September 28, 2005

ORIN KERR: “[Y]ou can bet that Justice Breyer will uphold the basic idea of anticipatory warrants. Shortly before he became a Justice, Breyer approved anticipatory warrants under the Fourth Amendment. . . . Note how Breyer replaces the textual requirement that ‘no Warrants shall issue, but upon probable cause’ with a somewhat different inquiry into whether the warrant ‘can help assure that the search takes place’ when probable cause exists.”