Anticipatory Search Warrants

• Jurisdiction: Maryland

V. Anticipatory search warrants

An anticipatory search warrant is a warrant based on current probable cause to believe that, in the future, there will be probable cause to believe that particular evidence of a crime will be located in a particular place. United States v. Grubbs, 547 U.S. 90, 96-97 (2006). See State v. Lee, 330 Md. 320, 328 (1993). Execution of an anticipatory warrant has a "triggering" condition precedent. Grubbs, 547 U.S. at 96-97.

A. Fourth Amendment

An anticipatory search warrant does not violate the Fourth Amendment. In Grubbs, an anticipatory search warrant did not state what triggering event would permit the search warrant to be executed, but the supporting affidavit did provide the triggering mechanism. Id. at 92, 99. The Supreme Court held that, although anticipatory search warrants do not violate the Fourth Amendment, their validity is conditioned on the existence of a triggering event (other than the mere passage of time), and two probable cause prerequisites, as follows:

(1) There must be probable cause, at that time, to believe that the triggering condition will occur in the future. (2) If the triggering event occurs, there must be probable cause to believe that fruits, evidence, and/or instrumentalities of a crime will be present when the warrant is executed. Id. at 96-97. There is no requirement to set forth, in the warrant, the triggering event because the Fourth Amendment requires only that a search warrant state, with particularity, the place to be searched and the persons or things to be seized. In this case, there was probable cause to believe that (1) the triggering event (delivery of pornography) would occur; and (2) the pornography was evidence...