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The U.S. Supreme Court on March 21 and March 22 rendered the following decisions: The justices ruled unanimously that anticipatory warrants do not need to set out the triggering condition that permits the warrant to be executed to be valid under the Fourth Amendment’s provision that “no Warrants shall issue, but upon probable cause.” U.S. v. Grubbs, No. 04-1414. 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 California magistrate judge, accompanied by an affidavit describing the proposed operation 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 residence.” The judge issued the warrant and, two days later, an undercover postal inspector delivered the package. Grubbs’ wife signed for it and took the package inside. The inspectors entered Grubbs’ home and began the search. Grubbs was provided with a copy of the warrant, which, however, did not include the supporting affidavit explaining when the warrant would be executed. Grubbs was arrested, and various items, including the videotape, were seized. Following his indictment for receiving a visual depiction of a minor engaged in sexually explicit conduct, Grubbs moved to suppress the evidence seized during the search, arguing that the warrant was invalid because it failed to list the triggering condition. His motion was denied. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress. The 9th U.S. Circuit Court of Appeals reversed, holding that “the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant.” Because the postal inspectors failed to present the affidavit to Grubbs or his wife, the “warrant was . . . inoperative, and the search was illegal.” The justices reversed. Writing on behalf of the court, Justice Antonin Scalia said that when an anticipatory warrant is issued, the fact that the evidence of a crime is not at the place described is immaterial, so long as there is probable cause to believe it will be there when the warrant is executed. Anticipatory warrants are, thus, no different in principle from ordinary warrants: They require the magistrate to determine if it is probable that evidence of a crime will be on the premises when the warrant is executed. Here, the occurrence of the triggering condition-successful delivery of the videotape-plainly establishes probable cause for the search. The warrant didn’t violate the Fourth Amendment’s particularity requirement. The amendment specifies only two matters that the warrant must describe: “the place to be searched,” and “the persons or things to be seized.” The particularity requirement does not include the conditions precedent to execution of the warrant. Grubbs’ two policy rationales-that setting forth the triggering condition in the warrant itself is necessary, first, to delineate the limits of the executing officer’s power and, second, to allow the individual whose property is searched or seized to police the officer’s conduct-find no basis in either the Fourth Amendment or the Federal Rules of Criminal Procedure. See Page 1 for a story on the justices’ unanimous ruling that the federal Securities Litigation Uniform Standards Act pre-empts state law class action claims that investors were induced to hold on to their stocks through misrepresentation. Merrill Lynch v. Davit, No. 04-1371. See Page 18 for a story on the justices’ 5-3 ruling that it is unconstitutional for police to search a home, without a warrant, if two occupants are present at the time and one consents to the search but the other objects. Georgia v. Randolph, No. 04-1067.

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