United States v. Grubbs – Oral Argument – January 18, 2006

Media for United States v. Grubbs

Audio Transcription for Opinion Announcement – March 21, 2006 in United States v. Grubbs

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John G. Roberts, Jr.:

We’ll hear argument first today in No. 04-1414, United States v. Grubbs.

General Dreeben.

Michael R. Dreeben:

Mr. Chief Justice, and may it please the Court–

The postal inspectors in this case applied for a warrant to search respondent’s property.

The warrant that they obtained particularly described the place to be searched and the things to be seized.

It was issued based on an affidavit that informed the magistrate judge that a videotape containing child pornography that respondent had ordered through the mail and had paid for in cash was going to be delivered to respondent’s house and that the warrant would not be executed until the delivery had taken place.

The Ninth Circuit held that the execution of this warrant, which occurred after the delivery that the postal inspectors represented would occur had in fact happened, violated the Particularity Clause of the Fourth Amendment.

The Ninth Circuit’s opinion is wrong because the Particularity Clause of the Fourth Amendment addresses two specific topics, the place to be searched and the persons or things to be seized.

It does not address the time of execution of a warrant, which the Ninth Circuit impermissibly read into the Fourth Amendment in violation of its text.

The Ninth Circuit held, therefore, that because the warrant was not in accordance with the Particularity Clause, this search was equivalent to a warrantless search and that all fruits of the search had to be suppressed.

David H. Souter:

I think, Mr. Dreeben, at the end of the day, I agree with you on the particularity argument, but do you take the… does the Government take the position that the… that the… that a valid warrant need not contain an indication of the time within which it may be served, executed?

Michael R. Dreeben:

That’s right, Justice Souter.

In the Government’s view, the Warrant Clause specifically addresses those things that need to be on the face of the warrant.

David H. Souter:

As far as–

Anthony M. Kennedy:

What would prevent the issuance of just a blanket warrant?

We have a warrant for this… for this premises to be searched.

Michael R. Dreeben:

What would prevent the valid execution of a warrant that had no time limits whatsoever would be the requirement that a warrant must be supported by probable cause.

And if agents executed a warrant at a time at which there was no probable cause, for example, because they executed it before the delivery had taken place or they executed it after a time at which probable cause had become stale, the search would be unreasonable and the fruits of the search would probably have to be suppressed.

Antonin Scalia:

I suppose that a warrant like a… like a contract has a… a reasonable life.

Don’t you think a warrant expires if it does not have a concluding date?

You think it goes on forever and ever and ever?

Don’t you think a warrant just lasts a reasonable time?

Michael R. Dreeben:

I think it absolutely just lasts a reasonable time, Justice Scalia, and the reason why there is very little law and very little litigation on this is that since the 1917 statute that Congress originally wrote to provide for the issuance of Federal search warrants, it’s provided for a 10-day execution period, and that 10-day limit has been contained and continued in the Federal Rules of Criminal Procedure.

So in the ordinary–

John G. Roberts, Jr.:

Mr. Dreeben, I understood you to say a short while ago that if it were executed before the triggering event, it would be invalid because there was no probable cause.

Michael R. Dreeben:

–Well, I… I don’t want to say that there’s no probable cause for the warrant.

John G. Roberts, Jr.:

No, you don’t because then the warrant shouldn’t have issued.

Michael R. Dreeben:

No.

There… there is probable cause that the magistrate has to believe that the videotape, which was one of the items to be seized, would be found at the premises at the time that the search was to be executed, which was represented in the affidavit to be after the delivery takes place.

If, in fact, the warrant is executed at a time before the delivery takes place, then the warrant has failed to conform to the probable cause that supported it and the search would be unreasonable.

Antonin Scalia:

Even… even if the warrant did not specifically say that it was an anticipatory warrant and that… and that you can only execute it after the delivery?

Michael R. Dreeben:

That’s right, Justice Scalia, because there is an independent requirement that probable cause must exist at the time of the execution of the warrant.

Officers are–

Antonin Scalia:

But I thought that’s supposed to be a… a magistrate’s determination.

Michael R. Dreeben:

–There are two separate things that are going on.

One is what the magistrate must do at the time that he issues the warrant.

The magistrate must find that there is probable cause to believe that offense… an offense has been committed, is being committed, or is about to be committed, and that the items that the warrant is going to request to be seized will be present at the location at the time of execution.

And the magistrate in this case was easily able to make those determinations based on the warrant affidavit that was submitted to him.

But there is an additional requirement of reasonableness, that officers may not execute a warrant, even if it was validly issued, if they become aware of facts that would tell a reasonable officer–

Anthony M. Kennedy:

If they become aware, but the… it’s a big leap from that to say that they must make their own determination of probable cause.

Michael R. Dreeben:

–Well, I… I think, Justice Kennedy, the easiest example to… to see why this–

Anthony M. Kennedy:

You… you indicated a warrant can’t be served unless they determine there’s probable cause, but that’s for the magistrate to do, as Justice Scalia–

Michael R. Dreeben:

–I… what I… I’m making a separate point here, which is that officers have a continuing obligation to act reasonably in the execution of a warrant, and of course, they fulfill that in a variety of ways.

They have to be reasonable in identifying the property that’s… that’s specified in the warrant and that they go to search.

They have to be reasonable in conducting the search of places within that property to see that they’re looking for the things that are specified in the warrant and not going on a fishing expedition for things that are not.

They have to be reasonable in deciding whether they decide to dispense with knock and announce, and they also have to be reasonable in deciding that the basis for probable cause that they used to support the issuance of the warrant has not become so stale that a reasonable officer would know that that warrant should not be executed.

John Paul Stevens:

Well, does that mean that the executing officer must be the same officer who got the warrant?

Michael R. Dreeben:

No, it certainly doesn’t, Justice Stevens.

John Paul Stevens:

I don’t know why he’s going to give a warrant to his… some just call in a police officer and say I want you to execute this warrant.

He doesn’t know anything about the probable cause.

He just says he’s mandated to carry out the warrant.

Michael R. Dreeben:

Well, I… I think in the ordinary instance, it would be reasonable for the team of executing officers to be responsible for the inquiry that I’m talking about and any individual officer–

Anthony M. Kennedy:

–Well, there’s no… there’s no authority for that.

I… I thought warrants were issued to police officers all the time without knowing the… the precise reason.

It’s to search the house to try to find X, and the warrant speaks for itself.

A judge has made that determination.

Michael R. Dreeben:

–Well, the warrant is obtained based on an affidavit by–

Anthony M. Kennedy:

I mean, if you want us to write the opinion with this qualification in it, it seems to me that you’re making a big change in the way search warrants are used.

Michael R. Dreeben:

–Oh, I don’t think it’s a big change at all, Justice Kennedy, and I… I think what I’m trying to make clear here is that there’s an ongoing obligation of reasonableness.

Certainly the Court does not have to get into that in this case to decide it–

David H. Souter:

–But… but, Mr. Dreeben, there’s an ongoing obligation of reasonableness in the manner of which the… in… in the manner in which the search is carried out.

