U.S. v. Sears

• Decision Date: 20 June 2005
• Docket Number: No. 03-10573.,03-10573.
• Citation: 411 F.3d 1124
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John SEARS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

411 F.3d 1124

UNITED STATES of America, Plaintiff-Appellee, v. John SEARS, Defendant-Appellant.

No. 03-10573.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2004.

Filed June 20, 2005.

Amber S. Rosen, Office of the U.S. Attorney, San Jose, CA, for the plaintiff-appellee.

Stuart D. Hanlon, San Francisco, CA, for the defendant-appellant.

Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. CR-01-00070-MJJ.

Before KOZINSKI, W. FLETCHER, and BYBEE, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

In this case, we must determine the proper remedy for a search pursuant to a warrant that, due to police error in preparing the document for distribution, contained eight words not reviewed by a neutral magistrate. The eight words were "or nearby" (twice) and "but not limited to." It is undisputed that those words expanded the scope of the search and violated the particularity requirement of the Fourth Amendment. Defendant John Sears appeals the district court's decision to remedy this Fourth Amendment violation by suppressing only that evidence seized pursuant to the unreviewed portions of the warrant. We affirm. Because the Fourth Amendment violation was not flagrant, and the invalid portions of the warrants were relatively insignificant, we hold that blanket suppression was not required.

I. Background

On January 4, 2001, San Francisco Police Department ("SFPD") Officer Jon Kasper sought and received a warrant to search Sears's person, vehicles, residences, and related storage spaces for evidence of cocaine trafficking. The warrant referred to an attachment, Exhibit A, specifying the items the officers were authorized to seize.

In the version of the warrant approved by San Francisco Superior Court Judge Leonard Louie, Exhibit A follows Officer Kasper's statement of probable cause and begins at the bottom of page 6 of the search warrant and affidavit. Officer Kasper testified that he created Exhibit A by clicking on a file named "cocaine exhibit" and merging it with the file containing the rest of the search warrant. Officer Kasper further testified that, unbeknownst to him at the time he prepared the warrant for Judge Louie's approval, the police department computer contained multiple versions of Exhibit A. Judge Louie approved the warrant containing the December 1998 version of Exhibit A.

In the course of litigating Sears's March 6, 2002 motion to suppress cocaine seized in the subsequent search,¹ it was discovered that the version of Exhibit A approved by Judge Louie was not the version of Exhibit A given to the searching officers. After receiving Judge Louie's approval, Officer Kasper prepared copies of the warrant for the search team. Officer Kasper testified that as a matter of standard SFPD practice, officers do not generally serve the statement of probable cause along with the rest of the search warrant. He also testified that because it was typical for the description of the items authorized for seizure (contained in Exhibit A) to be written on a separate page from the statement of probable cause, he sought to eliminate that part of the probable cause statement that spilled over to the first page of Exhibit A. He therefore printed out a fresh copy of Exhibit A on a separate sheet of paper instead of making copies of Exhibit A from the original set of papers signed by Judge Louie. Officer Kasper testified that in creating the fresh copy he inadvertently attached the July 1997 version of Exhibit A, rather than the December 1998 version approved by Judge Louie, to the warrant given to the search team.

The version of Exhibit A given to the search team differed from the version of Exhibit A actually approved by Judge Louie. Exhibit A, in the form given to the search team, authorized a search for

[a]ll articles of personal property tending to establish and document sales of cocaine, consisting in part, of articles of personal property tending to establish the identity of persons in control of premises, vehicles, storage areas or containers located at, or nearby, or related to the subject premises where cocaine may be hidden. All vehicles, storage areas or containers located at, or nearby, or related to the subject premises where cocaine may be hidden; all articles of personal property tending to establish the location of such premises, vehicles, storage areas or containers where cocaine may be found or secreted, consisting of and including but not limited to, utility bills and receipts, rent receipts, canceled mail envelopes and keys.

(Emphasis added.) The italicized phrases indicate language not included in the version of Exhibit A shown to and approved by Judge Louie. Except for the addition of the italicized phrases, the two versions of Exhibit A were identical. Officer Kasper testified that he did not learn that the two versions of Exhibit A differed until a few weeks prior to the July 31, 2002 evidentiary hearing on the discrepancies between the two attachments.

After preparing copies of the warrant, Officer Kasper conducted a search warrant briefing. At the briefing, he correctly informed the assembled officers that he had "a search warrant signed by the Honorable Judge Louie of the San Francisco Superior Court" for "the person of John Sears" and "his residences at 7 Maddux and 84 Latona." Officer Kasper was not present during the search of Sears's room at 7 Maddux, which turned up currency, crack and powder cocaine, and narcotics packaging and paraphernalia. On January 5, 2001, Officer Kasper filed a return to search warrant form. In this form, he recorded the locations searched as "84 Latona" and "7 Maddux," and noted that "all items [were] seized from 7 Maddux." No items were seized pursuant to the "or nearby" or "but not limited to" language of Exhibit A.

When Sears discovered the discrepancies between the warrant as issued and the warrant as executed, he moved to suppress "for an illegal search based on a warrant that was never approved by the judge." After a hearing, the district court found Officer Kasper's account credible. The district court also stated that the wrong version of Exhibit A was attached to the warrant and taken to the site of the search "by mistake."

Based on New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), and United States v. Clark, 31 F.3d 831 (9th Cir.1994), the district court ultimately held that "only those items seized pursuant to the overbroad part of the warrant would be subject to suppression." Because no evidence was seized pursuant to the overbroad parts of the warrant, the district court effectively denied Sears's motion to suppress. Sears pled guilty to possession of cocaine base and cocaine powder in violation of 21 U.S.C. § 841(a)(1), reserving his right to appeal the district court's ruling on his suppression motion.

We review a motion to suppress de novo. United States v. Jones, 286 F.3d 1146, 1150 (9th Cir.2002). We review the district court's underlying factual findings for clear error. Id.

II. Analysis

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The Supreme Court has held that "the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant." Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). We have "found warrants to lack sufficient particularity when they have failed to specify the items to be seized, or the location to be searched." United States v. Hotal, 143 F.3d 1223, 1226 (9th Cir.1998) (citation omitted).

The particularity requirement serves several purposes. It prevents "a general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It also "assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." Groh, 540 U.S. at 561, 124 S.Ct. 1284 (quoting United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977)); see also Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) (stating that particularity ensures that "nothing is left to the discretion of the officer executing the warrant") (citation and internal quotation marks omitted). We have noted that "the absence of a sufficiently particular warrant increase[s] the likelihood and degree of confrontation" between the searching officers and the individuals whose property is subject to search. Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1027 (9th Cir.2002) (as amended), aff'd, Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Finally, an invalid warrant deprives individuals "of the means to be on the lookout and to challenge officers who might have exceeded the limits imposed by the magistrate." Id.

The government concedes that the changes to Exhibit A after the warrant was approved by Judge Louie violated the Fourth Amendment's particularity requirement. However, what is at issue in this appeal is not the violation, but the remedy. The parties agree that the exclusionary rule should apply, but disagree as to its scope. The "prime purpose of the exclusionary rule is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures." Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (internal quotation marks omitted). The Supreme Court has instructed:

As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial...