United States v. Grubbs

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Anticipatory search warrants can only be executed after the occurrence of a “triggering event,” such as when a suspect takes possession of contraband from an undercover agent. If that event occurs as anticipated prior to the search, must the suspect receive notice of the triggering condition during the search through express reference to the triggering event in the language of the warrant itself or in a supporting affidavit accompanying the warrant?

Oral argument: 
January 18, 2006

Anticipatory search warrants are used by law enforcement to gain permission to perform a search where the probable cause mandated by the Fourth Amendment does not yet exist. Instead, probable cause is expected to materialize through the anticipated conduct of the suspect, such as when a suspect takes delivery of an illegal item or receives payment for an illegal act. Currently, there is a split between federal circuits as to how much information must be provided about a party against whom such a warrant is served. In this case, the Ninth Circuit reiterated its position that the Fourth Amendment requires the warrant to enumerate plainly the triggering event, just as it requires a particular description of the place to be searched and persons or items to be seized. The Ninth Circuit believes anticipatory warrants are particularly vulnerable to abuses of police power, and requiring the warrant to articulate the triggering event allows citizens to ensure that such searches are lawfully executed. The government argues, and other Federal Courts of Appeal have agreed, that the Fourth Amendment contains no such requirement, and the unique aspects of anticipatory warrants are adequately shielded from abuse by existing probable cause requirements inherent in the warrant application process.

Questions as Framed for the Court by the Parties 

Whether the Fourth Amendment requires suppression of evidence when officers conduct a search under an anticipatory warrant after the warrant’s triggering condition is satisfied, but the triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched.


The following Facts is derived from the United State’s Supreme Court Brief, see Brief of the United States as Petitioner, and the Ninth Circuit’s amended opinion, see United States v. Grubbs, 377 F.3d 1072 (9th Cir. 2004). Because of the procedural complexities detailed below, there has not yet been a trial to determine the facts of this case. The reader should thus note that what follows are essentially the government’s allegations against Jeffrey Grubbs, and they may not ultimately prove to be the facts of this case.

On December 20, 2001, Jeffrey Grubbs allegedly contacted the operator of a website offering videos depicting minors engaged in sex acts. A week later, he allegedly sent via email an order for a videotape entitled “Lolita Mother and Daughter,” which was described on the website as depicting “a lovely young girl”—“If she’s over 10 I’d be shocked”—engaged in sex acts with “Mom.” The website was operated by an undercover United States Postal Inspector. Grubbs allegedly sent the Inspector $45 in February of 2002 for the video.

On April 17, 2002, Postal Inspector Gary Welsh applied to a magistrate judge for an anticipatory warrant to search Grubbs’ residence should Grubbs or anyone in the residence take possession of the video following a controlled delivery by a team of Inspectors. Inspector Welsh filed a twenty-five page affidavit, which set forth in two places the requirement that this “triggering condition” be met before the search could be conducted. Unfortunately for the government, no such language appeared in the text of the warrant itself as served at Grubb’s residence. The warrant did, however, refer to the affidavit generally.

When the Inspector and his team delivered the video two days later, Grubbs’ wife accepted delivery of the package and took it into the house. A few minutes later, as Grubbs attempted to leave the residence, Inspectors approached him and detained him. The rest of the team, ten officers in all, then arrived. At some point, apparently before the search began in earnest, Grubbs allegedly told Inspector Welsh that what the officers were looking for was in the garage.

Inspectors did not show the warrant to Grubbs until approximately half an hour after they initially approached him, some time after his alleged statement about the garage. Additionally, no one showed either Grubbs or his wife the affidavit containing the triggering language, nor did the Inspectors leave a copy of the affidavit at the residence—they left just the warrant and the attachments detailing both the place to be searched and the items to be seized. Inspector Welsh claims that his entire team read the affidavit prior to the search, and that they were aware of the required “triggering event.” He further claims that he had a copy of the affidavit with him during the search of Grubbs’ residence. (That Grubbs and his wife never saw the affidavit is not in dispute).

Grubbs pled guilty to one count of violating federal anti-child pornography laws for receiving the video. However, his guilty plea was conditioned on the outcome of his motion to suppress the evidence of the tape seized during the search. While the trial judge denied the motion on all three of the grounds alleged by Grubbs, the Ninth Circuit found merit in his argument that the failure to present the affidavit containing the triggering condition rendered the search illegal under the Fourth Amendment. On appeal by the United States, the Supreme Court granted certiorari to address the holding of the Ninth Circuit.