But unless every officer who… who acts under the authority of the warrant is aware of the probable cause evidence and can make a judgment when that evidence either is stale or, in this case, has not yet ripened, then in fact there is no way for an officer to make that kind of what you’re calling the reasonableness judgment in the execution of the warrant.

He simply doesn’t have the factual background for it, and that’s where the timing… we’ll call it… the timing clause comes in because at least an officer who may not know the probable cause behind it all… at least an officer who has a warrant that says, you may search between times X and Y, or a warrant that says, upon the occurrence of event X and time Y, has a… a rough and sound idea of when he can act.

But if that’s not in the warrant, the officer cannot make that judgment.

He doesn’t know the probable cause necessarily and he doesn’t know the time.

Ruth Bader Ginsburg:

The affidavit… wasn’t the affidavit available to the executing officer?

Michael R. Dreeben:

–Well, in this case, Justice Ginsburg, the… the affidavit was on the scene.

The affiant who secured the warrant was the lead agent who was in charge of the search that was carried out.

The search team had been briefed on the probable cause and the… the contents of the affidavit and the… the items that were to be searched for and when the search was to take place.

All of those things were true.

The district court also found that the affidavit, which does contain the triggering condition in two different places, was incorporated into the warrant.

The search warrant itself refers to the attached affidavit.

So the documents–

David H. Souter:

It… it was… I take it it was, in fact, not attached but it was somewhere on the premises.

Michael R. Dreeben:

–It was not… it was not physically attached.

It was in the possession–

David H. Souter:

So an officer who picked up the warrant would not be able to tell necessarily.

If he said, hey, has somebody got the affidavit, they could have brought it forward and he could have found out.

But if… if somebody didn’t know where the affidavit was, he wouldn’t have any way of knowing.

Michael R. Dreeben:

–Well, in the abstract, I suppose that that’s right, but in… in the concrete circumstances of this case… and I think it’s consistent with what I was trying to explain is reasonable search warrant execution… all of the search team was fully familiar with the process that was going on.

This… this was a controlled delivery in which postal inspectors were arranging themselves to make a delivery to the premises of the videotape in question.

Everyone on the search warrant team knew that until that item had been received and taken inside the house, there would be no warrant execution.

And in fact–

John G. Roberts, Jr.:

Well, but the facts of the triggering event are not always going to be so clean, and in many cases they’re going to require an exercise of judgment by the officer.

I mean, if the triggering event is a, you know, delivery of a bale of marijuana or something and they see a big box coming in, they’re going to have say, well, is that what they’re talking about or is… you know, is that it.

And the point is under the Fourth Amendment that those types of judgments are supposed to be made by the magistrate and not by the officers on the scene.

Michael R. Dreeben:

–Well, I don’t think that is the point of the Fourth Amendment.

I think what the point of the Fourth Amendment is is that the magistrate judge makes a determination whether the facts that are submitted to him rise to the level of probable cause.

And then the magistrate writes a warrant that’s consistent with what the Fourth Amendment says in terms the Warrant Clause requires.

Then the police officers have to be reasonable in executing it.

Michael R. Dreeben:

That was really my only point at the outset of the colloquy that I had with Justice Kennedy and with Justice Souter.

And the classic example that I think shows that certainly officers may use discretion in what they do in determining whether it’s certain types of triggering conditions are met are wiretaps because wiretaps are issued on the basis that there is probable cause to believe that criminal conversations will occur in the future.

The officers then have the responsibility to conduct appropriate electronic surveillance that acquires the criminal conversations but not other conversations that are not within the scope of the probable cause that they’ve obtained.

David H. Souter:

Yes, but doesn’t that simply… isn’t the analogy there that when a… when a search warrant says you may… you may pick up implements of drug traffic, all it covers is drug traffic.

It doesn’t cover coffee, tea, and… and milk.

In… in the case of the electronic surveillance, they’re supposed to record criminal conversations and… but not others.

Michael R. Dreeben:

Well, the point, Justice Souter, is that they have to make a judgment that criminal conversations are what is going to be intercepted.

David H. Souter:

But those… those are judgments about facts that they are finding.

They are not judgments about probable cause or the moment at which the warrant becomes valid.

Michael R. Dreeben:

Well, they’re… they’re not judgments here about probable cause either because the magistrate has–

David H. Souter:

Well, it is.

The… the moment… the triggering event is the event that determines that the probable cause determination is, in fact, true now.

Michael R. Dreeben:

–Well, that’s a separate question, and I think the magistrate’s question is, is there probable cause?

He doesn’t have to determine that the probable cause is true.

David H. Souter:

And his judgment, though, is there will be probable cause when the triggering event occurs.

Michael R. Dreeben:

That’s right.

David H. Souter:

And so the triggering–

Michael R. Dreeben:

No.

I actually, Justice Souter–

David H. Souter:

–the triggering event has a probable cause implication, which the selection of objects to be seized does not have.

Michael R. Dreeben:

–I… I have to say that I disagree fundamentally with the suggestion that he’s saying there will be probable cause when the triggering event occurs.

He’s saying, based on the facts that are submitted to me now, the probabilities are such that evidence of this crime will be on the property when the warrant is executed.

David H. Souter:

Well, he’s saying two things.

There is probable cause to believe that what we’re calling the triggering event will occur, and there is probable… and when that triggering event occurs, there will be probable cause to believe that evidence of a crime may be found and seized at such and such a place.

There are two determinations.

Michael R. Dreeben:

Well, I… I don’t think that there’s any reason linguistically to prefer your formulation, Justice Souter, to the formulation that says there’s probable cause to believe now that when the warrant is executed, in accordance with the triggering condition’s occurrence, the property will be found.

Anthony M. Kennedy:

Of course, that’s not what the… what the warrant says.

The warrant says I’m satisfied that the person or the property so described is now concealed on the premises.

Michael R. Dreeben:

Well, Justice Kennedy, I think the warrant should be read as a whole and not, as this Court has indicated in many cases, a technical sense.

This search warrant, which is at page 47a of the petition appendix, specifically refers to the attached affidavit.

Michael R. Dreeben:

And the district court found as a fact that the warrant was intended to incorporate the affidavit.

The affidavit states quite explicitly in two different places that it would not be executed until the triggering event occurred, and it also makes clear that the triggering event was the delivery of the videotape that respondent–

John Paul Stevens:

The affidavit itself says there is now concealed a certain person or property.

He checked the wrong the box–

Michael R. Dreeben:

–Well, I think the… that is correct, too, because this–

John Paul Stevens:

–If you read the whole affidavit, you know it doesn’t mean what it says there.

Michael R. Dreeben:

–I think that not only do you know that the… this was clearly intended to be an anticipatory warrant as to the videotape, but it also authorized the search for other items that were related to–

John Paul Stevens:

May I ask you this question?

With a warrant to conduct a wiretap, does the warrant just merely specify the telephone number and the time at which the… the officer may listen, or does it have anything to do with what… what… the content of the… of the conversation?

