547 U.S. 90 (2006)
Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector.1 Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to Grubbs’ residence in the Eastern District of California.2
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.3 The affidavit stated that execution of the search warrant would not occur unless and until the parcel had been received by a person or persons and had been physically taken into the residence.4 The affidavit referred to two attachments describing Grubbs’ residence and the items officers would seize.5 Those attachments but not the body of the affidavit were incorporated into the requested warrant.6 The Magistrate Judge issued the warrant as requested.7
Two days later an undercover postal inspector delivered the package.8 Grubbs’ wife signed for it and took the unopened package inside.9 The inspectors detained Grubbs as he left his home a few minutes later, then entered the house and commenced the search.10 Roughly 30 minutes into the search Grubbs was provided with a copy of the warrant that included both attachments but not the supporting affidavit.11 He consented to interrogation by the postal inspectors and admitted ordering the videotape. He was placed under arrest, and the officers seized the videotape and other items.12
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 under 18 U.S.C. § 2252(a)(2).13 He moved to suppress the evidence seized during the search of his residence, arguing as relevant here that the warrant was invalid because it failed to list the triggering condition.14 After an evidentiary hearing, the District Court denied the motion.15 Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress.16 The Court of Appeals for the Ninth Circuit reversed.17 The Supreme Court granted certiorari.18
Whether anticipatory search warrants are categorically unconstitutional under the Fourth Amendment?19
The Fourth Amendment requires that no warrants shall issue but upon probable cause.20 Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place when the search is conducted.21 An anticipatory warrant is one based upon an affidavit showing probable cause that at some future time evidence of crime will be located at a specified place.22 Most such warrants are subject to a triggering condition other than the mere passage of time.23
No. The probable cause requirement looks to whether evidence will be found when the search is conducted.24 All warrants are anticipatory in a sense as the magistrate predicts the item will still be there upon execution.25 In the established facts the affidavit established that successful delivery of the videotape to Grubbs residence would plainly establish probable cause for the search.26 It also showed probable cause to believe the triggering condition would be satisfied because refusal of delivery was unlikely.27
The magistrate therefore had a substantial basis for concluding that probable cause existed when the warrant was executed after the controlled delivery arranged by the postal inspectors.28
Anticipatory search warrants are not categorically unconstitutional under the Fourth Amendment.29
Related opinions on this issue
Justice Souter agrees with the Court that anticipatory warrants are constitutional for the reasons stated in Part II of the Court’s opinion and joins in the disposition of this case.30 He would qualify some points made in Part III.31
The textual difference between the particularity requirement and conditions on authorization is no authority for neglecting to specify the point or contingency intended by the magistrate to trigger authorization.32 The government should beware of banking on the terms of a warrant without such specification.
Whether the Fourth Amendment’s particularity requirement requires that the triggering condition for an anticipatory search warrant be set forth in the warrant itself?33
The Fourth Amendment specifies only two matters that must be particularly described in the warrant: the place to be searched and the persons or things to be seized.34 It does not set forth some general particularity requirement and does not require that the warrant set forth the magistrate’s basis for finding probable cause or describe a triggering condition.35
No. The language of the Fourth Amendment is decisive.36 Its particularity requirement does not include the conditions precedent to execution of the warrant.37 In the established facts the warrant included the two attachments describing the residence and items to be seized but not the body of the affidavit containing the triggering condition.38 The search proceeded after delivery without the affidavit being presented to Grubbs or his wife.39
The Fourth Amendment does not require the warrant to delineate the limits of the executing officer’s power by listing preconditions.40 It does not require assurance to the property owner of the lawful authority by presenting the triggering condition before the search.41
The Fourth Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself.42
Related opinions on this issue
Justice Souter would qualify the majority’s treatment of Part III by warning that the government should beware of banking on the terms of a warrant without specification of the triggering condition.43 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.44 An incomplete anticipatory warrant does not address an owner’s interest in an accurate statement of the government’s authority to search property.45
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.46 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.47