Logic Nazi,

I suppose we could think a lot of things, but we'd have to ignore the letter and the spirit of the constitution and the bill of rights.

Or, if I accepted your reasoning, couldn't the requirement to describe specifically the persons or places to be searched also be spelled out later, you know, by the police officer at the time of execution? We could just issue them all a sheet of anticipatory warrants and a log book.

It seems to me that if fact X (presently not true and not proven) is required for probable cause to exist, then the applicant must at some time proven fact X has happened and is true before the warrant can issue. This is pretty simple. Otherwise, the critical fact is left for the judgment of the applicant officer, which is contrary to the 4th Amendment.

I should think one could apply for a manner of anticipatory warrant -- lay the general grounds before the judge in writing under oath -- and then, when fact X becomes true, telephone in, be sworn and attest to the evidence showing fact X is true (or that probable cause exists to believe it is true) and have the warrant issue. If the officers want to get very fancy, they do have cell phone faxes (altho I'm not aware of any strict requirement that the officer have the signed copy in hand anyway, that seems to be good procedure (if only so that the person being served knows the search is backed by law and how far it may go, but I suppose being shown a copy of the draft warrant with verbal affirmation it has been signed would meet this end).

But otherwise, the officer is left to judge the nature of the evidence. A UPS package arrived at the door -- aha, that must be the delivery! -- when that is a function for the magistrate.

Dave Hardy,

Telephonic warrants as you describe are already common practice and are not particularly controversial.

What makes you think that "upon", in this context, means "after", rather than "on the grounds of"?

As for the objection that an anticipatory warrant leaves it to the judgment of the policeman whether the triggering event has actually occured, AIUI judges issuing warrants always take the police's word that the events they are describing have occured. There is never any sort of evidentiary hearing, where the truth of the police's assertions are tested; the police simply lay out the facts, and the judge, assuming these facts to be true, decides whether they constitute probable cause. If it turns out that the facts weren't as the police represented them, then the warrant can be retroactively invalidated.

So what difference does it make whether the judge says "since you tell me that X has occured, you may execute the search", or "if X should occur, you may execute the search"? Either way, it's the police, not the judge, who decide that X has occured.

What if "issue" means "take legal effect"? The problem with textual analysis arises when you redefine terms and then claim that your redefinition is equivalent to the "plain text." There is obviously more than one way to read "issue."

Fine. Now, does Blackstone define "upon"? I understand "upon", in this context, to mean "based on", "on the grounds of", not as "subsequent to". Got any cites that specifically relate it to a temporal sequence?

But in all contexts other than anticipatory warrants, "signed by the judge" and "take legal effect" mean the exact same thing. We're in new territory here. If the plain text is an obvious barrier to fashioning anticipatory warrants, it's probably an obvious barrier to establishing an air force as well.

"So what difference does it make whether the judge says "since you tell me that X has occured, you may execute the search", or "if X should occur, you may execute the search"?"

Well, you can't you jail the cop for lying under oath in the second case, can you?

I think, in fairness to Milhouse's argument, when he uses "based on" or "on the grounds of" he is indicating a hypothetical condition. Which is still begging the question.

Sheesh.

Anticipatory warrant? Just a 180 from "ex post facto", is it not? I vaguely recall the latter being used as one of the reasons for a war, someplace... Oh, yeah, it was the one ex-Pres Carter said meed not have happened since Australia became a country in its own right without a war.

Yes, we do sometimes do something of the sort with respect to certain people: the ones we laypeople call the criminally insane, locked out of society for fear of future actions on their part. Not sure why I consider that diferent, but I do.

Prof. Kerr:
"Timing is everything," no matter what the government argues in Grubbs.
In its eventual holding in Grubbs, the court most likely will find anticipatory warrants are not unconstitutional. However, to limit inconsistent lower court rulings as to issuance or denial of ant. warrant applications and derivative evidentiary hearings, the court will most likely concur with the Ninth District and find that "time matters."
The Government's brief in Grubbs claims:

The Particularity Requirement Of The Fourth Amendment Does Not Apply To The Triggering Condition For An Anticipatory Search Warrant
...
Even if an anticipatory warrant that does not specify the triggering condition can be considered overbroad as to time (because, on its face, it authorizes a search before the triggering event has occurred), such a warrant is not facially invalid.

The government's brief further states in part:

No suppression would be required, however, as long as the search occurred after the triggering event.(as is the case here).

No mention is made in the government's brief regarding how long the government proposes the issuance would be vaild after the triggering event. To so state would be an admission that time matters.

For reasons discussed briefly below, to guide the lower courts, the court should consider including a "Grubbs Particularity Test" in their holding.
In part, the proposed "Grubbs Particularity Test" should provide lower courts guidnace in:

