Groh and Grubbs

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause...."  At issue in  United States v. Grubbs (read Orin Kerr's summary) is whether anticipatory warrants, which issue before there is probable cause, are unconstitutional.  If the Justices are consistent, then the answer is clearly, "No."

Last Term, in Groh v. Ramirez, seven Justices (Rehnquist, Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer) expressed the view that a search warrant that did not comply with the Fourth Amendment's textual requirements was invalid under the Fourth Amendment.  In Groh, a federal agent forgot to attach the appendix to a search warrant: the appendix contained the persons and things to be searched and seized.  Thus, the warrant did not "particularly describ[e] the place to be searched, and the persons or things to be seized." Although Justices Kennedy and Rehnquist disagreed with the majority over whether the federal agent could be held liable for forgetting to attach the appendix, they agreed that a warrant that does not comply with the text of the Fourth Amendment is unconstitutional.  A dissenting Justice Kennedy wrote:

I agree with the Court that the Fourth Amendment was violated in this case. The Fourth Amendment states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  The warrant issued in this case did not particularly describe the things to be seized, and so did not comply with the Fourth Amendment.  

Anticipatory warrants do not comply with the Constitution's text, and thus according to at least six (or five, if O'Connor's replacement is named before the case is decided) sitting members of the Supreme Court, are unconstitutional.  Of course, I don't think things are this easy.  But I'll be anxious to see whether any Groh Justice change his or her mind and refuses to apply the Fourth Amendment's text to anticipatory warrants.

And in case you're wondering, our favorite textualists, Justices Scalia and Thomas, are quasi-textualists when it comes to search warrants.  Dissenting in Groh, Justice Thomas wrote:

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  The precise relationship between the Amendment’s Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While "it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness," California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring in judgment), the text of the Fourth Amendment certainly does not mandate this result.

Thus, U.S. v. Grubbs will be very interesting.  Will Justice Breyer, unlike in Groh, decide that the Fourth Amendment's literal text need not be obeyed?  Will Justices Scalia and Thomas decide that searches conducted pursuant to anticipatory warrants are reasonable, since warrants aren't required under the Fourth Amendment?