Michael R. Dreeben:

–Wiretaps, Justice Stevens, are regulated extensively by Federal statute, and under Federal statute, a wiretap order contains a myriad of details that are not specified by the Fourth Amendment.

Among those details are the crimes that are being investigated and the time period of–

John Paul Stevens:

No, but I mean in describing the authority of the investigating officer to execute the warrant, does it describe it just in terms of a physical number that can be listened, or one or more numbers, plus a time period, or does… does it say you may listen only when he’s talking about foreign affairs or–

Michael R. Dreeben:

–It specifies the crimes that are being investigated and it contains a minimization requirement which–

John Paul Stevens:

–It’s a minimization as to what they will transcribe, isn’t it?

Michael R. Dreeben:

–It’s a minimization as to what conversations they will intercept if they listen to a conversation and determine that it falls outside the scope of what they’re authorized to intercept.

Many of the calls that… that are intercepted in these kinds of wiretaps require a considerable amount of judgment and discretion.

Are the individuals talking in code?

Are they talking about crimes in an oblique way that pertain to the subject of the warrant, or are they really having innocent conversations?

And the officers can listen in long enough to make that determination.

If they determine that it’s a clean call, they have to minimize and terminate their interceptions.

Antonin Scalia:

Mr. Dreeben, could… could I ask you if the Government would… would defend a… an anticipatory warrant in these circumstances?

The postal inspectors know that the unlawful video has been put in the mail and they know that it… it is going to one of 17 individuals.

They’re not sure which one of the 17.

So they go and get a warrant that says, you know… and… and it will be obvious in my hypothesis that the delivery of the video has occurred.

So can they get a warrant that says you can go in… it lists all of these 17 people.

And it says you can go into their premises as soon as you see delivery of the video.

Would… would you support that kind of an anticipatory warrant?

Michael R. Dreeben:

Justice Scalia, I… I would certainly with respect to search of common areas.

For example, this was a delivery to some sort of a–

Antonin Scalia:

Well, then… then… well, I’m sorry to hear you say that because then you are really not saying that there has to be probable cause.

Michael R. Dreeben:

–No.

I’m saying that there would be–

Antonin Scalia:

Because at the outset there’s no probable cause to believe that any one of those 17… unless you think one seventeenth is enough for probable cause.

Michael R. Dreeben:

–Well, I think one seventeenth is pushing it for probable cause–

Antonin Scalia:

Yes.

Michael R. Dreeben:

–which is why my answer was as to the common area.

Certainly they can get a warrant that says we know that there’s an item that represents evidence of a crime and that it’s going to be at a particular location upon delivery and we can go in and search that location.

Antonin Scalia:

Yes, but I’m not talking about a particular location.

I’m talking about we know it’s going to be one of 17… or make it 50, if you like.

We don’t know which of those.

Michael R. Dreeben:

Yes.

Antonin Scalia:

We want a warrant that will let us go in immediately when we see it delivered.

Would you support that warrant?

Michael R. Dreeben:

With… if what you’re talking about is invading the individual expectations of privacy of… of 50–

Antonin Scalia:

Yes.

It’s in somebody’s home.

It’s into a home.

Michael R. Dreeben:

–No, I… I wouldn’t because I don’t think that… that one fiftieth in those circumstances would… would be probable cause without more.

I… I do think–

John G. Roberts, Jr.:

No, but there’s no… there’s no probable cause until the triggering event.

When… when the triggering event takes place, you’ve eliminated the 16 others and you do know that it’s… it’s… there’s probable cause.

How is that different from this case?

Michael R. Dreeben:

–This case is different because there… you… you can subtract out all of the variables except will the postal officials, in fact, deliver it to the place where they’re saying they will deliver it and they say that they’re delivering it to a household that has actually placed the order.

John G. Roberts, Jr.:

Well, that’s not true.

Maybe the… maybe the person decides he won’t accept it.

Michael R. Dreeben:

Then the… then the warrant should not be executed because this affidavit said that–

John G. Roberts, Jr.:

So there are a lot more things than just the delivery.

It’s not entirely controlled by you.

Michael R. Dreeben:

–I think that that… it’s fair to say that it’s not 100 percent controlled by the Postal Service, but I wouldn’t say that there are a lot of things that are left up in the air or that there’s any more that’s left up in the air than in the kind of experience that goes on in installing a wiretap.

Justice–

Ruth Bader Ginsburg:

Well, what… what… take this variable.

The… the warrant can be executed when the item is taken into the house, if I remember what it said.

Suppose the defendant is sitting on a porch, sees the postal carrier, gets up, takes the package, and proceeds to walk down the street, and never enters the house.

Could the warrant be executed?

Michael R. Dreeben:

–Not under this warrant because it was secured by an affidavit that represented that it… the warrant will not be executed unless and until the item is taken inside the house.

And so the agents assumed the risk, so to speak, that the event that you described, Justice Ginsburg, would occur, and under those circumstances, the search wouldn’t take place.

Presumably under those circumstances an arrest would take place.

A search would take place incident to the arrest of the individual.

The videotape would be found, and the Government would have acquired the evidence that it’s looking for, which is evidence with jury appeal that this individual has, in fact, received child pornography through the mail.

And it’s important to recognize that in this case there was ample probable cause that respondent had attempted to receive child pornography through the mail before the triggering event even took place, and had the agents wished to, they could have procured a warrant, a conventional warrant, so to speak, at that time that allowed the–

Antonin Scalia:

Yes, but you don’t want us to decide the case on that ground.

I mean–

Michael R. Dreeben:

–Well, I don’t think this was such a warrant, Justice Scalia.

I’m… I’m just pointing out that there was a chain of events that supported probable cause to a very strong degree and the triggering event represented that until the actual delivery had taken place and the item was brought in the house, the search wouldn’t take place.

John G. Roberts, Jr.:

Could you elaborate just a little bit for me on why you think this case is different from Justice Scalia’s hypothetical with the 17 people?

Because my concern is there… here you say once the triggering event takes place, then you do… the probable cause comes to fruition or whatever.

How is that different than his hypothetical?

Michael R. Dreeben:

It’s… it’s fundamentally different.

This case is fundamentally different from that hypothetical because the measure of probable cause at the time the warrant is issued is very weak under Justice Scalia’s hypothetical.

One out of 17 is pushing the envelope.

One out of 50, at least absent some extraordinary national emergency, is probably well outside the envelope for saying we have probable cause to go into any particular place.

Justice Scalia’s hypothetical illustrates that the emergence of later facts can make it very clear that the agents can go in and get probable cause at that moment, but this case is fundamentally different because the agents have probable cause based on probabilities.

Antonin Scalia:

–It is probable that this package will be delivered to this individual.

That probability exists at the time that the warrant is… is issued.

Michael R. Dreeben:

That’s right.

Antonin Scalia:

And that’s the probable cause you’re relying on.

Michael R. Dreeben:

That’s right.

Antonin Scalia:

It is probable that this package will be delivered to this individual.

