United States v. Grubbs - Opinion Announcement

Argument of Speaker

Mr. Speaker: Justice Scalia has the opinion in 04-1414, United States versus Grubbs.

Argument of Justice Scalia

Mr. Scalia: This case is here on writ of certiorari to the 9th Circuit.

The respondent Jeffrey Grubbs purchased a video tape containing child pornography from a website operated by an undercover Postal Inspector.

Officers from the Postal Inspection Service then arranged a controlled delivery of the video tape to Grubb’s residence.

They submitted a search warrant application to a Magistrate Judge for the Eastern District of California, accompanied by a affidavit explaining that the warrant would not be executed unless and until the controlled delivery was successful.

In addition to describing this triggering condition for the warrant, the affidavit referred to two attachments that described the residence to be searched and the items to be seized.

These attachments, but not the body of the affidavit, were incorporated into the warrant.

The Magistrate Judge issued the warrant as requested.

After the package was delivered, the officers conducted a search of Grubbs’s residence.

They provided him with a copy of the warrant which included both attachments, but not the supporting affidavit that explained when the warrant would be executed.

Grubbs was arrested after he admitted ordering the video tape, and police seized the video tape and the other items.

A grand jury for the Eastern District of California indicted Grubbs for receiving child pornography.

He unsuccessfully sought to suppress the seized evidence, arguing as relevant here, that the warrant was invalid because it failed to set forth the triggering condition.

Grubbs pleaded guilty but reserved his right to appeal the denial of his motion to suppress.

The Court of Appeals for the Ninth Circuit reversed invalidating the warrant on the ground that, “The particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant”.

In an opinion filed with the clerk today, we reversed the judgment of the 9th Circuit.

We agree with the 9th Circuit and all other Circuits that have considered this issue that anticipatory warrants are not categorically unconstitutional.

Unlike the 9th Circuit however, we conclude that the particularity requirement of the Fourth Amendment does not require that an anticipatory warrant set forth the conditions precedent to its execution.

An Anticipatory Warrant is a warrant based upon an affidavit showing probable cause that at some future time but not presently, certain evidence of the crime will be located at a specified place.

Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time, or so called ‘triggering’ condition, in this case for example, the execution of the warrant was conditioned on successful delivery of the parcel containing the pornography.

Grubbs argues that such warrants contravene the Fourth Amendment’s provision that, “No warrants shall issue but upon probable cause”.

Our cases make clear however, that Probable Cause exists when “There is a fair probability that contraband or evidence of a crime will be found, not now exists, but will be found in a particular place”.

Because the Probable Cause requirement looks to whether evidence will be found when the search is concluded, all warrants are, in some sense anticipatory.

So called Anticipatory Warrants are no different in principle from other warrants; they require the Magistrate to determine that it is now probable that contraband, evidence of a crime, or a fugitive will be on the described premises when the warrant is executed.

When however, the Anticipatory Warrant places a condition on its execution other than the mere passage of time, the probability that a proper object of seizure will be on the described premises also depends on the likelihood that the condition will occur; that is, it must not only be probable that if the triggering condition occurs, contraband evidence of a crime or a fugitive will be found at the location of the search,

but it must also be probable that the triggering condition will occur.

In this case, the occurrence of the triggering condition, successful delivery of the video tape, would plainly establish Probable Cause for the search, and the affidavit established Probable Cause to believe that the triggering condition would indeed be satisfied.

On the 9th Circuit’s view, the warrant at issue here, in addition to violating the Probable Cause requirement, the warrant violated the Fourth Amendment’s Particularity Requirement because it failed to specify the triggering condition.

This holding is impossible to square with the text of the Fourth Amendment which lists only two matters that must be particularly described in the warrant, namely, the place to be searched and the persons or things to be seized; that language is precise, clear, and decisive.

The Particularity Requirement does not include the conditions precedent to execution of the warrant, and the 9th Circuit therefore erred in invalidating the warrant.

The judgment of the Court of Appeals has reversed and the case is remanded for further proceedings consistent with this opinion.

Justice Souter has filed an opinion concurring in part and concurring in the judgment, in which Justices Stevens and Ginsburg have joined.