Interest and Perspective

Today J. Scalia writes a unanimous opinion setting the court up to veto warrantless wiretapping of the type that "casts a wide net" by datamining all ordinary conversations, in U.S. v. Grubbs, __ U.S. __ (Mar. 21, 2006), No. 04-–1414. Delineating the standard for probable cause needed to issue an "anticipatory" warrant to search a house which would receive child porn in the mail (after a sting set up by the USPS & local cops), the Court writes:

"Anticipatory 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. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered— though for any single location there is no likelihood that contraband will be delivered.)

"Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. It must be true not only that if the triggering condition occurs “there is a fair probability that contraband or evidence of a crime will be found in a particular place, . . . but also that there is probable cause to believe the triggering condition will occur."

So a warrant-issuing court (even a secret one, presumably) must believe that a party on the phone is actually a terrorist or that some other crime will occur (e.g., a RICO violation of planning a conspiracy, etc.), not just that there are terrorists who use phones.

Well, that's all common sense, right? Of course that such a passive search of all telecommunications would be illegal! Of course the poisonous fruits of such searches couldn't be used to secretly lock us up without a day in court! Hmm . . . but that's what happening, or at least what the administration wants to allow . . . how's that work? Newsflash, ladies: the Fourth Amendment has been neutered over the last 20 years -- this small statement is actually something to be happy about. Until the 5-4 decision, again written by Scalia, comes along to distinguish away some more common sense. Hopefully even he can't go back on this one. But see Summerlin v. Schriro (2005), wherein J. Scalia used his vote to reject application of the Ring decision, which in 2002 required that death sentences be handed down by a jury, to pre-Ring cases (given the high-falutin' language in Ring the Schriro decision is just appalling in how clear it makes the Court's occassionally-apparent hypocrisy).