Michael R. Dreeben:

That’s right.

And those fact–

John Paul Stevens:

But that probability does not support the truth of the statement that the person or property so described is now concealed at the place for the issuance of the warrant.

Michael R. Dreeben:

–Well, I… I think this takes me back to the fact that this warrant, number one, should be construed as a whole and not… not by virtue of which box was checked and, number two, that there were many items that were specified in the warrant that… and the warrant application that the agent had reason to believe were then concealed at the time.

So this was really a case where the form warrant was inadequate to the… to describe fully and accurately what was going on.

John Paul Stevens:

Of course, if the… if the stuff was already there that supports the warrant and the search, we don’t even reach the question of a… of the anticipatory warrant.

Michael R. Dreeben:

Well, I think you do in–

John Paul Stevens:

I should say I… I’ve approached the case on the assumption that the only thing we’re worried about is whether… whether the anticipatory part is okay.

Michael R. Dreeben:

–And that is–

John Paul Stevens:

But it doesn’t seem to me to be a fair response to say, well, we had other grounds for–

Michael R. Dreeben:

–No.

It’s a… it’s a fair response into… on how the warrant was drawn and why the statements that were made are not laughably wrong.

They… they are partially inaccurate because the videotape was clearly not on the premises at the time.

They are partially right in that other evidence of child pornography distribution was.

But this case… and, Justice Stevens, I quite agree with you.

This case only concerns the triggering condition because that–

John Paul Stevens:

–But… but you would defend the warrant even if the only thing they were looking for was the stuff delivered at the… at the time.

Michael R. Dreeben:

–Yes, and that’s the only thing that’s before the Court.

John Paul Stevens:

And as to that aspect of it, the warrant is incorrect.

Michael R. Dreeben:

Yes.

John Paul Stevens:

The warrant itself.

Michael R. Dreeben:

The… the box on the warrant is.

Again, I think that you need to–

John Paul Stevens:

Well, it’s not really a box.

I am satisfied, et cetera, the property so described is now concealed on the premises.

Michael R. Dreeben:

–The same response that I gave to Justice Kennedy.

The magistrate found that the warrant, the form of… that constitutes the warrant, incorporated the attached affidavit, and the attached affidavit makes clear exactly what the agent had in mind.

There is an alternative point here that I want to make before I reserve the remainder of my time for rebuttal, and that is the Ninth Circuit’s position, even if the Ninth Circuit were correct that the triggering condition needs to be in the warrant, should still not lead to the suppression of evidence because although the Government’s submission is that the triggering condition is not required by the Particularity Clause, if some other doctrine under the Fourth Amendment did require it to be in the warrant, the warrant should be treated as one that is at most overbroad as to the time of permissible execution.

That is, on its face it would authorize the warrant to be executed from the moment of issuance until 10 days after issuance instead of from the moment that the triggering condition is satisfied until 10 days after issuance.

When courts have confronted overbroad warrants, what they have done is ask is there probable cause that supports part of this warrant.

If the answer to that is yes, the next question is, is the evidence that’s sought to be suppressed acquired under the part of the warrant that was validly supported by probable cause?

If the answer to that is yes, there’s no suppression.

Michael R. Dreeben:

The warrant is, in effect, severed and the only suppression that can be obtained is as to evidence that was secured by execution of the part of the warrant that’s not supported by probable cause.

Here, there was ample probable cause to support the magistrate judge’s conclusion that after the triggering condition was satisfied, the videotape would be on the premises.

The warrant was not executed until after the delivery of the videotape took place, and therefore, there was no deficiency in the correlation between probable cause showings that were made to obtain the warrant and the time at which it was executed.

And the result is that there should be no suppression of evidence.

If I may save the rest of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, Mr. Dreeben.

Mr. Reichel.

Mark J. Reichel:

Mr. Chief Justice, and may… may it please the Court–

I’d like to begin with noting that, Mr. Chief Justice, you highlighted a specific concern with anticipatory warrants and a specific concern specific to this type of case.

A discussion was… was had about triggering events are commonly not so clean.

It requires a lot of judgment to be made by the officer in the field.

There are not only examples in the case law, but I speak from my own experience as a public defender of many years that there are many examples that occur often in the courtroom.

Specifically a triggering condition may allow for the search of a home after a suspect sells narcotics to an officer, but what will happen is the suspect will take the money from the officer and then have to go to another residence to get the narcotics, not the residence that the magistrate and the officer believe he would get them from.

As a result, he has to make a determination at that point whether the triggering condition has been satisfied.

Antonin Scalia:

Mr. Reichel, it… it seems to me it’s part of your case that the probable cause must be in existence at the moment the warrant is issued and that the magistrate cannot take into account the passage of time.

Are you–

Suppose that… that policemen apply for a… a warrant in Manhattan which is to be served in Brooklyn, and it’s going to… it’s going to take half an hour to get there.

Everybody knows it’s going to take half an hour.

And the probable cause that they come up with is they know that this mob leader is going to be in this apartment between 6:30 and 6:45.

Okay?

And they present the warrant to the magistrate at… at 6 o’clock.

It will take half an hour to get to Brooklyn.

The magistrate knows that when it’s served, the mob leader will be in this apartment.

Can that… can that warrant issue?

Mark J. Reichel:

Yes, because the magistrate has determined that there’s probable cause to believe that at the time of the search, the contraband, the purpose of the search, will be present in that particularly described location.

Antonin Scalia:

Right, and… and likewise, it… it would work the other way.

If the magistrate had the same facts, the… the mob leader is going to be there between 6:30 and 6:45, and the warrant is presented to him at 6:30, he would have to decline it because he knows by the time it’s served, it’s… it’s going to be gone.

Right?

Mark J. Reichel:

That is correct.

Antonin Scalia:

So the magistrate is always looking to the condition when… when the warrant is executed, and that’s all that’s happening here.

Antonin Scalia:

There is probable cause to believe that this person will be receiving contraband.

There is probable cause to believe it because he sent for it and it was mailed to him.

It’s just a matter of waiting till it gets there.

There is probable cause to believe that he will receive it.

And all you’re doing is predicting in the future, saying the probable cause doesn’t exist now, but it exists when the warrant will be executed.

I don’t see… I don’t see any real difference between that and the… and the mob leader example I just–

Mark J. Reichel:

Justice Scalia, what the magistrate is predicting is that there will be receipt, but the magistrate is… is not predicting that there will be contraband inside of that house at that point.

He’s actually shipping that discretion to the officer in the field.

Antonin Scalia:

–No, but it’s probable.

At the time that he issues the warrant, it is probable that this person will be receiving contraband because they showed, you know, this guy sent for it.

He sent for the… these child pornography films in… in a… you know, a Postal Service rouse, and we mailed it to him.

It’s probable that he’s going to be receiving it.

Mark J. Reichel:

It is probable that he’s going to be receiving it.

However, what occurred… what… the… the problem that occurs in such a situation is that is that the warrant issuing process itself, which is part of the machinery of government… the actual process of issuance is completed with anticipatory warrants by the officer in the field.

