The Fourth Amendment
March 22, 2006 2:39 AM Subscribe
The Fourth Amendment provides, in part, that "...no Warrants shall issue, but upon probable cause." The Supreme Court has issued its (yet another) 8-0 opinion, authored by Justice Scalia in the case of United States v. Grubbs, overturning the Ninth Circuit decision. Justice Souter filed a concurring opinion. Grubbs deals with the question of anticipatory warrants, and it is the first time that the Court has addressed the practice. It appears that under this ruling, preemptive warrants can issue without existing probable cause, but merely on the supposition that probable cause will exist in the future.
Some legal scholars had anticipated that at least the more conservative members of the Court would rule against anticipatory warrants. After all, under Blackstone's analysis of the common law rule that contributed to the Fourth Amendment, as noted by Professor Orin Kerr in the NYU Journal of Law and Liberty symposium on the subject, warrants "issue" when they are signed by the judge, and not when the precedent condition occurs. Professor Chris Slobogin disagrees. Kerr has posted a preliminary analysis of the decision on his new blawg. The case has previously been discussed by the smart people over at the Volokh Conspiracy.
Some legal scholars had anticipated that at least the more conservative members of the Court would rule against anticipatory warrants. After all, under Blackstone's analysis of the common law rule that contributed to the Fourth Amendment, as noted by Professor Orin Kerr in the NYU Journal of Law and Liberty symposium on the subject, warrants "issue" when they are signed by the judge, and not when the precedent condition occurs. Professor Chris Slobogin disagrees. Kerr has posted a preliminary analysis of the decision on his new blawg. The case has previously been discussed by the smart people over at the Volokh Conspiracy.
According to the Fourth Amendment, probable cause must exist for a warrant to be issued; anticipatory warrants, however, are issued when probable cause is expected, but is yet to exist. The warrant can then be executed once the expected event has occurred.
In Grubbs, an anticipatory warrant was obtained to search Mr. Grubbs' house for child pornography. The activation condition for the warrant was the receipt of child pornography that Mr. Grubbs had ordered delivered to his home; once the item was delivered, the police executed the warrant and searched the house.
Mr. Grubbs plead guilty after the motion to supress the evidence was denied by the court, reserving, however, the right to appeal that denial. On appeal, the district court was reversed. The opinion held that the search warrant was invalid insofar as it did not list the items to be searched for. Instead, this information was contained in an affidavit that was not shown to Mr. Grubbs. The Supreme Court overruled the reversal, as per above.
While I can certainly understand how useful anticipatory warrants may be to the law enforcement, it is at the very least odd that the Court seems to sanction this practice without hesitation. It is hard to see how a plain-text meaning of the Fourth Amendment would allow for an order to issue without existing probable cause, and yet that is precisely what the Court (and Scalia, no less) has allowed.
The practice is further problematic and of concern in that it appears to delegate at least some of the authority of the "neutral magistrate" (i.e., the judge) to the police, since upon issuance of the anticipatory warrant, it is left up to the police to determine when the specified event has occurred and the warrant can become activated. There is of course no need to belabor the fact that police and law enforcement personnel in general cannot be assumed to always act in good faith; indeed, the protections and prohibitions contained in the Bill of Rights are testament to this.
posted by Pontius Pilate at 2:50 AM on March 22, 2006
In Grubbs, an anticipatory warrant was obtained to search Mr. Grubbs' house for child pornography. The activation condition for the warrant was the receipt of child pornography that Mr. Grubbs had ordered delivered to his home; once the item was delivered, the police executed the warrant and searched the house.
Mr. Grubbs plead guilty after the motion to supress the evidence was denied by the court, reserving, however, the right to appeal that denial. On appeal, the district court was reversed. The opinion held that the search warrant was invalid insofar as it did not list the items to be searched for. Instead, this information was contained in an affidavit that was not shown to Mr. Grubbs. The Supreme Court overruled the reversal, as per above.
While I can certainly understand how useful anticipatory warrants may be to the law enforcement, it is at the very least odd that the Court seems to sanction this practice without hesitation. It is hard to see how a plain-text meaning of the Fourth Amendment would allow for an order to issue without existing probable cause, and yet that is precisely what the Court (and Scalia, no less) has allowed.
The practice is further problematic and of concern in that it appears to delegate at least some of the authority of the "neutral magistrate" (i.e., the judge) to the police, since upon issuance of the anticipatory warrant, it is left up to the police to determine when the specified event has occurred and the warrant can become activated. There is of course no need to belabor the fact that police and law enforcement personnel in general cannot be assumed to always act in good faith; indeed, the protections and prohibitions contained in the Bill of Rights are testament to this.
posted by Pontius Pilate at 2:50 AM on March 22, 2006
Why have a constitution at all if the leaders continually piss all over it?
The concern here is that it's no longer "piss[ing] all over it" if the Court sanctions the practice - at that point, the pissing is constitutionally permissible.
posted by Pontius Pilate at 2:52 AM on March 22, 2006
The concern here is that it's no longer "piss[ing] all over it" if the Court sanctions the practice - at that point, the pissing is constitutionally permissible.
posted by Pontius Pilate at 2:52 AM on March 22, 2006
It appears that under this ruling, preemptive warrants can issue without existing probable cause, but merely on the supposition that probable cause will exist in the future.
