United States v. Grubbs

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. GRUBBS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 04–1414. Argued January 18, 2006—Decided March 21, 2006

A Magistrate Judge issued an “anticipatory” search warrant for re-

spondent Grubbs’ house based on a federal officer’s affidavit. The af-

fidavit explained that the warrant would not be executed until a par-

cel containing a videotape of child pornography—which Grubbs had

ordered from an undercover postal inspector—was received at, and

physically taken into, the residence. The affidavit also referred to

two attachments describing the residence and the items to be seized.

After the package was delivered and the search commenced, Grubbs

was given a copy of the warrant, which included the attachments but

not the supporting affidavit. When he admitted ordering the video-

tape, he was arrested, and the videotape and other items were seized.

Following his indictment for receiving child pornography, see 18

U. S. C. §2252(a)(2), Grubbs moved to suppress the seized evidence,

arguing, inter alia, that the warrant was invalid because it failed to

list the triggering condition. The District Court denied the motion,

and Grubbs pleaded guilty. The Ninth Circuit reversed, concluding

that the warrant ran afoul of the Fourth Amendment’s particularity

requirement, which, under Circuit precedent, applied to the condi-

tions precedent to an anticipatory warrant.

Held:

1. Anticipatory warrants are not categorically unconstitutional un-

der the Fourth Amendment’s provision that “no Warrants shall issue,

but upon probable cause.” Probable cause exists when “there is a fair

probability that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U. S. 213, 238. When an an-

ticipatory warrant is issued, the fact that the contraband is not pres-

ently at the place described is immaterial, so long as there is prob-

able cause to believe it will be there when the warrant is executed.

2 UNITED STATES v. GRUBBS

Syllabus

Anticipatory warrants are, therefore, no different in principle from

ordinary warrants: They require the magistrate to determine (1) that

it is now probable that (2) contraband, evidence of a crime, or a fugi-

tive will be on the described premises (3) when the warrant is exe-

cuted. Where the anticipatory warrant places a condition (other than

the mere passage of time) upon its execution, the first of these deter-

minations goes not merely to what will probably be found if the con-

dition is met, but also to the likelihood that the condition will be met,

and thus that a proper object of seizure will be on the described

premises. Here, the occurrence of the triggering condition—

successful delivery of the videotape—would plainly establish probable

cause for the search, and the affidavit established probable cause to

believe the triggering condition would be satisfied. Pp. 3–7.

2. The warrant at issue did not violate the Fourth Amendment’s

particularity requirement. The Amendment specifies only two mat-

ters that the warrant must “particularly describ[e]”: “the place to be

searched” and “the persons or things to be seized.” That language is

decisive here; the particularity requirement does not include the con-

ditions precedent to execution of the warrant. Cf. Dalia v. United

States, 441 U. S. 238, 255, 257. Respondent’s two policy rationales—

that setting forth the triggering condition in the warrant itself is nec-

essary (1) to delineate the limits of the executing officer’s power and

(2) to allow the individual whose property is searched or seized to po-

lice the officer’s conduct—find no basis in either the Fourth Amend-

ment or Federal Rule of Criminal Procedure 41. Pp. 7–9.

377 F. 3d 1072 and 389 F. 3d 1306, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined, and in which

STEVENS, SOUTER, and GINSBURG, J., joined as to Parts I and II.

SOUTER, J., filed an opinion concurring in part and concurring in the

judgment, in which STEVENS and GINSBURG, JJ., joined. ALITO, J., took

no part in the consideration or decision of the case.

Cite as: 547 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of thfe United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1414

_________________

UNITED STATES, PETITIONER v. JEFFREY GRUBBS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 21, 2006]

JUSTICE SCALIA delivered the opinion of the Court.

Federal law enforcement officers obtained a search

warrant for respondent’s house on the basis of an affidavit

explaining that the warrant would be executed only after a

controlled delivery of contraband to that location. We

address two challenges to the constitutionality of this

anticipatory warrant.

I

Respondent Jeffrey Grubbs purchased a videotape

containing child pornography from a Web site operated by

an undercover postal inspector. Officers from the Postal

Inspection Service arranged a controlled delivery of a

package containing the videotape to Grubbs’ residence. A

postal inspector submitted a search warrant application to

a Magistrate Judge for the Eastern District of California,

accompanied by an affidavit describing the proposed op-

eration in detail. The affidavit stated:

“Execution of this search warrant will not occur

unless and until the parcel has been received by a

person(s) and has been physically taken into the resi-

dence . . . . At that time, and not before, this search

warrant will be executed by me and other United

2 UNITED STATES v. GRUBBS

Opinion of the Court

States Postal inspectors, with appropriate assistance

from other law enforcement officers in accordance

with this warrant’s command.” App. to Pet. for Cert.

