BARRY J. PORTMAN
Federal Public Defender
MARY McNAMARA
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 556-7712
Counsel for Defendant XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
XXX XXX, and XXX XXX,
Defendant.
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No. CR 95-0196 FMS
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS TO SUPPRESS EVIDENCE AND
TO RETURNPROPERTY SEIZED
INTRODUCTION
By these motions, Mr. XXX asks the Court to suppress the fruits of the search of his home pursuant to a sweepingly overbroad search warrant that contained no time frame restrictions, no subject matter limitations, and virtually no reference to any criminal activity. The warrant authorized a boundless search of Mr. XXX's residence and captured documents and materials without discrimination as to their connection to the federal crimes alleged in the affidavit supporting the warrant. Because the search allowed by the warrant was a general rummaging through the XXX family's personal effects, it should be thrown out and all evidence seized as a result should be suppressed and returned to Mr. XXX.
FACTUAL BACKGROUND
XXX XXX is a forty year old man with a long employment history as a pilot in the airline industry. Excerpt of expired passport for XXX XXX, a true and correct copy of which is attached hereto as Exhibit A; Resume of XXX XXX, a true and correct copy of which is attached hereto as Exhibit B.
In April 1992, Mr. XXX suffered a health crisis that required emergency surgeries for a dissected aorta. University of Washington Medical Center Records, a true and correct copy of which is attached hereto as Exhibit C. The condition was spotted in a routine health examination conducted by the Federal Aviation Administration. Had it not been for the fortuity of the examination, Mr. XXX would almost certainly have died from a rupture in his aorta. Id.
Mr. XXX's health breakdown ended his career as a pilot. He could no longer get FAA approval to fly. When he recovered from the operations, Mr. XXX sought new employment. Because of his detailed knowledge of the aircraft industry, Mr. XXX started an aircraft leasing/parts business and began to represent a company called Aviex. XXX Resume at page 1. Mr. XXX's partner in this enterprise was Dan XXX, the co-defendant in this case. Affidavit of Daryl McClary in support of the Search Warrant, a true and correct copy is attached hereto as Exhibit E ("Affidavit") ¶4. Mr. XXX and Mr. XXX travelled in Viet Nam as part of their aircraft parts business. Id. ¶ 5, passim.
On May 15, 1995 Mr. XXX was arrested in the Bay area on charges of importation contrary to law (18 U.S.C. § 545); engaging in a business of importing firearms without a license (18 U.S.C. § 922(a)(1)(A)) and transportation of machine guns and destructive device in foreign commerce without a license). Mr. XXX has not as yet been arrested.
On the same day as his arrest, customs agents and ATF agents, with the assistance of local law enforcement officers conducted a search of Mr. XXX's home, 3648 73rd Avenue, S.E., Mercer Island, Washington. Department of the Treasury, United States Custom Service Report dated May 18, 1995, by agent McClary ("Customs Report"), a true and correct copy of which is attached hereto as Exhibit G. Mr. XXX lives at that address with his mother, Phyllis XXX, his wife, Jeri XXX, and his children. Affidavit, ¶¶18, 19. Agent McClary hoped to gain Mr. XXX's consent to search his house, thereby rendering a warrant unnecessary. Id. ¶ 98. That plan was abandoned, however, as Mr. XXX was never approached to consent to the search. On May 15, agent McClary swore to a 54 page affidavit in support of his application for a warrant, attached hereto as Exhibit E. The Affidavit lists information provided by a confidential informant ("CI") that Mr. XXX, after one of his trips to Viet Nam to purchase aircraft parts, offered to sell firearms on offer in Viet Nam. Affidavit ¶¶9, 10-12. At the government's request, the CI then arranged a meeting between Mr. XXX and an undercover agent from Customs ("UCA"). Id. Over the course of a year and a half, the UCA and Mr. XXX allegedly had a number of conversations, which the government monitored, in which the sale of firearms to the UCA was discussed and two shipments were delivered into the United States. Affidavit, passim.
On the same day that agent McClary swore to the Affidavit, a federal Magistrate Judge in Seattle issued a search warrant for the XXX home, and the warrant was executed later that evening. Search Warrant ("Warrant"), at true and correct copy of which is attached hereto as Exhibit D. The warrant authorizes the seizure of 15 categories of generic documents and materials. Many of these categories seek every financial and business record of Mr. XXX. None of the categories contains a time frame restriction, none contains a subject-matter limitation, none but one mentions any kind of criminal offense (the exception is paragraph 5, which requests all false identification documents -- a category not relevant to Mr. XXX, who is never alleged to have used a false identification).
