In U.S. v. Grubbs, No. 04-1414 (March 21, 2006), the Supreme Court reversed the Ninth Circuit which had held that an anticipatory search warrant that fails to contain the operative triggering condition runs afoul of the Fourth Amendment. Here, federal agents requested an anticipatory search warrant for a house where a videotape containing child pornography was going to be delivered as part of a sting operation. An affidavit that was part of the application stated that "Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been taken into the residence." That affidavit was NOT included as part of the search warrant issued by the Magistrate and used by federal agents to search the home for the tape after the tape had been delivered to the home, received by the defendant's wife and taken inside the residence. The Ninth Circuit vacated the conviction holding that "the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant."
Reversing the Ninth Circuit, the Supreme Court first held that conditioned anticipatory search warrants are consistent with the Fourth Amendment. The only limitation placed on such warrants by the Fourth Amendment's requirement of probable cause is that "two prerequisites of probability must be satisfied": 1) if the triggering condition occurs, a fair probability exists that contraband will be found in a particular place; and 2) "probable cause to believe that the triggering condition will occur." Here, both prerequisites of probability were satisfied.
Turning to the issue of whether the Fourth Amendment's particularity requirement was violated by the failure to have the triggering condition included in the search warrant, the Court held that no such violation had occurred. Relying on the express language of the Fourth Amendment, the Court held that 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." The Court further noted that "neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure imposes [ ] a requirement . . . that the executing officer must present the property owner with a copy of the warrant before conducting his search."
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