72a.

In addition to describing this triggering condition, the

affidavit referred to two attachments, which described

Grubbs’ residence and the items officers would seize.

These attachments, but not the body of the affidavit, were

incorporated into the requested warrant. The affidavit

concluded:

“Based upon the foregoing facts, I respectfully submit

there exists probable cause to believe that the items

set forth in Attachment B to this affidavit and the

search warrant, will be found [at Grubbs’ residence],

which residence is further described at Attachment

A.” Ibid.

The Magistrate Judge issued the warrant as requested.

Two days later, an undercover postal inspector delivered

the package. Grubbs’ wife signed for it and took the un-

opened package inside. The inspectors detained Grubbs as

he left his home a few minutes later, then entered the

house and commenced the search. Roughly 30 minutes

into the search, Grubbs was provided with a copy of the

warrant, which included both attachments but not the

supporting affidavit that explained when the warrant

would be executed. Grubbs consented to interrogation by

the postal inspectors and admitted ordering the videotape.

He was placed under arrest, and various items were

seized, including the videotape.

A grand jury for the Eastern District of California in-

dicted Grubbs on one count of receiving a visual depiction

of a minor engaged in sexually explicit conduct. See 18

U. S. C. §2252(a)(2). He moved to suppress the evidence

seized during the search of his residence, arguing as rele-

vant here that the warrant was invalid because it failed to

Cite as: 547 U. S. ____ (2006) 3

Opinion of the Court

list the triggering condition. After an evidentiary hearing,

the District Court denied the motion. 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.

377 F. 3d 1072, amended, 389 F. 3d 1306 (2004). Relying

on Circuit precedent, it held that “the particularity re-

quirement of the Fourth Amendment applies with full

force to the conditions precedent to an anticipatory search

warrant.” 377 F. 3d, at 1077–1078 (citing United States v.

Hotal, 143 F. 3d 1223, 1226 (CA9 1998)). An anticipatory

warrant defective for that reason may be “cur[ed]” if the

conditions precedent are set forth in an affidavit that is

incorporated in the warrant and “presented to the person

whose property is being searched.” 377 F. 3d, at 1079.

Because the postal inspectors “failed to present the affida-

vit—the only document in which the triggering conditions

were listed”—to Grubbs or his wife, the “warrant was . . .

inoperative, and the search was illegal.” Ibid. We granted

certiorari. 545 U. S. ___ (2005).

II

Before turning to the Ninth Circuit’s conclusion that the

warrant at issue here ran afoul of the Fourth Amend-

ment’s particularity requirement, we address the antece-

dent question whether anticipatory search warrants are

categorically unconstitutional.1 An anticipatory warrant

is “a warrant based upon an affidavit showing probable

——————

1 This issue is “predicate to an intelligent resolution of the question

presented.” Ohio v. Robinette, 519 U. S. 33, 38 (1996) (internal quotation

marks omitted). It makes little sense to address what the Fourth

Amendment requires of anticipatory search warrants if it does not

allow them at all. Cf. Wilkinson v. Austin, 545 U. S. ___, ___ (2005) (slip

op., at 9) (addressing whether inmates had a liberty interest in avoiding

assignment to a “Supermax” prison, despite the State’s concession that

they did, because “[w]e need reach the question of what process is due only

if the inmates establish a constitutionally protected liberty interest”).

4 UNITED STATES v. GRUBBS

Opinion of the Court

cause that at some future time (but not presently) certain

evidence of crime will be located at a specified place.” 2 W.

LaFave, Search and Seizure §3.7(c), p. 398 (4th ed. 2004).

Most anticipatory warrants subject their execution to

some condition precedent other than the mere passage of

time—a so-called “triggering condition.” The affidavit at

issue here, for instance, explained that “[e]xecution of

th[e] search warrant will not occur unless and until the

parcel [containing child pornography] has been received by

a person(s) and has been physically taken into the resi-

dence.” App. to Pet. for Cert. 72a. If the government were

to execute an anticipatory warrant before the triggering

condition occurred, there would be no reason to believe the

item described in the warrant could be found at the

searched location; by definition, the triggering condition

which establishes probable cause has not yet been satis-

fied when the warrant is issued. Grubbs argues that for

this reason anticipatory warrants contravene the Fourth

Amendment’s provision that “no Warrants shall issue, but

upon probable cause.”

