Today, a 8-0 Court issued its opinion in United States v. Grubbs (here), a case touching on the use of anticipatory search warrants. What's an anticipatory warrant?
An anticipatory warrant is a search warrant that is issued before probable cause exists. Usually some condition will establish probable cause and thus "trigger" the warrant. Thus, as issue in Grubbs was this simple question: Given that the Fourth Amendment does not allow warrants to issue "but upon probable cause," are warrants that are issued before probable cause exists constitutional?
This seemed like a pretty simple question. No warrant issued before probable cause was established complies with the Fourth Amendment's Warrant Clause. Justice Scalia, a "textualist," reached the opposite conclusion. What is most amazing about his conclusion is how he reached it. Rather than analyzed the Fourth Amendment's text or structure, he writes:
Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, “anticipatory.”
That's disingenuous to say the least. At the time a traditional search warrant is issued, there actually is probable cause to believe some crime has been committed. At the time an anticipatory search warrant is issued, there actually is not probable cause to believe a crime has been committed. We all recognized the difference between "is" and "is not," right?
So an anticipatory search warrant is issued in anticipation of probable cause. Which means before there is probable cause. A traditional search warrant is issued in the presence of probable cause. Get that, Scalia? It's really very easy when you're trying to be honest.
Or perhaps Scalia's been reading books on quantum mechanics and thus believes that probable cause now is the same as probable cause in the future? Who knows?
Whatever his reasons, this case is utterly bizarre. It's one of the most poorly reasoned and disingenuous judicial opinions I've seen in my lifetime. The next time someone proclaims the Power and Glory of Nino Scalia, I'm going to ask them to reconcile Grubbs with any understanding of textualism.