The defendant purchased contraband from a web site operated by an undercover officer. The government sought an anticipatory search warrant. The contingency of the search was based on probable cause that would exist if “the parcel has been received by a person(s) and has been physically taken into the residence.” The magistrate accepted the affidavit and issued a search warrant. The search occurred two days later after the defendant’s wife signed for the parcel and took it into the premises.
Whether a warrant can be issued based on probable cause that is not yet in existence (but is anticipated)?
Yes. The Fourth Amendment’s requirement that “no Warrants shall issue, but upon probable cause” demands probable cause to exist at the time of the search, not the issuance.
The Supreme Court held that probable cause to sustain a search warrant need only be present at the time the search is conducted. In this light, all search warrants are “anticipatory” in that the government has established probable cause that the offending items will be present at the time of the search. The Court stated that “[A]nticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.” Anticipatory warrants additionally require a condition to exist before the search warrant can be executed.
547 U.S. 90, 126 S. Ct. 1494 (2006)