We reject this view, as has every Court of Appeals to

confront the issue, see, e.g., United States v. Loy, 191 F. 3d

360, 364 (CA3 1999) (collecting cases). Probable cause

exists when “there is a fair probability that contraband or

evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U. S. 213, 238 (1983). Because the

probable-cause requirement looks to whether evidence will

be found when the search is conducted, all warrants are, in

a sense, “anticipatory.” In the typical case where the

police seek permission to search a house for an item they

believe is already located there, the magistrate’s determi-

nation that there is probable cause for the search amounts

to a prediction that the item will still be there when the

warrant is executed. See People v. Glen, 30 N. Y. 2d 252,

258, 282 N. E. 2d 614, 617 (1972) (“[P]resent possession is

Cite as: 547 U. S. ____ (2006) 5

Opinion of the Court

only probative of the likelihood of future possession.”).2

The anticipatory nature of warrants is even clearer in the

context of electronic surveillance. See, e.g., Katz v. United

States, 389 U. S. 347 (1967). When police request approval

to tap a telephone line, they do so based on the probability

that, during the course of the surveillance, the subject will

use the phone to engage in crime-related conversations.

The relevant federal provision requires a judge authoriz-

ing “interception of wire, oral, or electronic communica-

tions” to determine that “there is probable cause for belief

that particular communications concerning [one of various

listed offenses] will be obtained through such intercep-

tion.” 18 U. S. C. §2518(3)(b) (emphasis added); see also

United States v. Ricciardelli, 998 F. 2d 8, 11, n. 3 (CA1

1993) (“[T]he magistrate issues the warrant on the basis of

a substantial probability that crime-related conversations

will ensue.”). Thus, when an anticipatory warrant is

issued, “the fact that the contraband is not presently

located at the place described in the warrant is immate-

rial, so long as there is probable cause to believe that it

will be there when the search warrant is executed.”

United States v. Garcia, 882 F. 2d 699, 702 (CA2 1989)

(quoting United States v. Lowe, 575 F. 2d 1193, 1194 (CA6

1978); internal quotation marks omitted).

——————

2 For this reason, probable cause may cease to exist after a warrant is

issued. The police may learn, for instance, that contraband is no longer

located at the place to be searched. See, e.g., United States v. Bowling,

900 F. 2d 926, 932 (CA6 1990) (recognizing that a fruitless consent

search could “dissipat[e] the probable cause that justified a warrant”).

Or the probable-cause showing may have grown “stale” in view of the

time that has passed since the warrant was issued. See United States

v. Wagner, 989 F. 2d 69, 75 (CA2 1993) (“[T]he facts in an affidavit

supporting a search warrant must be sufficiently close in time to the

issuance of the warrant and the subsequent search conducted so that

probable cause can be said to exist as of the time of the search and not

simply as of some time in the past.”); see also Sgro v. United States, 287

U. S. 206, 210–211 (1932).

6 UNITED STATES v. GRUBBS

Opinion of the Court

Anticipatory warrants are, therefore, no different in

principle from ordinary warrants. They require the mag-

istrate 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.

It should be noted, however, that where the anticipatory

warrant places a condition (other than the mere passage of

time) upon its execution, the first of these determinations

goes not merely to what will probably be found if the

condition is met. (If that were the extent of the probability

determination, an anticipatory warrant could be issued for

every house in the country, authorizing search and seizure

if contraband should be delivered—though for any single

location there is no likelihood that contraband will be

delivered.) Rather, the probability determination for a

conditioned anticipatory warrant looks also to the likeli-

hood that the condition will occur, and thus that a proper

object of seizure will be on the described premises. In

other words, for 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 contra-

band or evidence of a crime will be found in a particular

place,” Gates, supra, at 238, 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. See Garcia, supra, at 703.

In this case, the occurrence of the triggering condition—

successful delivery of the videotape to Grubbs’ residence—

would plainly establish probable cause for the search. In

addition, the affidavit established probable cause to be-

lieve the triggering condition would be satisfied. Although

it is possible that Grubbs could have refused delivery of

the videotape he had ordered, that was unlikely. The

Cite as: 547 U. S. ____ (2006) 7

Opinion of the Court

Magistrate therefore “had a ‘substantial basis for . . .

conclud[ing]’ that probable cause existed.” Gates, 462

U. S., at 238–239 (quoting Jones v. United States, 362 U. S.

257, 271 (1960)).

