Anticipatory search warrants: ready, fire, aim!

This morning two friends and I were discussing the conflict between individual privacy and government searches, and we observed that individual privacy seems to be shrinking too fast for our liking. So a few hours later when I read a post on anticipatory search warrants at The Volokh Conspiracy (via Instapundit), I got very interested.
The debate centers on a federal case called United States v. Grubbs, which the Ninth Circus Circuit Court of Appeals decided in July of 2004. The Grubbs decision held that anticipatory search warrants are constitutional. What’s the difference between a regular old search warrant and an anticipatory warrant, you ask? Take a look at the plain vanilla version first.
Let’s say the FBI wants to search your house for documents showing that you gave megabucks to the 2005 Islamic Jihad Recruiting Drive and Cookie Bake-Off. To raid your home legally under the Fourth Amendment to the U.S. Constitution, the FBI would first have to convince a neutral magistrate to issue a search warrant. That means they’d have to show probable cause (which roughly means “enough evidence to convince a reasonable person”) that those documents are in your house. They’d sign an affidavit to that effect, after which the magistrate might issue a warrant allowing them to enter your home to grab the documents.
So the order is:

  1. Probable cause shown
  2. Magistrate makes judgment call
  3. Warrant issued
  4. Cops conduct search

Well, last year in the Ninth Circuit, Judge Stephen Reinhardt (a Carter appointee and liberal judicial activist) upheld “anticipatory warrants”, which rearrange the steps like so:

  1. Warrant issued
  2. Probable cause shown
  3. Cops make judgment call
  4. Cops conduct search

Sounds unconstitutional, right? Not to worry, says Judge Reinhardt. You see, although anticipatory warrants are issued without probable cause because the cops haven’t presented all the required evidence yet, the boys in blue anticipate that the last bits of evidence will fall into place at some point.
So our trusty magistrate writes out the warrant with a special triggering clause, so that it only takes effect after the cops find those last bits of evidence. At that point, the theory goes, the cops have cleared the probable cause hurdle and can conduct their search. In other words, the cops wait for the “triggering event” written into the warrant, and when they are satisfied that everything’s kosher they raid your house … while our friend the progressive magistrate is already out on the golf course.
Orin Kerr isn’t comforted:

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 [Ed: in other words, the “triggering event”] 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.

I think Justices Scalia and Thomas are going to have serious problems with anticipatory warrants. The Fourth Amendment states that “no Warrants shall issue, but upon probable cause.” Anticipatory warrants are warrants that issue without probable cause; the probable cause comes after the warrant has been issued. … Scalia and Thomas will probably say that this is a no-no. And when Scalia and Thomas have pro-defendant inclinations in criminal cases, there are usually a few more votes from liberal Justices ready to join them.

Joining the I-ain’t-buying-it chorus is Kevin Drum, a liberal blogger who a bit more than a year ago accurately summarized the biggest problem with anticipatory warrants:

… the problem with this is that a “future event” isn’t necessarily a simple, clear-cut incident. It might be something that’s unmistakably black-and-white, but it also might be something based on the suspect’s behavior that’s a bit of a judgment call.
And that’s disturbing. The whole point of a warrant is that it prevents police from making their own judgment calls and requires them to make their case to a neutral judge if they want to execute a search. I wonder how long this has been going on and how common it is?

Too long and too often, I’ll bet. Most Fourth Amendment judgment calls ought to be reserved for, um, judges. I’ll be watching this case closely to see whether the Supreme Court swallows Reinhardt’s goofy and unconstitutional reasoning. God willing, they’ll follow their past habits and send him packing.
So are you interested in who President Bush nominates to replace Justice O’Connor yet?

More blogging:

New World Man
Crime & Federalism

UPDATE: This post has merged into today’s Beltway Traffic Jam.

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