- The Washington Times - Tuesday, March 21, 2006

The Supreme Court yesterday ruled in favor of police who obtained a search warrant for a man’s home in anticipation that he would accept mail delivery of child pornography he ordered as part of a sting operation.

The unanimous ruling in the case United States v. Grubbs, said such “anticipatory” warrants obtained by police do not violate the Fourth Amendment rights protecting individuals from unlawful searches and seizures.

Writing for the court, Justice Antonin Scalia said police can obtain such a warrant prior to the actual commission of a crime as long as they have probable cause to believe an individual will commit a crime — or that illegal material will be at the individual’s property when the search is conducted.

The case centered on a 2002 child-pornography sting operation in California, in which a U.S. postal inspector posing as an illegal-porn distributor received a $45 cash order from Jeffrey Grubbs, who sought mail delivery of a sexual movie featuring a child.

Upon receipt of the cash order, but prior to the mail delivery of the movie, inspectors obtained an anticipatory warrant to search Grubbs’ home. An affidavit presented by an inspector to a magistrate judge acknowledged the search could only be “triggered” if someone at the home physically accepted delivery of the movie.

When a postman subsequently delivered a package containing the movie to Grubbs’ wife, police quickly searched the home and arrested Grubbs for possessing child pornography.

Grubbs pleaded guilty to one count of child pornography, but argued in District Court that the search was invalid because the warrant made no mention of the “triggering events” that would justify it. He also argued that police had unconstitutionally failed to present him with the affidavit explaining what the triggering event was — that his wife had accepted delivery of the movie.

The judge denied a motion by Grubbs to suppress the evidence. But the 9th U.S. Circuit Court of Appeals then reversed the ruling, finding that police are constitutionally required to present a written explanation of such triggering events to any person whose property is being searched before the search is executed.

The Supreme Court disagreed yesterday. “This argument assumes that the executing officer must present the property owner with a copy of the warrant before conducting his search,” Justice Scalia wrote. “In fact, however, neither the Fourth Amendment nor … the Federal Rules of Criminal Procedure imposes such a requirement.”

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