It’s not fair to say that the warrant has been issued and the magistrate provides it to the officer.

At that point, it’s not a valid warrant.

A warrant cannot be issued if it’s not valid by definition.

So what you have–

Ruth Bader Ginsburg:

Mr. Reichel, one of the concerns about the position you’re taking, the alternative would be that the police officer, expecting that this package is going to be delivered at a certain time, is on the lookout for it.

He sees the post officer approaching, calls on his cell phone to get an emergency warrant, let’s say.

The magistrate will not be nearly as well informed as he was when he was presented with… was it a 64-paragraph affidavit?

So the magistrate knows that the whole deal… he can’t possibly know it if he’s got… got a telephone call on an urgent basis.

So if you want the magistrate’s judgment rather than the police officers’ on the spot, then it makes much more sense to have the magistrate get a detailed picture of what’s going on and decide whether or not he’ll issue the warrant.

Mark J. Reichel:

–That is correct, and I’m… and, Justice Ginsburg, that’s why telephonic warrants are simple and easy, one of the many alternatives to anticipatory warrants, which do not require any–

Ruth Bader Ginsburg:

But I just… I made the opposite argument, that a telephone warrant has to be done on the basis of minimum information.

The officer… the magistrate will have a detailed affidavit when it isn’t on an emergency basis.

He… he will have, as he did in this case, an affidavit with 64 paragraphs explaining the whole deal, how it was set up.

So isn’t… isn’t there greater security if you could have a magistrate with time to think, well, is there really probable cause than to have the magistrate make that judgment on a… such a quick basis?

Mark J. Reichel:

–Yes, there is, Justice Ginsburg.

And the procedure… the most appropriate procedure is the duplicate warrant whereby the magistrate, satisfying all the concerns Your Honor has expressed, has this warrant.

Mark J. Reichel:

As to the final matter, the final determination of probable cause, he receives a call from the officer.

There’s an agent with the magistrate at the time.

He advises what’s just occurred.

He can advise he took the package but did not go in the house.

He took the package and did go in the house.

The magistrate has the 64-page affidavit, is all prepared now.

He can advise the officer to sign off on it, that it’s okay to search now.

He signed that–

Ruth Bader Ginsburg:

So there has to be… when does he get the… when does the magistrate get the affidavit?

Mark J. Reichel:

–Well before the delivery of the package in such a circumstance, Your Honor.

They bring a duplicate… a duplicate warrant to the magistrate who… and they… and there’s an agent who stays with the magistrate.

They then control… are in complete control at this point of the contraband.

Sandra Day O’Connor:

Mr. Reichel, did you take the position in the proceedings below that anticipatory warrants are invalid?

Mark J. Reichel:

No, Your Honor.

Sandra Day O’Connor:

No.

And did you raise the issue in your response to the petition for certiorari?

Mark J. Reichel:

No, Your Honor.

Sandra Day O’Connor:

No.

But you want us to address it now.

I mean, you… you make a big deal of the notion that there’s no such thing as an anticipatory warrant.

And yet, it’s never been addressed below.

It wasn’t addressed by the court below.

Mark J. Reichel:

Your Honor, if I… Justice O’Connor, if I can elaborate.

It was raised in the district court, and in fact, I believe it’s in the joint appendix.

Excuse me.

It’s in the cert petition at page 36a, which I think is appendix D, where the district court finds that they’re permissible, and he cites Weber and Hale.

And the district judge at that point made a final determination for the litigation in the district court that they were permissible and they were lawful in all circumstances.

I did not… the matter on appeal to the Ninth… the court of appeals on appeal, the more surer course that we thought for reversal would be the failure of particularity of these types of requirements.

But the most important point is I do believe it’s fairly included in the question presented before this Court.

Several examples, long discussion, lots of confusion about what must… what procedure must take place with anticipatory warrants I think calls out for the inferior courts to hear from this Court what those requirements are.

Mark J. Reichel:

To answer what those requirements are, this Court must answer whether they’re constitutional–

Antonin Scalia:

Can I–

Stephen G. Breyer:

I don’t see–

Antonin Scalia:

–can I take you through my… a variation of my earlier hypothetical?

You say that the magistrate can issue the warrant at 6 o’clock, although he knows that there really won’t be the probable cause until 6:30.

You say that would be valid.

He could issue it in Manhattan knowing that it wouldn’t be served in… in Brooklyn until 6:30.

What if the magistrate specified that out of an abundance of caution?

It’s just the same case, but he writes on the warrant, this warrant is not to be served until 6:30.

Does that make it invalid?

Whereas, it was valid before, it’s not valid if he… if he says I am anticipating what will be the situation when the warrant is executed.

He says it explicitly, it can’t be served until 6:30.

Does that make it bad?

Mark J. Reichel:

–Textually he… textually under the language of the Fourth Amendment, he cannot issue the warrant for service at 6:30 when probable cause–

Antonin Scalia:

Doesn’t it strike you as… as strange that it’s perfectly okay if he issues it at 6 o’clock, knowing that it’ll be… won’t… that there isn’t probable cause now, but there will be at 6:30 when it will be served.

You say that’s perfectly okay.

But if he says it on a warrant, not to be served until 6:30, it suddenly becomes bad.

Mark J. Reichel:

–If it… if it is textually okay, if the warrant is valid under the Fourth Amendment, that it must be clearly stated that the time and the… and the significant limit on the officer’s power to search is the time of 6:30, that must be clearly stated on the warrant to satisfy the Particularity Clause of the Fourth Amendment.

Antonin Scalia:

Oh, I see.

So… so you say so long as you say something as clear as 6:30, that’s okay.

It cannot be served until 6:30.

Mark J. Reichel:

It must be on there.

It is a requirement under the Particularity Clause that it must be on there for the officer–

Ruth Bader Ginsburg:

Where… where is time?

I know that the Fourth Amendment says persons and places.

Where does it say time is one of the particulars?

Mark J. Reichel:

–It is inherent.

It is inherent in that language.

It is backed up… clearly it is backed up by the purposes behind the Particularity Clause.

If a warrant… the probable cause… the… the two clauses in the Warrant Clause, the probable cause, is constitutionally I believe joined at the hip.

Mark J. Reichel:

It is textually joined with the objects of the search, the place to be searched, and the… and the persons to be searched.

And as a result–

Ruth Bader Ginsburg:

I think time… time is certainly relevant to probable cause, but the… the Fourth Amendment says what you have to identify with particularity are places and the items and the person.

Person, things, and place.

It doesn’t say time, but you say that’s inherent.

Have we… are there decisions of this Court that say time goes to the particularity requirement?

Sandra Day O’Connor:

Let me give you another example.

There are search warrants for wiretaps, are there not?

Mark J. Reichel:

–Yes.

Sandra Day O’Connor:

And they are often anticipatory.

They aren’t issued because the suspect is now using the phone, but because it’s anticipated in the future the suspect will use the phone at some point and there’s probable cause to believe, if… if the suspect does, there may be evidence of a crime.