III

The Ninth Circuit invalidated the anticipatory search

warrant at issue here because the warrant failed to specify

the triggering condition. The Fourth Amendment’s par-

ticularity requirement, it held, “applies with full force to

the conditions precedent to an anticipatory search war-

rant.” 377 F. 3d, at 1077–1078.

The Fourth Amendment, however, does not set forth

some general “particularity requirement.” It specifies only

two matters that must be “particularly describ[ed]” in the

warrant: “the place to be searched” and “the persons or

things to be seized.” We have previously rejected efforts to

expand the scope of this provision to embrace unenumer-

ated matters. In Dalia v. United States, 441 U. S. 238

(1979), we considered an order authorizing the intercep-

tion of oral communications by means of a “bug” installed

by the police in the petitioner’s office. The petitioner

argued that, if a covert entry is necessary to install such a

listening device, the authorizing order must “explicitly set

forth its approval of such entries before the fact.” Id., at

255. This argument fell before the “ ‘precise and clear’ ”

words of the Fourth Amendment: “Nothing in the lan-

guage of the Constitution or in this Court’s decisions

interpreting that language suggests that, in addition to

the [requirements set forth in the text], search warrants

also must include a specification of the precise manner in

which they are to be executed.” Id., at 255 (quoting Stan-

ford v. Texas, 379 U. S. 476, 481 (1965)), 257. The language

of the Fourth Amendment is likewise decisive here; its

particularity requirement does not include the conditions

precedent to execution of the warrant.

8 UNITED STATES v. GRUBBS

Opinion of the Court

Respondent, drawing upon the Ninth Circuit’s analysis

below, relies primarily on two related policy rationales.

First, he argues, setting forth the triggering condition in

the warrant itself is necessary “to delineate the limits of

the executing officer’s power.” Brief for Respondent 20.

This is an application, respondent asserts, of the following

principle: “[I]f there is a precondition to the valid exercise

of executive power, that precondition must be particularly

identified on the face of the warrant.” Id., at 23. That

principle is not to be found in the Constitution. The

Fourth Amendment does not require that the warrant set

forth the magistrate’s basis for finding probable cause,

even though probable cause is the quintessential “precon-

dition to the valid exercise of executive power.” Much less

does it require description of a triggering condition.

Second, respondent argues that listing the triggering

condition in the warrant is necessary to “ ‘assur[e] the

individual whose property is searched or seized of the

lawful authority of the executing officer, his need to

search, and the limits of his power to search.’ ” Id., at 19

(quoting United States v. Chadwick, 433 U. S. 1, 9 (1977)).

The Ninth Circuit went even further, asserting that if the

property owner were not informed of the triggering condi-

tion, he “would ‘stand [no] real chance of policing the

officers’ conduct.’ ” 377 F. 3d, at 1079 (quoting Ramirez v.

Butte-Silver Bow County, 298 F. 3d 1022, 1027 (CA9

2002)). This argument assumes that the executing officer

must present the property owner with a copy of the war-

rant before conducting his search. See 377 F. 3d, at 1079,

n. 9. In fact, however, neither the Fourth Amendment nor

Rule 41 of the Federal Rules of Criminal Procedure im-

poses such a requirement. See Groh v. Ramirez, 540 U. S.

551, 562, n. 5 (2004). “The absence of a constitutional

requirement that the warrant be exhibited at the outset of

the search, or indeed until the search has ended, is . . .

evidence that the requirement of particular description

Cite as: 547 U. S. ____ (2006) 9

Opinion of the Court

does not protect an interest in monitoring searches.”

United States v. Stefonek, 179 F. 3d 1030, 1034 (CA7 1999)

(citations omitted). The Constitution protects property

owners not by giving them license to engage the police in a

debate over the basis for the warrant, but by interposing,

ex ante, the “deliberate, impartial judgment of a judicial

officer . . . between the citizen and the police.” Wong Sun

v. United States, 371 U. S. 471, 481–482 (1963), and by

providing, ex post, a right to suppress evidence improperly

obtained and a cause of action for damages.

* * *

Because the Fourth Amendment does not require that

the triggering condition for an anticipatory search warrant

be set forth in the warrant itself, the Court of Appeals

erred in invalidating the warrant at issue here. The

judgment of the Court of Appeals is reversed, and the case

is remanded for further proceedings consistent with this

opinion.

