perfidy

Orin Kerr of the Volokh Conspiracy (recently back from a long hiatus while he clerked in Federal Court) discusses the new hotness in Fourth Amendment jurisprudence: anticipatory warrants.

In a nutshell, if the police think you might have broken the law in the past, and may soon break it again, the 9th Circuit Court has decided that they may get a search warrant that they may exercise only after they think a crime has occurred. As Kerr notes,

the whole point of a warrant requirement is to have a neutral magistrate decide when probable cause exists. The decision to authorize the search is up to the judge, not the police officer. The addition of a condition precedent delegates that decisionmaking authority to the law enforcement officer, at least in part. Because the officer decides when the triggering event has occurred, the probable cause determination is no longer made entirely by the neutral magistrate.

Speaking as a layperson, that sounds right to me. The police and judiciary are two separate things, or so the opening credits to "Law & Order" tell me, and the lines between them are there for very good reasons. Correct me if I'm wrong, but if the authority to decide when probable cause exists resides even partly with the police, then the police are the final arbiters of order and law, and the courts risk becoming a rump, weakened in their ability to constrain police power. Eww.