I mean, anticipatory warrants are just inherent in the system.

I don’t… I just don’t think your argument follows from precedent.

Mark J. Reichel:

Thank you, Your Honor.

Justice O’Connor, I do know that the… that wiretap statutes came about only after three important decisions from this Court, Ker v. California, Katz, and Berger.

And in… in those opinions, they dealt… they dealt very strongly with the Particularity Clause of the Fourth Amendment and wiretap restrictions.

Thereafter, there were extensive congressional hearings on wiretaps and the final result was a very carefully drafted statute that allowed for wiretap, subject to… to very stringent conditions, specifically enumerated… enumerated crimes and specific circumstances, but additionally, notice to the homeowner–

Sandra Day O’Connor:

Well, the Constitution still applies to it, and they are inherently anticipatory.

Mark J. Reichel:

–And I… and I believe that wiretap laws… the wiretap laws require a showing of present probable cause, not probable cause in the future.

But there is criminality ongoing at this time.

Sandra Day O’Connor:

Probable cause that there… this is somebody who’s going to use a certain telephone number and that there may be reason to suspect a crime will be discussed.

Mark J. Reichel:

I believe this Court announced in–

Sandra Day O’Connor:

And… and this is no different than that.

Mark J. Reichel:

–I believe in… in… this Court announced, Justice O’Connor, in the Berger opinion that for a wiretap warrant to be authorized under the Fourth Amendment, there must be a crime undertaken, presently being committed, or about to be committed, additional evidence of a crime that’s already been committed.

There is present probable cause.

And it also, I do not believe, vests the discretion in the officers to completely control when probable cause will occur.

Antonin Scalia:

I mean, the conversation is not occurring right now.

The magistrate has to say in the future, when this warrant is executed, the conversation probably will be occurring.

Right?

And so also here.

Antonin Scalia:

You know, the… the receipt is not occurring now, but on the basis of all of the evidence before me, I think that that receipt will be occurring.

Mark J. Reichel:

Justice Scalia, I believe that wiretaps are different for a few reasons.

First of all, I do not believe they could have been foreseen by the Framers of the Fourth Amendment.

As a result, more pragmatic modern approaches for law enforcement’s needs must be taken into consideration.

But additionally–

John Paul Stevens:

I’m not sure the Framers used controlled deliveries either.

[Laughter]

Mark J. Reichel:

–I agree, Your Honor.

Stephen G. Breyer:

–All right.

I… I have a question that you could just clarify a confusion.

You want to bring into this case the question of whether or not anticipatory warrants are ever valid.

I had a case in the First Circuit where I explained my view on that.

I thought they would be reasonably described.

So I don’t know if that issue should be brought up here.

Maybe.

I can’t figure out what issue should be brought up here.

There’s a Van Treska case that says we ought to read these things in a common sense fashion.

All right?

I read it.

My common sense says I have a warrant here.

It says nothing about anticipatory anything.

It says you can go and search for any of 16 items, 14 of which are in his house well before the delivery.

After all, he’s had all this correspondence with these people about child pornography.

They have terrific reason for thinking he might have some.

And that’s all it says.

And then it says, is there probable cause for a warrant that says go in any time now and search for any of these items, including what will be delivered, if that’s when you do it?

I say I look at the probable cause.

His probable cause is he thinks that another package is being delivered, and he’s right to think it.

Now, whether it is delivered or not doesn’t add anything really to the issuance of the warrant.

It might add to his personal confidence.

Stephen G. Breyer:

But that’s my common sense opinion.

The common sense is the only question here is do they have probable cause to issue a warrant that allows them to search now, because that’s what it says.

So now how… how, given that… I grant you the Ninth Circuit went into all kinds of other things, but you explain to me, please, how I’m supposed to reach those other things and what I’m supposed to do, and why I’m wrong.

Mark J. Reichel:

Thank you, Justice Breyer.

The particularity requirement requires specificity on the purposes behind the particularity requirement in the warrant itself and not in some other documents or supporting documents elsewhere.

Stephen G. Breyer:

Oh, no, it’s not supported.

It’s specific.

It says go to Jeffrey Grubbs’ residence and then it has an attachment A which describes it with great specificity.

And go and search for and seize the records and materials described in attachment B, and then we have 16 different kinds of items with great specificity.

That’s it.

That’s the end of this warrant, and that’s what it says to do, and that’s what he did.

And then he has a different affidavit which gives him the probable cause for issuing the warrant I just described.

Mark J. Reichel:

Justice… Justice Breyer, it says that they may enter into that house, but only upon the occurrence of a significant event, a specific occurrence.

Stephen G. Breyer:

Where does it say that?

Mark J. Reichel:

That is in the affidavit–

Stephen G. Breyer:

No, no.

I’m reading the warrant.

I’m not reading the affidavit.

It happens to say that the affidavit is… that that affidavit is… it’s in appendix A, appendix B, but it doesn’t say anything about going in on… where does it say that?

Mark J. Reichel:

–Well, it–

Stephen G. Breyer:

It says… mine says, you may command to search on or before April 27th for 10 days the person/place named and make the search in the daytime between 6:00 and 10:00.

That’s what mine says.

Mark J. Reichel:

–Justice–

Stephen G. Breyer:

Then there’s an affidavit about probable cause.

That’s true.

So–

Mark J. Reichel:

–Justice Breyer, I think that highlights and it supports the court of appeals decision in this case, specifically because if it’s not stated on the face of the warrant, such as–

Stephen G. Breyer:

–What’s not stated?

Mark J. Reichel:

–The limit on the officers’ power to search.

Stephen G. Breyer:

Where is there a limit?

Mark J. Reichel:

Their limit is in the triggering event.

It is an anticipatory warrant which is written at the top.

Stephen G. Breyer:

It is?

Mark J. Reichel:

Yes.

Stephen G. Breyer:

What is it that tells us that?

I just happened to read an affidavit where the… the person says that he won’t enter until this package is there, but there are a lot of cause I would think–

Antonin Scalia:

Doesn’t the Government concede this point?

I had thought the Government conceded that this warrant would not have been validly executed if they went in before the triggering event.

Otherwise, there’s no purpose in putting in the triggering event.

Maybe we’ll have to get the Government to… to state that explicitly, but that… that’s my understanding, that they acknowledge this warrant would not have been validly executed if they went in before the triggering event occurred.

If that’s not the case, I agree.

I don’t know why we took the case.

[Laughter]

Mark J. Reichel:

That is correct, Justice Scalia.

And, Justice Breyer, the limitation for the officer is a significant matter.

It is the only thing that gives him the–

Stephen G. Breyer:

–Well… well, he says in his affidavit he’s not going to execute it until this package is delivered, but that… if I read it in a common sense way, say, of course, he isn’t going to because he wants to get everything at once.

But after all, he’s in the place.

I would say there’s a lot of probable cause for him to looking for 12 of these items which are there whether this package is there or not.

Of course, he’s not going to execute it till later.

John Paul Stevens:

But, of course, if you take that view, why did they bother to put the words, anticipatory search warrant, on the document?

