§ 4.2.8 Anticipatory Search Warrants & Time for Execution and Return Generally
1. Anticipatory Warrants ? General Rule. “An anticipatory warrant is a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.” United States v. Grubbs, 547 U.S. 90, 126 S. Ct 1494 (2006) (upholding search based on anticipatory warrant to search defendant’s home after child pornography tape was delivered by undercover officer) (internal citation omitted). Anticipatory warrants are constitutional. Id. “[W]hen an anticipatory warrant is issued, the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed. Id (internal quotations and citations omitted). The “triggering” event for an anticipatory warrant does not need to be set forth in the warrant itself, just in the affidavit. Id.
Arizona has approved the use of anticipatory warrants. State v. Crowley, 202 Ariz. 80, 84, 41 P.3d 618, 622 (App. 2002) (Div. 2) (noting Arizona Supreme Court has “confirmed the constitutionality in this state of anticipatory search warrants”), citing State v. Berge, 130 Ariz. 135, 136, 634 P.2d 947 (1981).
Anticipatory warrants are “no different in principle than ordinary warrants,” and “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.” Grubbs, supra. Where the anticipatory warrant places a condition (other than the mere passage of time) upon its...
