the police had not been determined, id., at 562, n. 5, and it remains undetermined today. But regardless of any right on the owner‘s part, showing an accurate warrant reliably “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” United States v. Chadwick, 433 U. S. 1, 9 (1977), quoted in Groh v. Ramirez, supra, at 561. And if a later case holds that the homeowner has a right to inspect the warrant on request, a statement of the condition of authorization would give the owner a right to correct any misapprehension on the police‘s part that the condition had been met when in fact it had not been. If the police were then to enter any-