That’s what we’re fighting about.

If we decide it on your ground, we never should have taken cert.–

Stephen G. Breyer:

Maybe that’s the answer.

Mark J. Reichel:

–I believe the particularity requirement also does not assume that the officers seeking the warrant will be the officers serving the warrant.

John G. Roberts, Jr.:

What else is there in this joined at the hip particularity requirement?

The number of officers?

Which officers, FBI agents or DEA or something else?

I mean, you’re… you’re adding to the text of the amendment, and I just wonder what else is added under your view.

Mark J. Reichel:

Mr. Chief Justice, I believe they are joined at the hip because the… the particularity requirement–

John G. Roberts, Jr.:

No.

That’s your argument.

I’m just saying what else is joined at… at the hip besides time.

You say they don’t say time.

They say persons to be seized and place to be searched, and you say inherent in that is time.

Well, what else is inherent in there?

Mark J. Reichel:

–If there’s a… Mr. Chief Justice, if there’s a significant limit on the time of the execution of the warrant, then that does become part of the Particularity Clause.

John G. Roberts, Jr.:

That’s time.

Is there anything else that’s not written there that is part of that particularity requirement?

Mark J. Reichel:

Not that I… if it is significant… if it is a significant limit on the officer’s power to search and if it serves the other purposes of the particularity requirement, the measurement of the… providing the homeowner the notice of what is going on.

John G. Roberts, Jr.:

Well, there’s all sorts of, as Mr. Dreeben explained, reasonableness.

It doesn’t say how you enter the house, but if you suddenly go in with a… with a tank, we might find that unreasonable.

But that’s not something that has to be spelled out particularly under the terms of the Fourth Amendment.

Mark J. Reichel:

Mr. Chief Justice, that’s correct.

The reasonableness prong is separate, and I think this Court has… has long pronounced that the manner of executing a warrant may offend the Constitution and vitiate the legality of a search.

Antonin Scalia:

So who–

John G. Roberts, Jr.:

It doesn’t have to be spelled out in the warrant itself.

Mark J. Reichel:

The manner of entry… the method of entry does not have to be spelled out.

Antonin Scalia:

–So who, what, and where includes when, but it doesn’t include how.

Right?

Where… where do you derive this proposition?

Mark J. Reichel:

I believe that not for… for all cases, I cannot answer the question, but for cases of anticipatory search warrants where the officers are going to finalize the issuing process, the officers are completely in control of the manufacture and completely in control of the completion of the delivery of the contraband, and if a magistrate has allowed them to make that decision in the field, that has to be clearly stated to satisfy the particularity requirement on the front page of the warrant so that any officer executing it, not just those who… who seek the warrant, but the officer executing it, is keenly aware of his limit to search.

As well, it puts the homeowner on notice of the other factors of the particularity requirement that this has announced in–

John Paul Stevens:

–May I ask–

Mark J. Reichel:

–the Groh v. Ramirez opinion.

John Paul Stevens:

–may I ask you this question?

The warrant now says it is now… the warrant says the contraband and so forth is now concealed on the person or in the house.

And if I understand your position correctly, your first argument is it should have said, will be concealed upon the happening of the anticipatory event.

That would have… and describe the event properly.

That would have satisfied the Ninth Circuit’s objection.

Mark J. Reichel:

That… that is correct, Justice Stevens.

John Paul Stevens:

Now, why would that not also have satisfied the objection of the warrant… the argument you make in this Court?

Because it would have made it clear that there is now probable cause to believe it will be there at the time of the execution.

Why isn’t that sufficient to make the warrant valid?

Mark J. Reichel:

It will make the warrant valid under the Particularity Clause.

John Paul Stevens:

Will it also satisfy the text of the Constitution that says no warrant shall issue except upon probable cause?

And I’m asking you why is it not adequate probable cause to say we believe that will probably happen when the anticipatory event occurs?

Mark J. Reichel:

Because the text of the… of the probable cause requirement in the Fourth Amendment has clearly been announced by this Court to always require the magistrate’s determination of the facts, as well as the legal grounds, after studied caution to make that determination.

John Paul Stevens:

Well, he has made a determination of the facts that will establish probable cause.

Mark J. Reichel:

He has, Justice Stevens, but he has ceded his discretion to finalize that… to finalize that decision.

Stephen G. Breyer:

Will you… will you just help me with this?

Justice Stevens answered my question.

The word anticipatory.

The word anticipatory does suggest it isn’t valid for a while.

Nothing else in the warrant does.

What am I supposed to do if I think there’s adequate probable cause for issuing that warrant right now in respect to 12 of the things?

And it’s really pretty hard for me to try to understand what this warrant is about if I’m supposed to understand it, by reading through about 15 or 20 pages of small print and there discovering somewhere in the back of it some… the post office says I’m not going to execute this until this other package gets there too.

Now, that does make me nervous.

That… that supports you.

Mark J. Reichel:

That does not–

Stephen G. Breyer:

I understand that, but it’s not going to support you enough unless you connect this anxiety I’m having now about this being buried in page 28 of an affidavit when it’s an important condition of the warrant, the only clue to that fact being the word anticipatory.

And there we are.

Now, you tell me why this anxiety, which is going to help you, is connected to something in the law.

Mark J. Reichel:

–Justice Breyer, they are prone to abuse by nature.

They are–

Stephen G. Breyer:

No, please don’t.

I start with an assumption that an anticipatory warrant is constitutionally valid.

I start with that assumption.

I’m assuming that the conditions have to reasonably describe.

My anxiety is resting only on the fact that this warrant doesn’t seem to be an anticipatory warrant but for one word, and to know what it’s about, you have to look through 28 pages of fine print.

Stephen G. Breyer:

Now, you connect that anxiety to something in the law.

Mark J. Reichel:

–Thank you, Justice Breyer.

In Groh v. Ramirez, this Court set forth very clearly that the purpose of the particularity requirement serves two functions.

One is for law enforcement; the second is for the homeowner.

And for law enforcement, it is very clear in these… this Court’s decisions that that must be so that the officer executing it can simply and quickly and efficiently determine the limits of their power to search.

Antonin Scalia:

Of course, all… this whole argument begs the question.

It… it assumes that the particularity requirement includes time, not only who, what, where, but also when.

Right?

I mean, you… you acknowledge that if you’re wrong about that, if you’re wrong about the fact that who, what, and where automatically includes when, the argument you’ve just made doesn’t get anywhere.

Mark J. Reichel:

Justice Scalia, I… I can… it is inherent in the place, the objects, and the persons to be searched in a particularity–

Antonin Scalia:

I understand that’s your argument, but you agree that if… if that argument is wrong, you’re done.

Mark J. Reichel:

–That’s correct.

With regard to anticipatory warrants, time is part of the particularity requirement.

The time of the execution of the warrant, the time of the determination of probable cause that contraband will be present, the time of the determination of probable cause, which is the triggering event, which comes from the Fourth Amendment itself–

Ruth Bader Ginsburg:

They have first the outer limit of the 10 days in the warrant itself.

