Anticipatory Search Warrants: Why Must There Be Probable Cause That the Triggering Condition Will Happen?

In preparation for some upcoming teaching, I’ve been brushing up on anticipatory search warrants. Such warrants authorize a search, but only once a “triggering condition” takes place. The most common scenario involves the controlled delivery of drugs that have been intercepted in transit. The warrant authorizes the search of the destination residence, but only once the drugs have been delivered. Case law establishes that a warrant may issue only if the drugs are on a “sure course” towards delivery. This post asks why – and whether – that should be the case. The Supreme Court has ruled that anticipatory warrants are permissible. The Supreme Court of the United States approved anticipatory search warrants in United States v. Grubbs, 547 U.S. 90 (2006), a case in which a court issued a warrant authorizing the search of a home upon delivery of a videotape containing child pornography. The Court ruled that such warrants are allowed if (1) there is probable cause to believe that the triggering condition will take place, and (2) there is probable cause to believe that, once the triggering condition takes place, evidence of criminal activity will be present in the location to be searched. North Carolina law also allows anticipatory warrants. In our appellate division, State v. Smith, 124 N.C. App. 565 (1996), held that anticipatory warrants are permissible under certain conditions. The case set forth the requirements for an anticipatory warrant as follows: The anticipatory warrant must set out, on its face, explicit, clear, and narrowly drawn triggering [...]