That's a really crappy misleading summary of what an anticipatory warrant is. This thread will suck because of it.
posted by cillit bang at 2:55 AM on March 22, 2006
That's a really crappy misleading summary of what an anticipatory warrant is. This thread will suck because of it.
posted by cillit bang at 2:55 AM on March 22, 2006
The concern here is that it's no longer "piss[ing] all over it" if the Court sanctions the practice - at that point, the pissing is constitutionally permissible.
I'll rephrase.
Why have a constitution at all if the executive and judicial brances just have a pissing contest on it?
posted by Talez at 3:00 AM on March 22, 2006
I'll rephrase.
Why have a constitution at all if the executive and judicial brances just have a pissing contest on it?
posted by Talez at 3:00 AM on March 22, 2006
Anticipatory warrants (from the SCOTUS judgement) are:
posted by athenian at 3:15 AM on March 22, 2006
based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.So not quite that probable cause will apparate out of nowhere, but more that evidence might appear or be moved to the place to which the warrant relates.
posted by athenian at 3:15 AM on March 22, 2006
I don't think my summary implied at all that probable cause will appear out of nowhere. Athenian, what you are saying - "more that the evidence might appear or be moved to the place to which the warrant relates" - doesn't make much sense, since if you can show probable cause that the evidence already exists (which would be a prerequisite for it to be moved to the specified location), you could just obtain a regular warrant without the need for the anticipatory warrant.
posted by Pontius Pilate at 3:24 AM on March 22, 2006
posted by Pontius Pilate at 3:24 AM on March 22, 2006
That's a really crappy misleading summary of what an anticipatory warrant is. This thread will suck because of it.
The trouble with affidavits that show probable cause at a future time is that unless you have a really good crystal ball, you cannot predict with absolute certainty the conditions that will or will not exist in the future. I think that much is a given. Considering this, I think it's fair to use the word "supposition" when describing the future state of affairs.
posted by Pontius Pilate at 3:27 AM on March 22, 2006
The trouble with affidavits that show probable cause at a future time is that unless you have a really good crystal ball, you cannot predict with absolute certainty the conditions that will or will not exist in the future. I think that much is a given. Considering this, I think it's fair to use the word "supposition" when describing the future state of affairs.
posted by Pontius Pilate at 3:27 AM on March 22, 2006
(Err. "Absolute certainty" above should have been "sufficient certainty," since we are talking about probable cause.)
posted by Pontius Pilate at 3:30 AM on March 22, 2006
posted by Pontius Pilate at 3:30 AM on March 22, 2006
But that's irrelevant. There is no need to predict anything because you cannot perform the search until the conditions for probable cause have been met.
So yes, while the judge can issue a warrant based on a "supposition that probable cause will exist in the future", absolutely crucially, no actual search can occur until that supposition has been proved.
posted by cillit bang at 3:50 AM on March 22, 2006
So yes, while the judge can issue a warrant based on a "supposition that probable cause will exist in the future", absolutely crucially, no actual search can occur until that supposition has been proved.
posted by cillit bang at 3:50 AM on March 22, 2006
So yes, while the judge can issue a warrant based on a "supposition that probable cause will exist in the future", absolutely crucially, no actual search can occur until that supposition has been proved.
Right. Except for the fact that this seems to run counter to the Fourth Amendment, which plainly says that a warrant shall not issue - issue, not activate! - but upon probable cause. If there is no existing probable cause to be shown, then the warrant should not issue. If the Fourt Amendment said "no warrants shall activate, but upon probable cause," then there would be no objection. In light of the fact that it does not, this practice does not seem permissible. That is my problem with the ruling.
posted by Pontius Pilate at 4:10 AM on March 22, 2006
Right. Except for the fact that this seems to run counter to the Fourth Amendment, which plainly says that a warrant shall not issue - issue, not activate! - but upon probable cause. If there is no existing probable cause to be shown, then the warrant should not issue. If the Fourt Amendment said "no warrants shall activate, but upon probable cause," then there would be no objection. In light of the fact that it does not, this practice does not seem permissible. That is my problem with the ruling.
posted by Pontius Pilate at 4:10 AM on March 22, 2006
Well, it depends really on how you define "warrant". If you consider a warrant to be something that gives you the right to search someone's person or premises, then an anticipatory warrant isn't so much a warrant as a warrant foetus. If the conditions laid out in the anticipatory warrant happen, then probable cause exists once they happen, and the anticipatory warrant changes from something which doesn't give the right to search into something which does give the right to search, which is a warrant. If the conditions laid out in the anticipatory warrant don't happen, then probable cause does not exist, and the anticipatory remains something which doesn't give the right to search.
The above, of course, is not legalistic interpretation. According to the letter of the law, the anticipatory warrant is a subset of "warrants", and therefore can't be issued. In the spirit of the law, however, it is not that-which-allows-searching, so it isn't really a warrant, any more than a law which lays out punishments for a crime is a criminal sentence, in that if someone satisfies the conditions of the law, the law will be carried out.
The whole issue could probably be avoided if they just called the thing an "application for case-dependent rapid warrant issuance" or the like, which would give the conditions necessary for a warrant to be issued immediately once probable cause is established.
posted by Bugbread at 4:24 AM on March 22, 2006
The above, of course, is not legalistic interpretation. According to the letter of the law, the anticipatory warrant is a subset of "warrants", and therefore can't be issued. In the spirit of the law, however, it is not that-which-allows-searching, so it isn't really a warrant, any more than a law which lays out punishments for a crime is a criminal sentence, in that if someone satisfies the conditions of the law, the law will be carried out.
The whole issue could probably be avoided if they just called the thing an "application for case-dependent rapid warrant issuance" or the like, which would give the conditions necessary for a warrant to be issued immediately once probable cause is established.
posted by Bugbread at 4:24 AM on March 22, 2006
And, yeah, I'd like to thank Pontius Pilate for making a really interesting FPP, but say that the summary of what the anticipatory warrant is is something with a high likelihood of misinterpretation and possible future thread derailment.
posted by Bugbread at 4:25 AM on March 22, 2006
posted by Bugbread at 4:25 AM on March 22, 2006
Bugbread: thank you, and I do agree about the likelihood of misinterpretation. (Also, I do like the idea of distinguishing anticipatory warrants from warrants-which-allow-searching - good point.)
So, to clarify the issue of anticipatory warrants, a couple of select quotes from the opinion:
"They [anticipatory warrants] require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.
...
In other words, for a conditioned anticipatory warrant to
comply with the Fourth Amendmen's requirement of
probable cause, two prerequisites of probability must be
satisfied. It must be true not only that if the triggering
condition occurs 'there is a fair probability that contraband or evidence of a crime will be found in a particular place,' but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination."
posted by Pontius Pilate at 4:37 AM on March 22, 2006
So, to clarify the issue of anticipatory warrants, a couple of select quotes from the opinion:
"They [anticipatory warrants] require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.
...
In other words, for a conditioned anticipatory warrant to
comply with the Fourth Amendmen's requirement of
probable cause, two prerequisites of probability must be
satisfied. It must be true not only that if the triggering
condition occurs 'there is a fair probability that contraband or evidence of a crime will be found in a particular place,' but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination."
posted by Pontius Pilate at 4:37 AM on March 22, 2006
This is a great post, well-worded, with substantive links, and an interesting topic and presentation.
(BUT....) Pontius, it's considered bad form to continually monitor your thread and answer each and every question and challenge. So take a few hours off and come back tomorrow to see if an interesting discussion developed.
On topic: I think that the court took the easy road and read into the constitution something that is certainly not there on its face. I haven't dug yet into the meat of their arguments (and probably won't today), but I agree with bugbread -- aren't there better ways to phrase the warrant to make it such that it requires a phonecall to a judge (or judicial officer) to confirm that now, at time t, law enforcement officers have probable cause.
I have questions about this entire enterprise as well. Why is this needed? Sure, contraband can be small, and could fit in a briefcase, a pocket, or under a fingernail. But geeez, that's always been the case, right? What's different about this situation that *necessitated* a warrant that magically springs into being when some conditions in the world change? Why couldn't they have waited until he took delivery of the goods, and then gone to a judge with a prepared and "ready to go" warrant, and then executed a perfectly acceptable 4th-amendment-complying warrant?
Why is there any law enforcement need for this?
posted by zpousman at 4:39 AM on March 22, 2006
(BUT....) Pontius, it's considered bad form to continually monitor your thread and answer each and every question and challenge. So take a few hours off and come back tomorrow to see if an interesting discussion developed.
On topic: I think that the court took the easy road and read into the constitution something that is certainly not there on its face. I haven't dug yet into the meat of their arguments (and probably won't today), but I agree with bugbread -- aren't there better ways to phrase the warrant to make it such that it requires a phonecall to a judge (or judicial officer) to confirm that now, at time t, law enforcement officers have probable cause.
I have questions about this entire enterprise as well. Why is this needed? Sure, contraband can be small, and could fit in a briefcase, a pocket, or under a fingernail. But geeez, that's always been the case, right? What's different about this situation that *necessitated* a warrant that magically springs into being when some conditions in the world change? Why couldn't they have waited until he took delivery of the goods, and then gone to a judge with a prepared and "ready to go" warrant, and then executed a perfectly acceptable 4th-amendment-complying warrant?
Why is there any law enforcement need for this?
posted by zpousman at 4:39 AM on March 22, 2006
zpousman : "Pontius, it's considered bad form to continually monitor your thread and answer each and every question and challenge."
I don't want to make a big deal about this, so just in passing, I was under the impression that it's bad form to 1) police your own thread, and 2) try to spur your own thread. That is, responding to different stuff in your own thread was, from what I gathered, OK, as long as you were letting the direction of the thread flow naturally, and you weren't just posting in order to jump-start the thing.
posted by Bugbread at 4:49 AM on March 22, 2006
I don't want to make a big deal about this, so just in passing, I was under the impression that it's bad form to 1) police your own thread, and 2) try to spur your own thread. That is, responding to different stuff in your own thread was, from what I gathered, OK, as long as you were letting the direction of the thread flow naturally, and you weren't just posting in order to jump-start the thing.
posted by Bugbread at 4:49 AM on March 22, 2006
zpousman: Glad you liked the post. Just to clarify: I certainly don't have any intent to attempt to control the direction of this thread; rather, I merely tried to make an effort to clear up any misconceptions about the topic so as to prevent derailing of the thread.
Still, point taken. Off to sleep for a few hours.
posted by Pontius Pilate at 5:31 AM on March 22, 2006
Still, point taken. Off to sleep for a few hours.
posted by Pontius Pilate at 5:31 AM on March 22, 2006
Setting aside whether this is a Good or a Bad thing, the wording of the fourth amendment does not specify 'existing probable cause' or 'present probably cause', but simply 'probable cause'. I can certainly understand why the Courth felt able to interpret that as comprehending 'future probable cause'.
posted by unSane at 5:49 AM on March 22, 2006
posted by unSane at 5:49 AM on March 22, 2006
Probable probable cause?
Double secret probation.
posted by three blind mice at 6:13 AM on March 22, 2006
Double secret probation.
posted by three blind mice at 6:13 AM on March 22, 2006
unsane: it says "...but upon probable cause" and that to me means, um, when the probable cause is present. But hey, I'm all about the plain reading.
posted by zpousman at 6:29 AM on March 22, 2006
posted by zpousman at 6:29 AM on March 22, 2006
How else are we to implement pre-crime protection?
Our thought police are ever vigilant in safeguarding the people!
posted by nofundy at 6:40 AM on March 22, 2006
Our thought police are ever vigilant in safeguarding the people!
posted by nofundy at 6:40 AM on March 22, 2006
I think Pontius's own selected quote sums it up nicely:
"[F]or a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs 'there is a fair probability that contraband or evidence of a crime will be found in a particular place,' but also that there is probable cause to believe the triggering condition will occur."
So an anticipatory warrant can only issue if there is presently the probability that the stated condition will occur. Probable cause is defined as a "fair probability," (from Gates, cited in the opinion), or generally a more-likely-than-not situation. The fact that this guy had ordered the contraband to be delivered to his house certainly made it more likely than not that this condition would occur (in fact, it sort of raises the spectre of entrapment, given where he ordered the tape from, but I guess noone argued that).
This is really settled law. As Scalia notes, all the circuits agree on this issue. I frankly don't know why they brought it up, his explanatory footnote notwithstanding, since no party raised the issue. The real "meat" of this holding is that the police don't have to show you all the details of the warrant when they come to search your house because the point of a warrant isn't that you can haggle with them on-site, it's that an "impartial" judge approves their limited search and you get to complain later if they go beyond it in some way. I would assume that the place and person/things to be searched/seized still need to be contained in the warrant presented to the suspect, since that is written in the Constitution and all.
posted by rkent at 6:43 AM on March 22, 2006
"[F]or a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs 'there is a fair probability that contraband or evidence of a crime will be found in a particular place,' but also that there is probable cause to believe the triggering condition will occur."
So an anticipatory warrant can only issue if there is presently the probability that the stated condition will occur. Probable cause is defined as a "fair probability," (from Gates, cited in the opinion), or generally a more-likely-than-not situation. The fact that this guy had ordered the contraband to be delivered to his house certainly made it more likely than not that this condition would occur (in fact, it sort of raises the spectre of entrapment, given where he ordered the tape from, but I guess noone argued that).
This is really settled law. As Scalia notes, all the circuits agree on this issue. I frankly don't know why they brought it up, his explanatory footnote notwithstanding, since no party raised the issue. The real "meat" of this holding is that the police don't have to show you all the details of the warrant when they come to search your house because the point of a warrant isn't that you can haggle with them on-site, it's that an "impartial" judge approves their limited search and you get to complain later if they go beyond it in some way. I would assume that the place and person/things to be searched/seized still need to be contained in the warrant presented to the suspect, since that is written in the Constitution and all.
posted by rkent at 6:43 AM on March 22, 2006
That Constitution thing people keep ranting about is just a piece of paper and don't mean shit when you got a King!
Go ahead and piss on it!
It's antiquated and useless anyway!
I got y'er amendments right here bucko!
(sorry, my evil twin is loose today)
posted by nofundy at 6:46 AM on March 22, 2006
Go ahead and piss on it!
It's antiquated and useless anyway!
I got y'er amendments right here bucko!
(sorry, my evil twin is loose today)
posted by nofundy at 6:46 AM on March 22, 2006
nofundy : "That Constitution thing people keep ranting about is just a piece of paper and don't mean shit when you got a King!
Go ahead and piss on it!
It's antiquated and useless anyway!
I got y'er amendments right here bucko!"
You might want to read the links. I get a feeling perhaps you haven't.
posted by Bugbread at 6:58 AM on March 22, 2006
Go ahead and piss on it!
It's antiquated and useless anyway!
I got y'er amendments right here bucko!"
You might want to read the links. I get a feeling perhaps you haven't.
posted by Bugbread at 6:58 AM on March 22, 2006
Telez asks:
"Why have a constitution at all if the executive and judicial brances just have a pissing contest on it?"
One thing the Constitution does not provide, is a mechanism for interpreting it. The judicial, executive and legislative branches are separate but equal, and each can interpret the Constitution.
In Marbury v. Madison, the Supreme Court asserted jurisdiction to be a final arbiter. However, it is only out of respect for the Supreme Court that we allow it to do so. I don't know how old you are, but Nixon nearly caused a constitutional crisis by asserting that the Supreme Court could not force him to turn over materials to Congress. The crisis was averted by Nixon's decision to cave in.
posted by Capt. Bligh at 7:06 AM on March 22, 2006
"Why have a constitution at all if the executive and judicial brances just have a pissing contest on it?"
One thing the Constitution does not provide, is a mechanism for interpreting it. The judicial, executive and legislative branches are separate but equal, and each can interpret the Constitution.
In Marbury v. Madison, the Supreme Court asserted jurisdiction to be a final arbiter. However, it is only out of respect for the Supreme Court that we allow it to do so. I don't know how old you are, but Nixon nearly caused a constitutional crisis by asserting that the Supreme Court could not force him to turn over materials to Congress. The crisis was averted by Nixon's decision to cave in.
posted by Capt. Bligh at 7:06 AM on March 22, 2006
Well, on the face, I can't argue too much with this. The police had a receipt showing he paid for child porn, and knew the day it was to be delivered. I would consider that more than sufficient probable cause.
The problems are going to come when it's less clear-cut. HOW anticipatory can it be? Especially when it inevitably starts getting applied to the War on Drugs.
For example: Police find out that John Doe has ordered a nice shiny new bong. Based on this, they show up at his house when it arrives, and find his pot. Is the fact he ordered a bong in itself cause to search for the pot in the future?
Or, here's a better one: Through an interesting loophole, it's actually legal to order and possess *spores* for psilocybin mushrooms, although it's illegal to possessthe grown mushrooms. So say the police get the receipts for the spores and get a warrant to search for the mushrooms in a couple weeks based on the scientific fact of their growth cycle. (or however long it takes the things to grow, I don't know offhand)
That's the point these sorts of constitutional games will get scary - and I hope SCOTUS places further restrictions on the appplications of this.
posted by InnocentBystander at 7:15 AM on March 22, 2006
The problems are going to come when it's less clear-cut. HOW anticipatory can it be? Especially when it inevitably starts getting applied to the War on Drugs.
For example: Police find out that John Doe has ordered a nice shiny new bong. Based on this, they show up at his house when it arrives, and find his pot. Is the fact he ordered a bong in itself cause to search for the pot in the future?
Or, here's a better one: Through an interesting loophole, it's actually legal to order and possess *spores* for psilocybin mushrooms, although it's illegal to possessthe grown mushrooms. So say the police get the receipts for the spores and get a warrant to search for the mushrooms in a couple weeks based on the scientific fact of their growth cycle. (or however long it takes the things to grow, I don't know offhand)
That's the point these sorts of constitutional games will get scary - and I hope SCOTUS places further restrictions on the appplications of this.
posted by InnocentBystander at 7:15 AM on March 22, 2006
InnocentBystander : "Well, on the face, I can't argue too much with this. The police had a receipt showing he paid for child porn, and knew the day it was to be delivered. I would consider that more than sufficient probable cause."
Well, from what I gather, fortunately, the judge did not believe it to be sufficient probable cause. Instead, he found it to be sufficient to make a clause which said that if he received the porn, then sufficient probable cause would be established, and a search warrant could then be served. The receipt was not sufficient to issue a current warrant, but a conditional future warrant.
InnocentBystander : "For example: Police find out that John Doe has ordered a nice shiny new bong. Based on this, they show up at his house when it arrives, and find his pot. Is the fact he ordered a bong in itself cause to search for the pot in the future?"
The question is, how do they find this pot? By entering the premises? They can't do that without a warrant. If the arrival of the bong is sufficient probable cause, then it would be whether they had an anticipatory warrant or whether they then went and got a normal warrant. If it isn't sufficient probable cause, then their anticipatory warrant wouldn't go into effect, and they couldn't enter or perform a search.
InnocentBystander : "So say the police get the receipts for the spores and get a warrant to search for the mushrooms in a couple weeks based on the scientific fact of their growth cycle."
I don't think that an anticipatory warrant could be issued for this. What would be the condition that triggered it? If the order or arrival of the spores was sufficient probable cause, they could get a conventional warrant. If it wasn't, then what would be the thing which switches the situation from insufficient probable cause to sufficient probable cause?
I think the easiest way to think of the issue, if it seems confusing, is a "conditional warrant". Instead of waiting for probable cause to exist, and then get a warrant, the police determine what thing or things might happen that would establish normal probable cause, and then get a judge to say "IF (and only if) those conditions are met, then this piece of paper will become a warrant. If they are not met, this will not become a warrant."
An example, (bad, because I'm no judge, lawyer, or policeman), would be:
Let's say buying large amounts of fertilizer and chemical X is enough to establish probable cause to search your house for bombs.
Let's say that Bob rants on the internet about blowing up federal buildings. Bob has also purchased a bunch of fertilizer recently.
The police look at Bob, and are worried that he's making bombs. However, until he buys chemical X, they don't have probable cause to search his house.
So they ask for an anticipatory warrant. The anticipatory warrant says "IF Bob buys chemical X, probable cause will be established, and you may search his house."
Now they have this anticipatory warrant, but they can't search his house. They have to wait until the conditions are met.
One day, Bob goes out and buys chemical X. The anticipatory warrant is now satisfied, and they now have the right to search his house.
His purchase of fertilizer and chemical X established probable cause. With it, they could have gotten a warrant anyway. However, with the anticipatory warrant, instead of waiting for Bob to purchase chemical X before starting the application process, they've already finished 99% of the process, and when Bob buys chemical X, the warrant activates. What they can do, in the end, is the same, but the speed with which they can do it changes. And unless Bob buys chemical X, that anticipatory warrant doesn't give them the right to do anything.
posted by Bugbread at 7:34 AM on March 22, 2006
Well, from what I gather, fortunately, the judge did not believe it to be sufficient probable cause. Instead, he found it to be sufficient to make a clause which said that if he received the porn, then sufficient probable cause would be established, and a search warrant could then be served. The receipt was not sufficient to issue a current warrant, but a conditional future warrant.
InnocentBystander : "For example: Police find out that John Doe has ordered a nice shiny new bong. Based on this, they show up at his house when it arrives, and find his pot. Is the fact he ordered a bong in itself cause to search for the pot in the future?"
The question is, how do they find this pot? By entering the premises? They can't do that without a warrant. If the arrival of the bong is sufficient probable cause, then it would be whether they had an anticipatory warrant or whether they then went and got a normal warrant. If it isn't sufficient probable cause, then their anticipatory warrant wouldn't go into effect, and they couldn't enter or perform a search.
InnocentBystander : "So say the police get the receipts for the spores and get a warrant to search for the mushrooms in a couple weeks based on the scientific fact of their growth cycle."
I don't think that an anticipatory warrant could be issued for this. What would be the condition that triggered it? If the order or arrival of the spores was sufficient probable cause, they could get a conventional warrant. If it wasn't, then what would be the thing which switches the situation from insufficient probable cause to sufficient probable cause?
I think the easiest way to think of the issue, if it seems confusing, is a "conditional warrant". Instead of waiting for probable cause to exist, and then get a warrant, the police determine what thing or things might happen that would establish normal probable cause, and then get a judge to say "IF (and only if) those conditions are met, then this piece of paper will become a warrant. If they are not met, this will not become a warrant."
An example, (bad, because I'm no judge, lawyer, or policeman), would be:
Let's say buying large amounts of fertilizer and chemical X is enough to establish probable cause to search your house for bombs.
Let's say that Bob rants on the internet about blowing up federal buildings. Bob has also purchased a bunch of fertilizer recently.
The police look at Bob, and are worried that he's making bombs. However, until he buys chemical X, they don't have probable cause to search his house.
So they ask for an anticipatory warrant. The anticipatory warrant says "IF Bob buys chemical X, probable cause will be established, and you may search his house."
Now they have this anticipatory warrant, but they can't search his house. They have to wait until the conditions are met.
One day, Bob goes out and buys chemical X. The anticipatory warrant is now satisfied, and they now have the right to search his house.
His purchase of fertilizer and chemical X established probable cause. With it, they could have gotten a warrant anyway. However, with the anticipatory warrant, instead of waiting for Bob to purchase chemical X before starting the application process, they've already finished 99% of the process, and when Bob buys chemical X, the warrant activates. What they can do, in the end, is the same, but the speed with which they can do it changes. And unless Bob buys chemical X, that anticipatory warrant doesn't give them the right to do anything.
posted by Bugbread at 7:34 AM on March 22, 2006
bugbread : "Instead, he found it to be sufficient to make a clause which said that if he received the porn, then sufficient probable cause would be established, and a search warrant could then be served. The receipt was not sufficient to issue a current warrant, but a conditional future warrant."
Er, sorry, that was kinda unclear. When I say "receipt" in that last sentence, I mean "piece of paper", not "noun form of 'receive'". So the receiving-of-the-package was sufficient to issue a warrant, and the piece-of-paper-indicating-ordering-the-video was sufficient to issue a conditional future warrant.
posted by Bugbread at 7:42 AM on March 22, 2006
Er, sorry, that was kinda unclear. When I say "receipt" in that last sentence, I mean "piece of paper", not "noun form of 'receive'". So the receiving-of-the-package was sufficient to issue a warrant, and the piece-of-paper-indicating-ordering-the-video was sufficient to issue a conditional future warrant.
posted by Bugbread at 7:42 AM on March 22, 2006
Nitfilter -- Pontius: ... the Fourth Amendment, which plainly says that a warrant shall not issue - issue, not activate!
"Intent" arguments aside, it is important to understand the meaning of words at the time of a document's authoring -- and also to understand what words would not be used. I don't recall seeing the term "Activate" being used in that sense in any document in American English prior to the mid-19th century. (Really, I'm hedging there, because I don't really recall reading it in anything prior ot about 1875.)
I just checked OED, and they don't even address the common modern usage of "activate" -- that is, as in "activating" something that is "inactive". E.g., a writ could be issued, but remain "inactive" until it is "activated." That's a modern usage.
And to the point of "issue", per OED, the following seems to be the relevant sub definition:
posted by lodurr at 8:06 AM on March 22, 2006
"Intent" arguments aside, it is important to understand the meaning of words at the time of a document's authoring -- and also to understand what words would not be used. I don't recall seeing the term "Activate" being used in that sense in any document in American English prior to the mid-19th century. (Really, I'm hedging there, because I don't really recall reading it in anything prior ot about 1875.)
I just checked OED, and they don't even address the common modern usage of "activate" -- that is, as in "activating" something that is "inactive". E.g., a writ could be issued, but remain "inactive" until it is "activated." That's a modern usage.
And to the point of "issue", per OED, the following seems to be the relevant sub definition:
6. To ‘come out’ or be sent forth officially or publicly; to be published or emitted. Cf. 9.Unclear, at best.
1640-4 LD. FINCH in Rushw. Hist. Coll. III. (1692) I. 13 His Majesty..did resolve..to Summon a great Council of all the Peers,..and commanded Writs to issue out accordingly. 1665 SIR T. HERBERT Trav. (1677) 257 Summons issued for the holding a Parliament of no less than the whole World. 1793 JEFFERSON Writ. (1859) IV. 63 A minister from France was hourly expected when the proclamation issued. 1795 A. HAMILTON Wks. (1886) VII. 86 Before money can legally issue from the Treasury for any purpose, there must be a law authorizing an expenditure. 1863 H. COX Instit. III. viii. 721 The Commission is revoked, and a new Commission issues. 1866 CRUMP Banking x. 227 The number of coins issuing from the mint each year varies considerably.
posted by lodurr at 8:06 AM on March 22, 2006
Relay : "The Fourth Amendment.