And in fact, this warrant was executed within 2 days of its issuance.

Is that not–

Mark J. Reichel:

–That’s correct, Justice Ginsburg.

Ruth Bader Ginsburg:

–And could it be if the officer knows that this package… let’s say it’s loaded with dynamite or guns or drugs… is going to be delivered at a certain time and it… the delivery occurs, and then the officer busts in and says, there’s exigent circumstances.

They’re going to take those drugs and they’ll be off the premises.

That might happen.

Mark J. Reichel:

That might happen.

Exigent circumstances in the execution of a warrant were not presented in this case.

Ruth Bader Ginsburg:

Well, my… my question is, isn’t it better to have the police go to the magistrate when there’s time for the magistrate to reflect, than to have this scenario where the police will say this was really dangerous stuff, exigent circumstances?

Wouldn’t you want the officer to apply in advance for the warrant?

Mark J. Reichel:

Justice… Justice Ginsburg, yes, I would.

And I think at that point the officers would also have to leave the final determination as to whether probable cause has been completed to the magistrate through the use of many alternatives, including a telephonic warrant where the–

Ruth Bader Ginsburg:

Even… wasn’t this man… magistrate told we’ve set this whole thing up?

We’ve put this package in the mail.

It’s going to be delivered at such and such a time.

Ruth Bader Ginsburg:

Wasn’t the magistrate told that?

Mark J. Reichel:

–Yes, Justice Ginsburg.

Ruth Bader Ginsburg:

So why was there a need for a second call when exactly that happened?

Mark J. Reichel:

Well, specifically what was highlighted in this case is that the individual receiving the package was his wife, Justice Ginsburg.

And it’s… it’s clear in the record that she received it.

Moments later, they rushed in.

The first thing she said to the officers is what is going on here and why are you here?

What is going on here?

Why are you here?

At that point, I believe clearly under… under the court of appeals decisions and other court decisions, that this crime, the knowing receipt of the illegal material, had not been completed.

There had been no crime committed at that point.

And there was no… no knowing receipt of the illegality of this.

There’s never been any evidence–

Ruth Bader Ginsburg:

Didn’t… was… he was on the premises?

Mark J. Reichel:

–He was inside the–

Ruth Bader Ginsburg:

And he said, I know why they’re here.

Mark J. Reichel:

–Justice Ginsburg, he was inside the house, and he walked outside thereafter.

Antonin Scalia:

Well, and they… and they found other… other videotapes besides the one that had just been delivered, didn’t they, in the course of the search?

Mark J. Reichel:

They did, Justice Scalia.

Now, but they did enter the house prior… they entered the house prior to a lawful triggering condition.

In such an example, they could have contacted the magistrate immediately, advised what had happened, who would have realized at that point that a crime had not been committed, that there was not probable cause that this crime, the knowing receipt, had been committed.

David H. Souter:

And exactly the same thing would be true if they had stated the triggering event clearly somewhere in… in the warrant.

The… the argument here is that the triggering event was stated in the affidavit.

Mark J. Reichel:

But this does… Justice Souter, this highlights why the triggering event must be clearly, specifically drawn by a magistrate with studied caution about the exact factors for probable cause which would allow this search.

And if it’s buried in some affidavit somewhere, if it’s not on the front of the warrant, or if it’s vested in the discretion of the officer to make that determination whether that’s close enough, then it is prone to these abuses and it is… requires the magistrate to make that final legal determination.

John G. Roberts, Jr.:

Thank you, counsel.

Mark J. Reichel:

Thank you.

John G. Roberts, Jr.:

Mr. Dreeben, you have 3 minutes remaining.

Antonin Scalia:

Mr. Dreeben, a quick yes or no.

Does the Government concede that when you have an anticipatory warrant, the warrant is not properly executed until the… the anticipated event occurs?

Michael R. Dreeben:

Yes, Justice Scalia, because the representations that are made to the magistrate to secure the warrant include the fact that the warrant will not be executed and the agents should–

John Paul Stevens:

But that… that puzzles me a little.

The… the affidavit says execution will not take place until the event.

But the authority to search, which is in the last paragraph, is not limited to the time after the anticipatory event.

Michael R. Dreeben:

–That’s true because I think that the magistrate is making the common sense judgment that this will be… we don’t know exactly when–

John Paul Stevens:

I mean, not even… it is not only the warrant, but the affidavit itself doesn’t say we merely request permission to search after the… after the event.

It’s a general request for authority to search.

Michael R. Dreeben:

–It makes the representation, and I think what draws the link between the conditions that are represented to occur before the warrant will be executed and the warrant itself are paragraphs 1, 2, and 3 of the items that are to be seized because those pertain–

John Paul Stevens:

No.

I’m drawing your attention to paragraphs 61 and 64 of the affidavit.

Michael R. Dreeben:

–I understand that, Justice Stevens.

But the… the items to be seized include the videotape and its containers which are paragraphs 1, 2, and 3.

John Paul Stevens:

Yes, but the authority is broader than the authority to search for those items.

Michael R. Dreeben:

That’s true.

But those items… the magistrate can conclude that there’s probable cause to believe that they’ll be on the premises only after delivery has taken place.

And the magistrate has issued the warrant, and the three principal items at the top are those things.

So it’s logical to conclude that the magistrate formed the view that there’s probable cause to believe that these items will be on the–

John Paul Stevens:

But it takes a step of reasoning beyond merely saying we incorporate the… the affidavit into the warrant.

Michael R. Dreeben:

–I think it takes a very small step of logical inference, but I agree with you, Justice Stevens, that it doesn’t say everything that is logically implied in the magistrate’s probable cause finding.

But the magistrate’s probable cause finding is predicated on the view that the items will be there because the Postal Service has represented they’ll deliver them.

The burden of the Ninth Circuit’s view is that the Particularity Clause applies to the triggering condition and mandates that it be stated in the text even though the Fourth Amendment’s text doesn’t contain that requirement.

This Court in Dalia v. United States rejected a similar effort to add a requirement to a warrant that would authorize surreptitious entry to install a covert bugging device, and the Court’s reasoning in Dalia makes clear that the Court was unwilling to go on a progressive path of reading things into the Fourth Amendment’s Particularity Clause that are not there.

Stephen G. Breyer:

So you just want us to say, look, the Ninth Circuit is wrong.

They’re okay to have conditional warrants like this and there is no absolute rule you always have to have the triggering condition in.

As to whether this is too confusing or not too confusing, send them back and let them figure it out.

Michael R. Dreeben:

No, I don’t want the Court to send it back to the Ninth Circuit to impose yet new requirements on the execution of warrants.

[Laughter]

What I want the Court to hold is that the triggering condition in an anticipatory warrant is not subsumed in the Particularity Clause and therefore it need not be in the face of the warrant at all.

And alternatively, if the Court believed that it did, that a warrant that’s executed after the triggering condition has occurred, does not require suppression of evidence.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Dreeben.

The case is submitted.