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.” (Emphasis added.) The United States argues that because “triggering events” are not included in the text of the Fourth Amendment, the amendment does not require that warrants describe them with particularity. See Brief for Petitioner at 13.

In Groh v. Ramirez, the Supreme Court held that the particularity requirement must be met in the warrant itself, or in a supporting affidavit referenced by the warrant and accompanying it. See 540 U.S. 551, 557 (2004). The Court, however, only addressed the particularity requirement with respect to the place to be searched and the persons or things to be seized. See Id. In fact, the court explicitly stated that its decision did not address whether the particularity requirement applied to other elements beyond those expressly stated in the Fourth Amendment (such as a triggering events). Id.

The Ninth Circuit, however, had previously held that the Fourth Amendment particularity requirement did apply to triggering events. See United States v. Hotal, 143 F.3d 1223, 1227 (9th Cir. 1998). It thus read the Groh decision to require that the triggering condition be particularly described in either the warrant itself, or in a supporting affidavit referenced by the warrant and accompanying it. See Id. However, at least one other circuit had previously held that the particularity requirement did not apply to triggering events. See U.S. v. Hernandez-Rodriguez, 352 F.3d 1325, 1332 (10th Cir. 1999); see also, U.S. v. Moetamedi, 46 F.3d 225, 229 (2d Cir. 1995) (citing cases apparently in contradiction to the Hotal rule from the 8th Circuit, and concurring with those cases).

The United States argues that the Fourth Amendment particularity requirement does not apply to anything other than the place to be searched and the persons or things to be seized. See Brief for Petitioner at 13. It contends that Groh clearly articulates four requirements for the “Warrants Clause,” and that the Ninth Circuit has essentially created a fifth. See Id. Because the Fourth Amendment is specific as to what items must meet a particularity standard, the government contends that other elements not so named do not fall under that requirement. Id. at 14.

The United States seizes upon the Hotal decision as the weak link in the Ninth Circuit’s logic, and attacks that ruling as being based on policy considerations unsupported by the Constitution. Id. at 17. The government provides a Constitutional history of the concerns that led to the language of the Fourth Amendment, arguing that the problem feared by the drafters of the Constitution was general warrants, which contained insufficient specificity as to the location and objectives of the search. Id. at 18. Since anticipatory warrants did not exist, the government argues, the drafters of the Constitution could not possibly have sought to include specific requirements for them under the language of the Fourth Amendment. Id. The Ninth Circuit, however, believed that general concerns over the police power as limited by the Fourth Amendment should apply especially to anticipatory warrants as a modern creation. See United States v. Grubbs, 377 F.3d 1072, 1078 (9th Cir. 2004) (quoting Hotal).

The government also makes several “common sense” arguments. See Id. at 20-24. The first is that providing additional information to parties being searched would encourage more confrontations with law enforcement about the validity of the search at the time and place of its execution. Id. at 20–21. The proper place for such disputes, the government argues, is in litigation after the search has concluded. Id. Another noteworthy argument is the United States’ assertion that anticipatory warrants often occur with more probable cause at the time of execution than “standard” warrants because of the occurrence of the “triggering event.” Id. at 22–24.

While Respondent Grubbs’ brief is currently not available, the government’s argument is predictably in sharp contrast to the language of the Ninth Circuit. In its opinion below, that court stated that “a warrant conditioned on a future event presents a potential for abuse above and beyond that which exists in more traditional settings.” 377 F.3d at 1078. “The only way effectively to safeguard against unreasonable and unbounded searches,” the opinion reasons, is the “[a]pplication of a particularity requirement.” Id. The United States essentially argues that those safeguards are best left to the courts through the dual process of the issuing of the warrant and resolving any disputes over its validity through post-seizure litigation. Brief for Petitioner at 14–15, 20. Those safeguards address probable cause and not particularity. Id.


This case demonstrates the sort of situation that frustrates many Americans: a criminal defendant caught receiving child pornography may be exonerated because of an investigator’s failure to meet a technical requirement. While adequately aware of the dangers of unchecked police powers, many citizens express frustration when upholding constitutional rights involves suppressing damning evidence of a crime. Thus, the boundaries of police searches and the necessary prerequisites for conducting such searches remain a topic of tremendous interest to people from all walks of life—not just law enforcement personnel, lawyers, or would-be criminals. While it is difficult to muster sympathy for Jeffrey Grubbs, it is easy to imagine the confusion and vulnerability we would feel should federal agents knock on our door one morning, search warrant in hand. Thus, the Court has always treated questions about the propriety of police searches as central to protecting important constitutional rights, and not a matter of quibbling over “formalities.” See McDonald v. United States, 335 US 451, 455 (1948).