There's still a Fourth Amendment?"
Yes.
posted by Bugbread at 9:33 AM on March 22, 2006
There's still a Fourth Amendment?"
Yes.
posted by Bugbread at 9:33 AM on March 22, 2006
cillit bang writes "That's a really crappy misleading summary of what an anticipatory warrant is. This thread will suck because of it."
Please elaborate on why it's misleading.
bugbread writes "One day, Bob goes out and buys chemical X. The anticipatory warrant is now satisfied, and they now have the right to search his house."
What I don't understand is why this type of warrant is needed? How long does it take to get a warrant? Couldn't the LEOs just prepare the paper work assuming Bob is going to buy chemical X and when he does bring the documentation to the judge? Even in the case that was appealed it doesn't seem to make much difference whether they serve the warrant today or tommorow.
posted by Mitheral at 10:10 AM on March 22, 2006
Please elaborate on why it's misleading.
bugbread writes "One day, Bob goes out and buys chemical X. The anticipatory warrant is now satisfied, and they now have the right to search his house."
What I don't understand is why this type of warrant is needed? How long does it take to get a warrant? Couldn't the LEOs just prepare the paper work assuming Bob is going to buy chemical X and when he does bring the documentation to the judge? Even in the case that was appealed it doesn't seem to make much difference whether they serve the warrant today or tommorow.
posted by Mitheral at 10:10 AM on March 22, 2006
Great post.
What concerns me most is the reliance on law enforcement to attest that the triggering condition exists. There is plenty to show that police regularly push the envelope to get a judge to issue a warrant . . . now the judge will take their word that the triggering conditions were met? Perhaps it's moot, since falisified evidnece of the "trigger" would be probable grounds for appeal. Nonetheless, I see potential for abuse when the "proably probable cause" is, in part, determined only by those anxious to see the warrant executed.
posted by ahimsakid at 10:36 AM on March 22, 2006
What concerns me most is the reliance on law enforcement to attest that the triggering condition exists. There is plenty to show that police regularly push the envelope to get a judge to issue a warrant . . . now the judge will take their word that the triggering conditions were met? Perhaps it's moot, since falisified evidnece of the "trigger" would be probable grounds for appeal. Nonetheless, I see potential for abuse when the "proably probable cause" is, in part, determined only by those anxious to see the warrant executed.
posted by ahimsakid at 10:36 AM on March 22, 2006
Mitheral : "Please elaborate on why it's misleading."
I can't elaborate much on why it's misleading, but when I read it, I thought it meant they could get warrants that allowed themselves to search places because they suspected that if they searched, they'd find something that gave them probable cause. In reality, it means they can get warrants which become activated when certain things which constitute probable cause take place. So it did mislead me (or I mislead myself with its assistance, or whathaveyou). However, I have to say that the thread has turned out much, much better than I thought it would.
posted by Bugbread at 11:00 AM on March 22, 2006
I can't elaborate much on why it's misleading, but when I read it, I thought it meant they could get warrants that allowed themselves to search places because they suspected that if they searched, they'd find something that gave them probable cause. In reality, it means they can get warrants which become activated when certain things which constitute probable cause take place. So it did mislead me (or I mislead myself with its assistance, or whathaveyou). However, I have to say that the thread has turned out much, much better than I thought it would.
posted by Bugbread at 11:00 AM on March 22, 2006
bardic : "Very Minority Report."
Not really. My work contract specifies what will happen if I quit without providing advance notice. However, that stuff doesn't happen unless I quit without providing advance notice. That doesn't seem very Minority Report to me.
posted by Bugbread at 12:53 PM on March 22, 2006
Not really. My work contract specifies what will happen if I quit without providing advance notice. However, that stuff doesn't happen unless I quit without providing advance notice. That doesn't seem very Minority Report to me.
posted by Bugbread at 12:53 PM on March 22, 2006
What's a "constitution"?
posted by Smedleyman at 1:26 PM on March 22, 2006
posted by Smedleyman at 1:26 PM on March 22, 2006
What's with the obtuse but nonetheless pointed questions?
posted by Bugbread at 1:33 PM on March 22, 2006
posted by Bugbread at 1:33 PM on March 22, 2006
bugbread writes "I thought it meant they could get warrants that allowed themselves to search places because they suspected that if they searched, they'd find something that gave them probable cause"
OK, I can see how you might read it that way. Ya, that'd be a lot worse.
posted by Mitheral at 2:00 PM on March 22, 2006
OK, I can see how you might read it that way. Ya, that'd be a lot worse.
posted by Mitheral at 2:00 PM on March 22, 2006
What I don't understand is why this type of warrant is needed?
There are law-enforcement sting operations all the time. It's how they arrest the drug dealers in my neighborhood, for instance. On the face of it, I don't see anything wrong with the constitutionality per se of an anticipatory warrant.
Particularly this case is emphatically not the one to argue. The guy ordered contraband, and took delivery. The warrant was executed according to the triggering condition.h
Now, if this had been more like the infamous Jacobson case, in which the Supremes established modern entrapment case law, I'd be all over this decision. But it wasn't. Another issue would have been if the warrant had been executed sans triggering condition -- say, the package was left on the doorstep, or there had been some other glitch, or something more intentionally dodgy. Then we get to have a case law party and establish some new rules.
Seriously, this seems to fall within good faith guidelines. I'm not gonna prevent the cops from having tis particular tool. This isn't precrime, after all. The guy ordered the stuff before the warrant was obtained. The trickiness, perhaps, lies in the law's exclusive application to the possession of child pornography.
