U.S. v. Otero

• Decision Date: 28 April 2009
• Docket Number: No. 08-2154.,08-2154.
• Citation: 563 F.3d 1127
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Loretta OTERO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

563 F.3d 1127

UNITED STATES of America, Plaintiff-Appellant, v. Loretta OTERO, Defendant-Appellee.

No. 08-2154.

United States Court of Appeals, Tenth Circuit.

April 28, 2009.

Fred J. Federici, Assistant United States Attorney, Las Cruces, NM, (Gregory

J. Fouratt, United States Attorney, and Terri J. Abernathy, Assistant United States Attorney, Las Cruces, NM, with him on the briefs), for Plaintiff-Appellant.

Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellee.

Before McCONNELL, HOLLOWAY and BALDOCK, Circuit Judges.

McCONNELL, Circuit Judge.

While neither rain nor sleet nor snow could keep the residents along Postal Highway Contract Route 64 in Los Lunas, New Mexico from receiving their mail, the temptations of mail fraud and credit card theft were a different story. Loretta Otero, the assigned postal carrier for that route, was identified as the culprit and charged with a number of crimes arising out of her alleged theft. At trial, she moved to suppress two incriminating documents uncovered during a search of her computer on the grounds that the warrant authorizing the search lacked sufficient particularity. The district court agreed and suppressed the evidence. The government filed this interlocutory appeal under 18 U.S.C. § 3731. While we agree with the district court that the warrant was invalid for lack of particularity, we hold that the good faith exception to the exclusionary rule should apply and, accordingly, we reverse.

I. Background

In February 2001, a number of residents along Postal Highway Contract Route 64 began to lodge complaints that their mail was not being delivered. Specifically, they complained that they were missing credit cards, personal identification numbers, and billing statements. These residents had also noticed a number of unauthorized cash withdrawals from their accounts. Ms. Otero had been the assigned postal carrier on Postal Highway Contract Route 64 for more than thirteen years.

Understandably suspicious, Postal Inspector Stephanie Herman devised an investigation. On March 13, 2002, she prepared two test letters that appeared to be from credit card companies and were addressed to residents on Ms. Otero's route. Inspector Herman then conducted surveillance of Ms. Otero as she made her deliveries, confirming that the two test letters were never delivered. When Ms. Otero completed her route, returned to the Los Lunas Carrier Annex, gathered her personal belongings, and left the building, Inspector Herman stopped her in the parking lot and inspected her bags. Inside the bags Inspector Herman found not only the two test letters, but also six other pieces of First Class Mail, all addressed to residents on Ms. Otero's route and all from credit card companies. Ms. Otero was immediately placed on suspension and another carrier took over her route. Although Ms. Otero had been relieved of her delivery duties, residents reported that a week after her suspension she in fact continued making deliveries, though only of a very particular type of letter: credit card-related mail with outdated postmarks.

On March 27, 2002, Inspector Herman prepared a search warrant for Ms. Otero's residence. Before bringing it to the magistrate judge, she took the warrant to an Assistant United States Attorney so that he could review it and confirm "that all of the information was there, ... [that] there was probable cause and that it was legally correct." App. 127. Only after obtaining the AUSA's approval did she submit the warrant to the magistrate judge. The key portion of the warrant outlining the scope of the search was Attachment B, which read in full:

ITEMS TO BE SEIZED:

1. Any and all mail matter addressed to residents of Highway Contract Route 064 in Los Lunas, New Mexico.

2. Any and all credit cards, credit card receipts and/or other records bearing names, addresses and/or credit card numbers of known victims and other residents from Highway Contract Route 064 in Los Lunas, New Mexico.

3. Any and all credit cards, credit card invoices, receipts, statements, affidavits of forgery, pre-approved offers, applications, correspondence, automatic teller machine (ATM) receipts and/or other records related to credit card or other accounts at financial institutions and/or businesses for individuals other than residents of 123 La Ladera Rd., Los Lunas, NM 87031 [Ms. Otero's address].

4. Any and all mail matter or correspondence addressed to individuals other than residents of 123 La Ladera Rd., Los Lunas, NM 87031.