When the Warrant was executed, the Affidavit, which contained the details of the investigation was not attached to the Warrant at the time of the search, nor was it provided to the executing officers, nor was it read to them. Letter by Andrew Scoble to Mary McNamara, dated June 28, 1995 at page 3, true and correct of which is attached hereto as Exhibit F. Mr. XXX was arrested and the only person home at the XXX household when the agents arrived to search was Mr. XXX's elderly mother, Phyllis XXX. Id. ¶18(f); Customs Report page 2. The search of the XXX household lasted only one and a half hours, yet seven boxes of documents and materials and a number of loose assorted papers were seized. Customs Report at 1; Search Warrant Return, attached hereto as Exhibit D. Among the items seized were the XXX family computer, computer printer and accessories, three plastic containers and a box partially filled with computer disks and numerous private papers of the XXX family. Id. The computer has subsequently searched and an unknown number of documents retrieved from the floppy disks and hard drive. No firearms were seized at the XXX home.
After the search was conducted, the government counsel advised defense counsel that the search had revealed documents that caused him to suspect that Mr. XXX had been trading in Viet Nam before the embargo had been lifted. Counsel specifically advised that he would be looking closely at these documents.
ARGUMENT
A. The Warrant Fails the Specificity Requirement of the Fourth Amendment
It is well established in this Circuit that, in order for a search to be reasonable under the Fourth Amendment, the warrant must be specific. In re Grand Jury Subpoenas, 926 F.2d 847, 856 (9th Cir. 1991). Specificity has two requirements: Particularity and breadth.
The particularity requirement demands that the warrant must "particularly describe[ ] the place to be searched and the things to be seized." U.S. Const. Amend IV. In other words, the warrant must clearly state what is being sought. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). Breadth requires that the scope of the warrant be limited by the probable cause established by the affidavit. United States v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982).
The Ninth Circuit has articulated a three-part test to determine whether a warrant meets Fourth Amendment specificity requirements: (1) whether probable cause exists to seize all of the items described in the warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and (3) whether the government was able to describe the items more particularly in light of the information available at the time the warrant was issued, United States v. Stubbs, 873 F.2d 210, 211 (9th Cir. 1989); citing, Spilotro, 800 F.2d at 963. The first of these prongs, the probable cause determination, is a breadth question, while the second and third prongs, the objective standards and the more particular description determinations, are particularity questions. To judge whether the warrant in this case passed constitutional muster, we will subject the warrant to the Spilotro test, as divided into particularity and breadth analyses. These analyses also will take into consideration the special care that should be exercised in evaluating the existence of probable cause when, as here, a warrant is executed for a person's home, as opposed to for his or her business. See, e.g., Payton v. New York, 445 U.S. 573, 585 (1980).
1. The Warrant Fails to Describe the Items to be Seized with Sufficient Particularity
The Fourth Amendment specifically prohibits the type of search which was authorized in the instant case. Indeed, the very purpose of the particularity requirement is to render impossible the kind of general search contemplated by this warrant. As the Ninth Circuit has stated,
The evil to be prohibited is the exploratory rummaging in a person's belongings . . . Particularized descriptions serve this purpose by ensuring that he discretion of the officers executing the warrant is limited, and that the person being searched has notice of the specific items the officer is entitled to seize . . . .
United States v. Towne, 997 F.2d 537, 548 (9th Cir. 1993).
The warrant here fails to bound the discretion of the officers and provides no notice to the homeowner being searched.
(a) The Warrant Contains no Objective Standards
No portion of the warrant provides the objective standards required by Spilotro to guide the executing officers in differentiating between items subject to seizure and items that were not.
The fifteen categories of items listed in the warrant fall into four groups. None of the categories contains a time restriction, none lists criminal conduct (except for paragraph 5 which seeks false identification documents not relevant to the crimes alleged in the Affidavit) and many of the categories fail even to restrict the search to documents pertinent to Mr. XXX, as opposed to his family.
The first group (¶¶ 1, 2, 4, 6, 14 and 15) contains recitations of general categories of business, travel and home documents (all financial records, all import and export documents, all telephone records, all indicia of occupancy). This group contains no time restriction, no reference to any criminal conduct whatsoever and no subject matter limitation. Indeed, ¶1 ("any and all bills of lading, air waybills... U.S. and foreign import and export documents") is not even limited to XXX XXX, but rather could sweep in the business activities of his wife, mother or anyone else conceivably connected with the house.
