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Anticipatory Warrants (podcast transcript)

Hi, I’m Tim Miller; I’m here with Keith Hodges.  Mr. Hodges and I are instructors within the Legal Division at the Federal Law Enforcement Training Center at Glynco, GA.  Mr. Hodges is going to discuss a recent Supreme Court case about anticipatory search warrants.  Sir, maybe you can start off by telling me what exactly is an anticipatory search warrant.

Hodges:   I’m happy to.  First of all, the case is U.S. v. Grubbs and it was decided in March 2006.  I think the best way to define an anticipatory search warrant is to use the exact definition that the Supreme Court gave it.  And, let me quote them.  They said, “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 specific place.”  Once the case was over and done, the Supreme Court said they had no problem with law enforcement using anticipatory search warrants.

Miller:  So, how does this anticipatory search warrant differ from an ordinary warrant?

Hodges:  Okay, in the usual warrant, officers requesting the search must establish probable cause that what they want to look for is presently in the place they want to look for it.  So, if the officer wants to search particular a place for, I don’t know, drugs,  they have to show probable cause the drugs are in the house.  They don’t have to be positive drugs are there, of course; but, they have to show probable cause that the drugs are there.  And, probable cause in that context means there is a fair probability the drugs are there.  Now, in contrast, an anticipatory warrant doesn’t claim the evidence is in a particular place at the time the warrant’s requested.  Instead, that kind of a warrant anticipates a certain event will occur and if that event happens, then there is going to be PC; that is, probable cause.  So, in essence the officers are saying, “Judge, if this event happens, there is going to be PC and I want to search.”

Miller:  How about giving me an example as to how an anticipatory search warrant might be used?

Hodges:  I think Tim, that the best example is exactly what happened in Grubbs.  Grubbs ordered a child pornographic video tape from an internet site, and unknown to Grubbs, the site was being operated by the U.S. Postal Service.  Agents intended to make a controlled delivery of the tape that Grubbs had ordered, but that delivery had not yet been made.  Now, the agents wanted to search Grubbs’ house after delivery of the tape to prove that he was in possession of it.  But, they wanted to get the warrant before the delivery so once the delivery was made, the agents could immediately conduct a search for the tape inside the house.  So, what these agents did was, they prepared the usual warrant application, they prepared a warrant for the magistrate to sign,  and they prepared a probable cause affidavit.  In that affidavit they told the magistrate what they knew and they requested to execute a warrant to search for the tape if a triggering event occurred.  And, I want to quote the Supreme Court again on the triggering event language because I think it is really good.  And here’s that language that was in the warrant: “Execution of this search warrant will not occur unless and until the parcel has been received by a person and has been physically taken into the residence.  At that time, and not before, this search warrant will be executed.”  Delivery of the parcel, as we see by that language -- that was the triggering event.

Miller:  Can you tell me a little bit more about triggering events?

Hodges:  Sure.  A triggering event is something other than the mere passage of time -- we’ll talk about that in a minute -- when there is going to be probable cause the evidence is in the house.  Now, the agents knew, they told the magistrate that they knew that the parcel wasn’t there at the time they requested the warrant; but they requested the warrant be issued in anticipation that the parcel would be delivered.  If the parcel was delivered and taken into the house, then the triggering event occurred and the warrant could be executed. 

Miller:  Now, what happens if the triggering event doesn’t occur, that somehow the delivery wasn’t made, like no one was at home?

Hodges:  It’s real easy.  If the trigger isn’t pulled, the warrant can’t be executed.

Miller:  You know, this sounds like the officers get to decide whether they had probable cause.  I thought that was the magistrate’s job.

Hodges:  Tim, it is the magistrate’s job to determine whether there’s probable cause.  When issuing an anticipatory search warrant, the magistrate must decide that based upon the facts the officers present, and if the triggering event occurs, there will be probable cause to search.

Miller:  I guess we can kind of call this a conditional search warrant?

