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4th Amendment Glimmer of Hope #2

SCOTUSblog previews today’s Supreme Court arguments in United States v. Grubbs.
While this is a pornography case, it has a lot of potential connection to the drug war.
The case involves Anticipatory Search Warrants. These are warrants that are issued in advance to be triggered by a certain event, such as after the package pornography is delivered, or after the informant goes into your house to sell you drugs. Then they search your house and find what they sent there and arrest you for possessing it. These anticipatory warrants are used a lot in drug stings.
In Grubbs, there was a technicality issue in the warrant (the triggering event had been left off the actual warrant). The government says that doesn’t matter because the 4th Amendment only requires the place to be searched and the persons or things to be seized.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Interestingly, the defense will be taking that on and actually attempting to get the Supreme Court to rule that anticipatory warrants themselves are unconstitutional. Here’s the idea:

In response, Mr. Grubbs seeks not only to refute the government’s arguments, but also to challenge the constitutionality of anticipatory warrants generally. He relies on the text of the Fourth Amendment, which requires that “no Warrants shall issue, but upon probable cause.” This language, Mr. Grubbs contends, means that the probable cause must exist at the time of issuance; under an anticipatory warrant, there is only probable cause once the future contingency is satisfied. Further, the conferral of discretion on executive officers to determine when probable cause exists at a future time is inconsistent with the constraining purpose of the Fourth Amendment. Mr. Grubbs denies that there is any compelling law enforcement need for anticipatory warrants given the other options available to police to seek warrants quickly.

The language seems clear to me… “No warrants shall issue, but upon probable cause.” How could a warrant be issued prior to probable cause existing?
Should be interesting.

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