South-Western Legal Studies in Business

Anticipatory Warrants Allowed by Fourth Amendment

Supreme Court held that anticipatory warrants may be issued so long as the judge or magistrate determined that it is probable that contraband, evidence of a crime, or a fugitive will be on the described premises when the warrant is executed.

Topic Criminal Law
Key Words

Search and Seizure; Anticipatory Search Warrants; Probable Cause

C A S E   S U M M A R Y

An undercover postal inspector ran a Web site selling videotapes of child pornography. Grubbs bought a tape. The inspector then submitted a search warrant request to a magistrate, accompanied by an affidavit describing the proposed operation in detail. The execution of the search warrant would not occur until the parcel had been delivered to Grubbs. Then law enforcement officers would move in, as allowed by the warrant. The anticipatory warrant was issued. Two days later, the parcel containing the tape was delivered and signed for. Grubbs was arrested. He admitted ordering the video. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress the evidence, as it was obtained by use of an anticipatory warrant, which he claimed violated the Fourth Amendment. The Ninth Circuit reversed, holding the warrant to be defective and so the search illegal. The government appealed.


Reversed and remanded. An anticipatory warrant is one based upon an affidavit showing probable cause that at some future time certain evidence of a crime will be located at a specific place. Most subject their execution to some condition precedent other than the mere passage of time—a so-called “triggering condition.” Such warrants do not violate the Fourth Amendment's provision that “no Warrants shall issue, but upon probable cause.” Probable cause to search exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place. The fact that the contraband is not presently located at the place where described at the warrant is immaterial, so long as there is probable cause to believe that it will be there when the warrant is executed.


U.S. v. Grubbs, 126 S.Ct. 1494 (Sup. Ct. , 2006)

Back to Criminal Law Listings

©1997-2006  SW Legal Studies in Business. All Rights Reserved.