SMI[

Search and Seizure (General)    SEA; 335(65[a] [p])(Search Warrants [Affidavits, Sufficiency of] [Suppression])  

Title[United States v Grubbs]

Cite[546 US __, 126 SCt 1494, 164 LEd2d 195 (2006)]

The respondent was arrested for possession of child pornography. A video ordered from an undercover government website was found in his home after the postal service delivered it. The government used an anticipatory search warrant not to be executed until the package had been delivered. The triggering event was detailed in the affidavit attached to the warrant, but was not included with the copy given to the respondent. Denial of the respondent's motion to suppress was reversed on appeal for failure of the warrant to meet the 4th Amendment particularity requirement.

Holding: The triggering condition for an anticipatory search warrant need not be stated in the warrant. See Dalia v US, 441 US 238, 255 (1979). Anticipatory warrants are not categorically unconstitutional. All search warrants must be based on probable cause that evidence of a crime will be found when the search is conducted. See Katz v US, 389 US 347 (1967). An anticipatory search warrant is valid provided there is probable cause to believe that evidence or contraband will be found when the search occurs. US v Garcia, 882 F2d 699, 702 (2nd Cir, 1969). Conversely, probable cause may expire if law enforcement knows that the evidence is no longer at the specified location, or the information can become stale over time. See eg US v Bowling, 900 F2d 926, 932 (6th Cir 1990). The validity of an anticipatory warrant depends on the certainty of the triggering condition and the particularity of the search location. Judgment reversed.

Concurring: [Souter, J] An anticipatory warrant based on unstated triggering conditions would not provide any guidance to law enforcement, giving them the added responsibility to determine the underlying conditions before conducting the search. An incomplete warrant puts the property owner at a disadvantage, removing the  ability to learn the limits of the search or whether the  triggering event had occurred.

5/06

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