Hodges:  Sure.  And as long as -- remember if the condition -- that is, the triggering event -- doesn’t happen, no search.

Miller:  Is there anything else that the officers have to say to get an anticipatory warrant?

Hodges:  Well, not only must the officers provide probable cause the evidence will be there once the triggering event occurs; they also have to show that probable cause, or show with probable cause that the event will occur.  Now, this is why the triggering event must be some identifiable event other than the passage of time.  Let me explain that.  Law enforcement just can’t go out and get anticipatory warrants for every place that suspects live and then wait around hoping contraband might show up some day.  We also have to give, in an anticipatory search warrant, the magistrate facts that establish probable cause that some identifiable event will occur; such as in the Grubbs case, delivery of the parcel.

Miller:  I think I got it.  Can you give me just maybe one more example of a triggering event?

Hodges:  Sure.  Let’s say officers have probable cause that a fugitive is going to be at a friend’s house and the officers want a search warrant to enter the house to make an arrest.  But, at that time that they request the warrant, the fugitive isn’t exactly at the house or isn’t then at the house.  In that situation, the officers would need to show that there is probable cause for an arrest, of course, plus probable cause that the fugitive is going to be at the house.  The triggering event would be the arrival of the fugitive at the house.

Miller:  Anything else, like, paperwork-wise that the officers are going to need to know?

Hodges:  Tim, before I answer that, let me talk a little bit about the PC affidavit.  And, let me review the paperwork that the agents are going to have.  They are going to have an application for a warrant.  That’s a form, standard form, that’s used in all the district courts.  The officers are going to sign that application for a warrant.  They also are going to prepare a search warrant that is all filled out with everything except for the magistrate’s signature.  The magistrate approves the warrant, he signs the warrant; he doesn’t approve it, he doesn’t sign it; or if the magistrate wants to modify the warrant, he or she can do that as well.  The hard part about a search warrant is the probable cause affidavit.  This is going to be a statement by the officer requesting the warrant and it usually starts off with the officer telling a little bit about his training, education and experience.  So when the officer says, “I know this,” or “in my experience,” there is some basis for the magistrate to know that.  Then, the officer is going to set out facts.  We keep on talking about a PC affidavit -- it really doesn’t matter whether or not the officer thinks he has probable cause.  Who has to decide probable cause is going to be the magistrate.  What the officer has to do is set out sufficient facts and circumstances from which the magistrate can conclude their probable cause.  Now, in addition to an ordinary warrant which would say or, I would say that in an ordinary warrant, you say I have probable cause that the evidence is presently there.  An anticipatory warrant says it a little bit different.  In an anticipatory warrant what they say is, “Judge, I don’t have PC the evidence is currently there, but I do have PC that the evidence is going to be there, and if this triggering event occurs, then I want to go in and search the house.”

Miller:  Other than the affidavit, does the triggering event have to be stated anywhere else?

Hodges:  No, it doesn’t.  In fact, the main issue in the case was whether the warrant itself had to state the triggering event.  This case came up from an appeal from the 9th Circuit.  The 9th Circuit had said that either the warrant or documents incorporated by reference and made known to Grubbs, such as the affidavit, had to disclose the triggering event.  And, the circuit court was reversed on that point. The Supreme Court held that neither the warrant nor any of the accompanying documents provided or made known to Grubbs had to identify the triggering event.  But, let’s be clear, that while the warrant or the information given in Grubbs doesn’t have to have the triggering event, the PC affidavit must.

Miller:  Keith, is there anything else we need to know about this case?

Hodges:  Tim, I really think we have covered all the major points in the Grubbs case.  And, let me close with the observation that anticipatory warrants have been around for a while, the court recognized it, and the court had no trouble in finding their use by law enforcement constitutional.  And, what we see, or the result of the Grubbs case, is that this is another tool officers and agents have and I think in many situations it is a very useful tool.

Miller:  Mr. Hodges, I want to thank you very much and I hope see you again.

Hodges:  Thank you, sir.

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