I have read a lot of Fourth Amendment cases over the last few years, but today I learned something new: several courts of appeals have allowed the government to obtain and execute "anticipatory" search warrants. According to these cases, the government can get a warrant even if their case for probable cause hinges on some future event. If the future event occurs, the warrant becomes operative and they can execute the search. If the future event does not occur, then the warrant is not yet operative and they cannot execute the search.

   The Ninth Circuit's most recent decision, last week's United States v. Grubbs , provides a helpful illustration. The police obtained a warrant to search a home for child pornography. The "condition precedent" was the receipt of child pornography that the suspect had ordered to be delivered to his home. The police obtained the warrant, and then waited for the item to be delivered. When it was delivered, the police executed the warrant.

   Maybe I am missing something, but I find this line of cases quite troublesome. The whole point of a warrant requirement is to have a neutral magistrate decide when probable cause exists. The decision to authorize the search is up to the judge, not the police officer. The addition of a condition precedent delegates that decisionmaking authority to the law enforcement officer, at least in part. Because the officer decides when the triggering event has occurred, the probable cause determination is no longer made entirely by the neutral magistrate.