It appears that under this ruling, preemptive warrants can issue without existing probable cause, but merely on the supposition that probable cause will exist in the future.
Sorry, I don't see that in there, unless you're saying what I just said above. What it seems to me you just said is that they can get warrants because of suspicion of probable cause, then execute them prior to the probable cause coming into being. Is anyone else saying that's what the ruling says?
What concerns me most is the reliance on law enforcement to attest that the triggering condition exists.
I agree that this is a major concern, and ideally there would be more oversight for this type of warrant.
posted by dhartung at 2:44 PM on March 22, 2006
There are law-enforcement sting operations all the time. It's how they arrest the drug dealers in my neighborhood, for instance. On the face of it, I don't see anything wrong with the constitutionality per se of an anticipatory warrant.
Particularly this case is emphatically not the one to argue. The guy ordered contraband, and took delivery. The warrant was executed according to the triggering condition.h
Now, if this had been more like the infamous Jacobson case, in which the Supremes established modern entrapment case law, I'd be all over this decision. But it wasn't. Another issue would have been if the warrant had been executed sans triggering condition -- say, the package was left on the doorstep, or there had been some other glitch, or something more intentionally dodgy. Then we get to have a case law party and establish some new rules.
Seriously, this seems to fall within good faith guidelines. I'm not gonna prevent the cops from having tis particular tool. This isn't precrime, after all. The guy ordered the stuff before the warrant was obtained. The trickiness, perhaps, lies in the law's exclusive application to the possession of child pornography.
It appears that under this ruling, preemptive warrants can issue without existing probable cause, but merely on the supposition that probable cause will exist in the future.
Sorry, I don't see that in there, unless you're saying what I just said above. What it seems to me you just said is that they can get warrants because of suspicion of probable cause, then execute them prior to the probable cause coming into being. Is anyone else saying that's what the ruling says?
What concerns me most is the reliance on law enforcement to attest that the triggering condition exists.
I agree that this is a major concern, and ideally there would be more oversight for this type of warrant.
posted by dhartung at 2:44 PM on March 22, 2006
Because I've had a hard time following this thread (and imagine that others may have the same problem), let's see if I've got the definition of an anticipatory warrant correct: it's essentially for situations where getting a warrant as soon as probable cause is established would be troublesome? Like if contraband were being moved through a safehouse quickly in the middle of the night, and by the time you woke up a judge and got him or her to issue a warrant, the contraband would be long gone?
Then, in other words, the police would be responsible for determining when probable cause had been achieved, in terms of executing the warrant, but the case of whether the warrant was legal at the time would still be up to the judge? Because if so, anticipatory warrants aren't so much a danger to our rights and freedoms as they are a convenient (and mostly harmless) shortcut for proper law enforcement. The major issue I can see is the potential for harassment by police filing a lot of frivolous anticipatory warrants, but since that has to go through a judge anyways I'm not sure there's a big problem there.
But I throw it out to the crowd because I'm not sure I've got the correct definition of anticipatory warrants.
posted by chrominance at 5:39 PM on March 22, 2006
Then, in other words, the police would be responsible for determining when probable cause had been achieved, in terms of executing the warrant, but the case of whether the warrant was legal at the time would still be up to the judge? Because if so, anticipatory warrants aren't so much a danger to our rights and freedoms as they are a convenient (and mostly harmless) shortcut for proper law enforcement. The major issue I can see is the potential for harassment by police filing a lot of frivolous anticipatory warrants, but since that has to go through a judge anyways I'm not sure there's a big problem there.
But I throw it out to the crowd because I'm not sure I've got the correct definition of anticipatory warrants.
posted by chrominance at 5:39 PM on March 22, 2006
Chrominance,
That's basically how I interpret it. The only caveat is that not only are the police responsible for determining when probable cause is achieved, but they determine what actions will constitute probable cause, and the judge has to approve them. So, say, for example, you suspected a person was building a bomb. Buying fertilizer and chemical X count as probable cause. The person has bought fertilizer. The police issue an anticipatory warrant that says "If the person buys chemical X, probable cause will exist, and we can search the premises", which is approved by the judge. Now, the police see the guy get a package marked "Super hot preschool sex action!!". That establishes probable cause, but is NOT the condition set forth in the anticipatory warrant, so for the police to get a warrant, they have to go through their usual channels. The anticipatory warrant is not activated for any and all existence of any probable cause, but for specific conditions laid out in the anticipatory warrant.
posted by Bugbread at 9:59 PM on March 22, 2006
That's basically how I interpret it. The only caveat is that not only are the police responsible for determining when probable cause is achieved, but they determine what actions will constitute probable cause, and the judge has to approve them. So, say, for example, you suspected a person was building a bomb. Buying fertilizer and chemical X count as probable cause. The person has bought fertilizer. The police issue an anticipatory warrant that says "If the person buys chemical X, probable cause will exist, and we can search the premises", which is approved by the judge. Now, the police see the guy get a package marked "Super hot preschool sex action!!". That establishes probable cause, but is NOT the condition set forth in the anticipatory warrant, so for the police to get a warrant, they have to go through their usual channels. The anticipatory warrant is not activated for any and all existence of any probable cause, but for specific conditions laid out in the anticipatory warrant.
posted by Bugbread at 9:59 PM on March 22, 2006
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Why have a constitution at all if the leaders continually piss all over it?
posted by Talez at 2:49 AM on March 22, 2006