It is so ordered.

JUSTICE ALITO took no part in the consideration or

decision of this case.

Cite as: 547 U. S. ____ (2006) 1

Opinion of SOUTER, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1414

_________________

UNITED STATES, PETITIONER v. JEFFREY GRUBBS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 21, 2006]

JUSTICE SOUTER, with whom JUSTICE STEVENS and

JUSTICE GINSBURG join, concurring in part and concurring

in the judgment.

I agree with the Court that anticipatory warrants are

constitutional for the reasons stated in Part II of the

Court’s opinion, and I join in the disposition of this case.

But I would qualify some points made in Part III.

The Court notes that a warrant’s failure to specify the

place to be searched and the objects sought violates an

express textual requirement of the Fourth Amendment,

whereas the text says nothing about a condition placed by

the issuing magistrate on the authorization to search

(here, delivery of the package of contraband). That textual

difference is, however, no authority for neglecting to spec-

ify the point or contingency intended by the magistrate to

trigger authorization, and the government should beware

of banking on the terms of a warrant without such specifi-

cation. The notation of a starting date was an established

feature even of the objectionable 18th-century writs of

assistance, see, e.g., Massachusetts Writs of Assistance

Bill, 1762, reprinted in M. Smith, The Writs of Assistance

Case 567–568 (1978); Writ of Assistance (English) of

George III, 1761, reprinted in id., at 524–527. And it is

fair to say that the very word “warrant” in the Fourth

Amendment means a statement of authority that sets out

the time at which (or, in the case of anticipatory warrants,

2 UNITED STATES v. GRUBBS

Opinion of SOUTER, J.

the condition on which) the authorization begins.*

An issuing magistrate’s failure to mention that condi-

tion can lead to several untoward consequences with

constitutional significance. To begin with, a warrant that

fails to tell the truth about what a magistrate authorized

cannot inform the police officer’s responsibility to respect

the limits of authorization, see Groh v. Ramirez, 540 U. S.

551, 560–563, 561, and n. 4 (2004), a failing assuming real

significance when the warrant is not executed by the

official who applied for it and happens to know the un-

stated condition. The peril is that if an officer simply

takes such a warrant on its face and makes the ostensibly

authorized search before the unstated condition has been

met, the search will be held unreasonable. It is true that

we have declined to apply the exclusionary rule when a

police officer reasonably relies on the product of a magis-

trate’s faulty judgment or sloppy practice, see Massachu-

setts v. Sheppard, 468 U. S. 981, 987–991 (1984). But when

a government officer obtains what the magistrate says is

an anticipatory warrant, he must know or should realize

when it omits the condition on which authorization de-

pends, and it is hard to see why the government should

not be held to the condition despite the unconditional face

of the warrant. Cf. Groh v. Ramirez, supra, at 554–555,

563, and n. 6 (declaring unconstitutional a search con-

ducted pursuant to a warrant failing to specify the items

the government asked the magistrate permission to seize

in part because “officers leading a search team must ‘make

sure that they have a proper warrant that in fact author-

izes the search and seizure they are about to conduct’ ”

(brackets omitted)).

Nor does an incomplete anticipatory warrant address an

——————

* Federal Rule of Criminal Procedure 41(e)(2)(A) in fact requires that

an issued warrant command the executing officer to “execute the

warrant within a specified time no longer than 10 days.”

Cite as: 547 U. S. ____ (2006) 3

Opinion of SOUTER, J.

owner’s interest in an accurate statement of the govern-

ment’s authority to search property. To be sure, the ex-

tent of that interest is yet to be settled; in Groh v. Ramirez,

supra, the Court was careful to note that the right of an

owner to demand to see a copy of the warrant before mak-

ing way for the police had not been determined, id., at 562,

n. 5, and it remains undetermined today. But regardless

of any right on the owner’s part, showing an accurate

warrant reliably “assures the individual whose property is

searched or seized of the lawful authority of the executing

officer, his need to search, and the limits of his power to

search.” United States v. Chadwick, 433 U. S. 1, 9 (1977),

quoted in Groh v. Ramirez, supra, at 561. And if a later

case holds that the homeowner has a right to inspect the

warrant on request, a statement of the condition of au-

thorization would give the owner a right to correct any

misapprehension on the police’s part that the condition

had been met when in fact it had not been. If the police

were then to enter anyway without a reasonable (albeit

incorrect) justification, the search would certainly be open

to serious challenge as unreasonable within the meaning

of the Fourth Amendment.