5. Any and all materials including but not limited to letters, correspondence, journals, records, notes, data and computer logs bearing victim information and/or other information related to or pertaining to the theft of mail, the fraudulent credit cards, bank fraud and conspiracy including but not limited to credit card offers, receipts, credit card statements, financial statements, and financial transaction records.

COMPUTER ITEMS TO BE SEIZED

6. Any and all information and/or data stored in the form of magnetic or electronic coding on computer media or on media capable of being read by a computer or with the aid of computer-related equipment. This media included floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes, laser disks, video cassettes and other media which is capable of storing magnetic coding, as well as punch cards, and/or paper tapes and all printouts of stored data.

7. Any and all electronic devices which are capable of analyzing, creating, displaying, converting, or transmitting electronic or magnetic computer impulses or data. These devices include computers, computer components, computer peripherals, word processing equipment, modems, monitors, cables, printers, plotters, encryption circuit boards, optical scanners, external hard drives, external tape backup drives and other computer-related electronic devices.

8. Any and all instructions or programs stored in the form of magnetic or electronic media which are capable of being interpreted by a computer or related components. The items to be seized include operating systems, application software, utility programs, compilers, interpreters and other programs or software used to communicate with computer hardware or peripherals either directly or indirectly via telephone lines, radio or other means of transmission.

9. Any and all written or printed material which provides instructions or examples concerning the operation of the computer systems, computer software and/or any related device, and sign-on passwords, encryption codes or other information needed to access the computer system and/or software programs.

App. 63-64. Inspector Herman attached an affidavit in which she stated that, in her experience, "people engaged in this type of criminal activity often keep records on the computers, including the hard drive and disks," App. 69, and in which she explained the process for off-site recovery of such records and said that the search would "make every effort to review and copy only those programs, directories, files, and materials that are instrumentalities and/or evidence of the offenses described herein." App. 70. That affidavit, however, was not explicitly incorporated into the warrant.

The magistrate judge signed the warrant and Inspector Herman executed it on March 28, 2002. She seized a computer hard drive, eighty-eight floppy disks, and two compact disks, all of which she sent to Robert Werbick, a forensic computer analyst with the Postal Inspection Service. Inspector Herman also sent a copy of the warrant, the application and affidavit in support of the warrant, and a cover letter explaining that the "search warrant was for items relating to the theft of credit cards and related correspondence from the mail on Highway Contract Route (HCR) 064." App. 72. The letter instructed Inspector Werbick to ascertain "[w]hether information described in Attachment B of the search warrant exists within the files on the hard drive, the floppy disks or the CDs." Id. She also included a list of known victims and a list of the names and addresses of persons along the delivery route.

Inspector Werbick conducted a keyword search of the hard drive and disks, using the list of victim names and credit card information that Inspector Herman had provided him. He did not, however, place a date restriction on his search that would limit the search only to files created during the time of the suspected credit card fraud. When the search generated a "hit," Inspector Werbick would examine the hit to determine whether or not it fell within the scope of the warrant. Most of the hits turned out to be "false hits." For example, a search based on a resident with the last name "Arnold" would also pull up files associated with "Arnold Schwarzenegger" or "Arnold Palmer." Two of the hits, however, uncovered highly pertinent information that someone had tried to delete from the hard drive. One was a credit card log that listed fourteen names, some of whom were known victims, with accompanying headings such as "Pin," "Account Number," "Credit Limit," and "Address." The second was a list of names and addresses of individuals along Ms. Otero's route. Both of these files were found in the "unallocated space" of the hard drive, where deleted data is stored before it is then overwritten with new data. According to Inspector Werbick, a date restriction could not have been used in a search of unallocated space.

Ms. Otero was charged with a number of crimes, including theft or receipt of stolen mail in violation of 18 U.S.C. § 1708, theft of mail by an officer or employee of the postal service in violation of 18 U.S.C. § 1709, obstruction of correspondence in violation of 18 U.S.C. § 1702, and devising a scheme or artifice to defraud in violation of 18 U.S.C. §§ 1341 and 1346. At trial she moved to suppress, as the fruits of an invalid warrant, the two files uncovered from her hard...