Vanderbilt Law Review

First Page



The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures," and provides that "no War-rants shall issue, but upon probable cause."' Although its language is relatively clear, the application of the Fourth Amendment has created more controversy than the application of perhaps any other constitutional amendment.' Given the questions raised by a police-endorsed practice of anticipatory search warrants,' the search and seizure debate is far from over.

An anticipatory search warrant is a warrant based on a showing of probable cause that particular evidence of a crime will exist at a specific location in the future. Challenges to the validity of prospective search warrants generally focus on the absence of present probable cause. Finding that the benefits associated with this investigative device out-weigh any inherent uncertainties, most lower courts have held that the use of anticipatory search warrants under limited circumstances is not unconstitutional per se. The United States Supreme Court, however,has never addressed the constitutionality of prospective search warrants. A Supreme Court decision on anticipatory search warrants would present the opportunity to reexamine the framework of the Fourth Amendment.

In theory, Fourth Amendment jurisprudence has sought to balance individual privacy interests against law enforcement interests., Recent decisions, however, have disturbed the search and seizure equilibrium by favoring the government's interest in law enforcement over individual privacy interests.'° A Supreme Court decision on anticipatory search warrants could restore the traditional balance underlying the Fourth Amendment by reexamining issues raised by prospective search warrants such as the warrant requirement" and the present probable cause inquiry. The Court also could provide much-needed guidance on broader search and seizure concerns such as the probable cause doctrine" and the exclusionary rule. Moreover, a comprehensive examination of anticipatory search warrants by the Supreme Court would bring greater stability to search and seizure jurisprudence.

This Recent Development attempts to analyze the constitutionality of anticipatory search warrants in a manner that allows for a critical examination of the current status of the Fourth Amendment. Part II examines the Fourth Amendment issues raised by prospective search warrants through a discussion of two recent lower court decisions. Part III charts the erosion of the Fourth Amendment doctrines pertinent to anticipatory search warrants. Part IV discusses the multifactor test proposed in United States v. Garcia for determining the validity of prospective search warrants. Part V demonstrates how the Supreme Court could reaffirm the traditional values of the Fourth Amendment by carefully limiting the constitutional validity of anticipatory search warrants.Part VI concludes that prospective search warrants could fit within the constitutional framework in a way that helps attain a proper balance of the interests underlying the Fourth Amendment.