The Supreme Court most recently had an opportunity to address the mandates of the Fourth Amendment in Groh v. Ramirez.540 U.S. 551 (2004). In Groh, the Court noted that the Fourth Amendment requires a search warrant to be particular about both the place to be searched and the persons or things to be seized. Id. at 557. The Court further insisted that the particularity occur in the warrant itself and not in supporting documents. However, the Court explicitly stated that it was not holding that “the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeal have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.” Id. at 557–58.

The Ninth Circuit explicitly relied on this language in its Grubbs decision. It held thatbecause an affidavit incorporated by a warrant does not meet the Fourth Amendment’s particularity requirement if the affidavit is not shown to the party against whom the search is executed, Inspector Welsh’s warrant did not meet the particularity requirement because the triggering condition was not shown to Grubbs. See United States v. Grubbs, 377 F.3d 1072, 1077-79 (9th Cir. 2004). Thus the warrant was invalid, the search was illegal, and evidence of the video tape was improperly allowed by the trial judge.

In appealing to the Supreme Court, the United States essentially argues that the Ninth Circuit is wrong to read the Fourth Amendment to require an investigator to list the triggering event in the warrant or accompanying affidavits. See Brief for Petitioner at 13. The government notes that the particularity discussed in Groh only pertains to the places to be searched and the persons or things to be seized. Id. It argues that the Ninth Circuit was wrong to extend that requirement to triggering events in anticipatory warrants. Id. Where the search occurred after the triggering event transpired as anticipated, the government contends that the warrant meets the probable cause requirements of the Fourth Amendment, and the particularity requirement is irrelevant as to the triggering event itself. Id. Moreover, the United States believes the Ninth Circuit was wrong to allow a policy judgment regarding the amount of information that must be given to the subject of a search to supplant the text of the Fourth Amendment.

Determining the requirements of the Fourth Amendment is essentially a question of constitutional interpretation. In fact, this case demonstrates the limitations of interpreting the Constitution based on the “Framers’ intent” (also called originalist constitutional interpretation). See, e.g., Jesse H. Choper et al., Consitutional Law: Cases, Comments, Questions 394-98 (Ninth Ed. 2001) (discussing Roe v. Wade from interpretivist and non-interpretivist perspectives). Often associated with judicial conservatism, originalism seeks to interpret the Constitution based on the intentions of its drafters, and to limit the rights enumerated in the Constitution to those expressly stated therein. Id. But, applying originalist principles to problems not in existence when the Constitution was written is problematic. Not only did anticipatory warrants not exist at the time the Constitution was drafted, but today’s notion of a police department (and, more generally, law enforcement), would have been a complete mystery to the Framers. See Brief for Petitioner at 19, n8. Thus, arguments based on how the “founding fathers” intended Constitutional language to apply to modern controversies are often of limited value.

In the end, the question before the court is simply who is better positioned to monitor law enforcement agencies when they are executing anticipatory warrants. The Ninth Circuit seems to believe that the individual citizen has a constitutional right to perform this function by checking a warrant not only to be sure that it accurately and sufficiently describes the place to be searched and the items to be seized, but also that the required triggering event has occurred. Other courts, and the United States as Petitioner, believe that function is adequately addressed by the judicial branch in issuing the warrant conditioned on the occurrence and in scrutinizing the legality of such searches in litigation after the fact, and they see no constitutional requirement vesting such a right in each and every citizen.


The Court appears poised to determine whether the Fourth Amendment requires—or even allows for—an enumeration of the triggering event in the language of an anticipatory warrant or accompanying documents, shown to the party against whom such a warrant is executed. Since a strictly originalist reading of the Amendment might begin and end by simply noting that the Constitution creates only two particularity requirements, the Ninth Circuit reached its verdict by reaching beyond the plain language of the Fourth Amendment and identifying important concerns about the abuse of police power. The Supreme Court must weigh these policy concerns and consider whether they are adequately addressed by the Fourth Amendment’s probable cause requirements. In so deciding, the Court should provide sufficient guidance to resolve the current split among the Federal Circuit Courts of Appeal.

Written by: Craig Newton

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