U.S. v. McGrew

• Decision Date: 12 September 1997
• Docket Number: No. 96-10342,96-10342
• Citation: 122 F.3d 847
• Parties: 97 Cal. Daily Op. Serv. 7353, 97 Daily Journal D.A.R. 11,856 UNITED STATES of America, Plaintiff-Appellee, v. Chong Hyon McGREW, aka Chong Hyon Park, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 847

122 F.3d 847

97 Cal. Daily Op. Serv. 7353, 97 Daily Journal

D.A.R. 11,856

UNITED STATES of America, Plaintiff-Appellee, v. Chong Hyon McGREW, aka Chong Hyon Park, Defendant-Appellant.

No. 96-10342.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 8, 1997.

Decided Sept. 12, 1997.

Curtis C. Van de Veld, The Vandeveld Law Offices, Agana, Guam, for Defendant-Appellant.

Karon V. Johnson, Assistant United States Attorney, Agana, Guam, for Plaintiff-Appellee.

Appeal from the United States District Court for the District of Guam; John S. Unpingo, District Judge, Presiding. D.C. No. CR-96-00014-JSU.

Before: FLETCHER, BOOCHEVER, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Defendant-Appellant Chong Hyon McGrew was convicted in the District Court of Guam on a number of methamphetamine felonies. She appeals her conviction, contending, inter alia, that the district court erred in declining to suppress evidence the government obtained in its search of her residence. We conclude that the search was invalid and, therefore, reverse McGrew's conviction. ¹

I. Background

On the strength of an affidavit by DEA agent Jonathan Y. Andersen stating that he believed McGrew was involved in drug trafficking, a magistrate approved a warrant to search McGrew's residence. The warrant failed to specify any type of criminal activity suspected or any type of evidence sought. In the space provided for that information, the warrant referred the reader to the "attached affidavit which is incorporated herein."

The day the warrant was issued, the agents, including agent Andersen, executed it and seized several incriminating items from McGrew's residence, including a glass tube with drug residue, notepads, cash, jewelry, plastic bags, and an apartment lease. Nothing in the record suggests whether the agents brought a copy of the affidavit to the search. What the record clearly shows, however, is that McGrew was present during the search, but neither then nor at any time thereafter did the government show her the affidavit supporting the search. In its brief to the district court "the government freely concedes its agents did not serve a copy of the affidavit on defendant January 10, 1996. It has never done so, it is not required to do so, and for the safety of its cooperating witnesses would never do so."

Prior to trial, McGrew filed a motion to suppress the evidence obtained in the search, arguing that without the affidavit the warrant lacked the particularity required by the Fourth Amendment. The district court denied the motion, stating that the affidavit was sufficiently particular and that no legal authority required executing officers to affix the affidavit to the general warrant. Therefore, the court held, the search and seizure were valid. The government introduced at trial the evidence gathered in the search, and DEA special agents testified extensively based on the seized items.

II. Analysis

The district court's denial of McGrew's motion to suppress contradicts a long line of this circuit's clearly established Fourth Amendment precedent. The district court erred in failing to suppress the evidence that the government agents obtained in the search of McGrew's residence.

The Fourth Amendment dictates that a search warrant must be sufficiently particular and not overbroad. See, e.g., Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2747, 49 L.Ed.2d 627 (1976); United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). The particularity requirement safeguards the right to be free from unbounded, general searches. United States v. Hillyard, 677 F.2d 1336, 1339 (9th Cir.1982). Thus, to pass constitutional muster, a warrant "must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized." Spilotro, 800 F.2d at 963.

Here, the search warrant contained absolutely no description of the types of items sought, or even of the types of crimes for which it sought evidence. ² The warrant only referred to an "attached affidavit which is incorporated herein." The government, however, has offered no evidence that the affidavit or any copies were ever attached to the warrant or were present at the time of the search of McGrew's home, even though agent Andersen, the affiant, was present at the search.

Moreover, while the affidavit was expressly "incorporated" into the search warrant, the government openly admits that its agents never served a copy of the affidavit on McGrew. The government argues that so long as its agents are aware of the contents of the affidavit listing the items they may seize, the Fourth Amendment's particularity requirement is satisfied. Even assuming that the agents were aware of the contents of the affidavit--which is highly questionable ³--this argument is incorrect.

The well settled law of this circuit states that a "search warrant may be construed with reference to the affidavit for purposes of satisfying the particularity requirement if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit therein." Hillyard, 677 F.2d at 1340; see also United States v. Van Damme, 48 F.3d 461, 466 (9th Cir.1995) (invalidating warrant on these grounds); United States v. Towne, 997 F.2d 537, 544-47 (9th Cir.1993) (reaffirming rule and discussing other cases doing same); Spilotro, 800 F.2d at 967 (holding that affidavit could not cure overbroad search warrant because it was not attached to it).

The rule requiring affidavits to accompany warrants lacking particularity serves not one, but two aims: "The purpose of the accompanying affidavit clarifying a warrant is both to limit the officer's discretion and to inform the person subject to the search what items the officers executing the warrant can seize." United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (emphasis added), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987); accord Center Art Galleries--Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9th Cir.1989) (attached affidavit "assures that the person being searched has notice of the specific items the officer is entitled to seize" (internal quotation omitted)). ⁴ Because the agents never served a copy of the affidavit on McGrew, the second goal was entirely unsatisfied here. Neither, in all likelihood, was the first; this court has held expressly that "neither purpose is served" when the affidavit fails to accompany the warrant. Hayes, 794 F.2d at 1355; see also infra note 5.

Next, we reject the suggestion the government made in the district court that, in order to protect witnesses, it may simply refuse to produce an affidavit that it contends renders an otherwise general warrant lawful. If the government wishes to keep an affidavit under seal, it must list the items it seeks with particularity in the warrant itself....