Editore"s Note
Tilting at Windmills

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August 2, 2004
By: Kevin Drum

ANTICIPATORY WARRANTS....Over at Volokh, Orin Kerr learns something new and disturbing:

I have read a lot of Fourth Amendment cases over the last few years, but today I learned something new: several courts of appeals have allowed the government to obtain and execute "anticipatory" search warrants. According to these cases, the government can get a warrant even if their case for probable cause hinges on some future event. If the future event occurs, the warrant becomes operative and they can execute the search. If the future event does not occur, then the warrant is not yet operative and they cannot execute the search.

As Orin points out, the problem with this is that a "future event" isn't necessarily a simple, clear-cut incident. It might be something that's unmistakably black-and-white, but it also might be something based on the suspect's behavior that's a bit of a judgment call.

And that's disturbing. The whole point of a warrant is that it prevents police from making their own judgment calls and requires them to make their case to a neutral judge if they want to execute a search. I wonder how long this has been going on and how common it is?

Kevin Drum 7:39 PM Permalink | Trackbacks

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