(1.) Limiting the remoteness in time and
(2.) Limiting the variance in timebetween the particular description submitted to the court forecasting the expected timing of the triggering event and the time the triggering event actually occured and the anticipatory warrant was served; (And impliedly requiring reasonable concordance between the predicted time, and the actual time.)
TIME MATTERS:
OBSERVATION ONE:
By submitting an application for an Anticipatory Warrant, prosecutors are admitting to the court they lack probable cause to support issuance of the same warrant at the "present time";
If Prosecutors retained a set of facts supporting issuance of a Traditional Warrant, it is likely they would seek to serve a warrant now as opposed to later.
OBSERVATION TWO:
All facts and circumstances kept constant, an anticipatory warrant has a higher degree than a traditional warrant of not being supported by the actual facts found ex-post. This likelihood of an invaild warrant being served increases with increase in time waiting for the trigger event after the warrant issues. This would seem to further support inclusion in the proposed Grubbs Particularity Test of a provision for limiting the remoteness in time from the date the application for the issue of the anticipatory warrant is considered and approved by the court.
Given:
Court issues a Traditional Warrant:
Based on totality/set of facts and circumstances
{A, B, C, D...}.
Given:
Court issues an Anticipatory Warrant:
Based on same set of facts {A,B,C, D...T ...}
Only under the anticipatory warrant scenario, contingent event "A" has yet to happen. Notice that because contingent event "A" has yet to happen, variable "T" has been added to the set of variables on which the Anticipatory warrant is premised and issued. Exogenous variable "T" represents time from the present set of facts, until the contingent event occurs, and the warrant is served. "T" is colinear with and therefore related to trigger event variable "A." "T" impliedly represents RISK not extant in the set of facts on which issuance of a traditional warrant would rest, all other variables kept constant/ ceteris paribus. Time "T" represents imputed RISK that the anticipatory warrant will be invalid because ex post, the actual fact outcome does not support the warrant. As time T increases, so does the probablity of an invalid warrant because there is more time for the other variables to change. Time "T" therefor forms an integral part of the "totality of facts and circumstances" that should be considered by the issuing court.
===

If the constitution said, "no warrants shall issue, but based on probable cause," or "no warrants shall issue, but on the grounds of probable cause," doesn't that still prohibit anticipatory warrants?

No, it doesn't. That's why you originally wrote: 'In this context, it seems to me that "upon" means "following the establishment of'; and if that's what "upon" means, then you're right.

But I don't think that is what it means. All it means, I think, is that the grounds for the warrant must add up to probable cause. So when the police tell the magistrate the facts as they know them, if he thinks they don't add up to probable cause, he must not issue the warrant, and if he does issue it then it's invalid. Similarly, if what the police told him turned out not to be facts after all, then his decision that they added up to probable cause is irrelevant, and the warrant is retroactively invalid.

But nowhere does it say that the magistrate's assesment of the facts, and decision that they constitute probable cause, and the consequent issue of the warrant, must occur after the facts themselves. All the magistrate is doing is issuing a legal opinion, based on a set of givens. If X and Y and Z are all true, then probable cause exists, otherwise it doesn't. He can do so when X and Y and Z are all true, or he can do so before they become true; if they never do, then his opinion, while still true, is irrelevant.

I think I understand better now the principle behind the anticipatory warrant, and the legal standard upon which it is premised, instead of probable cause, the probability of probable cause. Because there will probably be probable cause sometime in the future. Probably.

The problem is WHO determines when the triggering event has occurred--a police officer or a neutral magistrate? Quite often it won't be so black and white and with an anticipatory warrant, it will be the police who make the probable cause determination, claiming that the triggering event has occurred.

Ultimately we're just opening another door to another 4th Amendment warrant "exception" whereby police officers will be permitted to say they were "reasonable" in believing that the triggering event had occurred, even though it actually didn't. So you'll have warrants issued without probable cause, executed without probable cause, but that still won't be permitted to be the basis of a motion to suppress because the officer was "reasonble" (somehow).

What Milhouse suggests, I think, is not so unreasonable. Lets look at a concrete example: Officer Proactive appears before Judge Neutral with sufficiently particular warrant application. His accompanying affidavit reports that a particular informant (assume informant satisfies all applicable standards) has reported that specified person, who lives at specified place is dealer in specified contraband; that modus operandi of this person is to receive contraband via delivery from FL by DHL, sent to "John Q. Doe." Affidavit also reports that DHL tracking #12345 indicates a package left FL on 2/20/06, to be delivered to "John Q. Doe" which is expected to arrive 2/24/06. The question is whether on 2/21/06 Judge Neutral can sign the warrant to become effective upon the delivery of a package by DHL to the residence of specified person, OR whether on 2/24/06 someone must call Judge Neutral to inform him that a package has just been delivered to the residence and inquire if this along with other info now amounts to probable cause to search the residence? I don't see a whole lot of difference. People are concerned that Officer Proactive will have discretion in determining the trigger has occurred, but he'd have similar discretion in how he crafts his phone report from the scene which is not personally observed by Judge Neutral.

I agree with the posters: this will likely open a pandora's box of problems associated with staleness; there is a fair probability (not wholly unrelated to the Court's current makeup) that it will further expand the good faith exception, etc. But, I also agree with the opinion that the point of "issue" concerns legal effectiveness more so than when the signature is attached. And despite Defending's comment its not really the case that the warrant is issued on the probabilty of probable cause (i.e. that if the package arrives on 2/24/06 then probable cause will probably be satisfied), but the certainty of probable if, and only if the stated contingency actually occurs (note: by "certainty" I mean only the same degree of "certainty" which accompanies a finding of probable cause after the facts on which it is based have actually occurred).

In a very strict sense, I think your textual argument is quite sound. At the same time a contingent warrant, if particular in its description of the trigger and possibly self-invalidating after some time, does not strike me as violence to principles underlying the text.

cbmuche:
At the same time a contingent warrant, if particular in its description of the trigger and possibly self-invalidating after some time, does not strike me as violence to principles underlying the text.
Apart from the fundamental question of whether an anticipatory warrant is unconsitutional per se, you have more or less stated the secondary issue before the court.
Brief for Defendant/Respondent in Grubbs states the Question presented for review to be:

Whether warrants issued in advance of present probable cause are constitutionally infirm or, if permissible in limited circumstances, whether anticipatory warrants must particularly state the triggering condition, the occurrence of which is required for the valid operation of the warrant.

Prof. Kerr,

Probably probable cause sounds about right as a description of the legal standard at issue. I'm glad to see we're on the same wavelength here.

http://www.nyujll.org/blog/?p=99