The second group comprises just one paragraph. It reads: "Any and all false identification documents, and any and all travel records pertaining to the persons listed on such false identification documents." It too discloses no time restrictions and no link to Mr. XXX. It differs from the first group only insofar as it discloses a type of generic wrongdoing - false identification. Again, false identification is not linked to any particular criminal conduct, nor could it be since the activity described in the Affidavit, including the travel to Viet Nam is all alleged to have been conducted in Mr. XXX's true name.
The third group (¶¶ 3, 7, 8 and 9) authorizes the seizure of documents reflecting generic weapons transactions (without limitation as to what kind of weapons) actual firearms (without any description); photographs of firearms, "foreign sites" and meetings between Mr. XXX and the co-defendant. As with the other groups no time restriction limits the seizure, it lists nocriminal conduct whatsoever (such as smuggling, importation without a license etc.) and, indeed, no particular illegal weapon (such as machine guns). This category authorizes the seizure of evidence of legitimate purchases, sales or gifts of hunting rifles. Further, in seeking photographs of "foreign sites" (¶ 9) Mr. XXX's vacation snapshots were vulnerable to seizure.
The fourth and final group (¶¶ 10-13) authorizes the unlimited seizure of computer data, computer hardware, software and instruction manuals. As with each of the preceding three categories, this group contains no time restriction and noreference to any criminal conduct whatsoever. Further, this group contains no subject matter limitation of any kind and is not limited to XXX XXX. Accordingly, it authorizes seizure of the entire family's computer material, including children's games, private correspondence, legitimate business records, birthday party invitations and the host of other private papers customarily kept on the family computer.
Each of these categories fails the Spilotro requirement of objective guiding standards for the searching officers. The warrant here is remarkably similar to the warrant recently invalidated by Judge Lynch, as affirmed by the Ninth Circuit inUnited States v. Kow, 95 D.A.R. 4732 (9th Cir. June 21, 1995).
The text of the Kow warrant is set forth below in a footnote. (1) As in Kow, the warrant here authorized seizure of every document in the XXX household and contained no guidance to the officers as to the particular items sought. Id. at 4733.
As to the first and fourth groups (business records and computer data), generic categories of the type employed here are appropriate in warrants only when they describe contraband or stolen property, but not when they describe business records. United States v. Abrams, 615 F.2d 541, 545 (1st Cir. 1980). Moreover, even in those limited instances where generic categories may be used, they may be found sufficient only where the warrant identifies with some specificity the alleged criminal conduct in connection with which the items are sought. Spilotro, 800 F.2d at 964; see also, Voss v. Bergsgaard, 774 F.2d 402, 405 (10th Cir. 1985); Stubbs, 873 F.2d at 212; Center Art Galleries v. United States, 875 F.2d 747, 750 (9th Cir. 1989).
Groups one and four clearly fail these requirements: They contain no time limitation, no subject-matter limitation, no criminal offense limitation, and as to category four, no limitation as to Mr. XXX.
The impermissible generality of groups one and four is reflected also in the lack of particularity in the second group of categories of items to be seized. Paragraph 5 (the sole paragraph in this second group) is the only portion of the search warrant to list any kind of criminal activity. Yet, the authorization for the seizure of records which reflect "false identification documents" (¶ 5) gives the searching officers total discretion to rummage through the household records to find evidence of unspecified violations of the law. This is the evil the particularity requirement was expressly intended to avoid. See, e.g. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1567 (9th Cir. 1989), cert. denied, 497 U.S. 1003 (1990).
As with the first and fourth groups of authorizing paragraphs, there is no reference in the second group to time frame for these records, and no subject-matter limitation explicitly stated or which could implicitly be inferred from other provisions in the warrant.
The language in groups one, two and four of the instant warrant is less specific than in any of the warrants held to be too general by the Ninth Circuit.
In Stubbs, the Ninth Circuit found that the affidavit provided probable cause to believe that Stubbs was committing tax fraud, but the warrant impermissibly authorized seizure of "account and business records from May, 1977, through May, 1984 relating to: master cash receipts and disbursements journal; rental commission ledgers; check books ..." Stubbs, 873 F.2d at 212. This Court found that the lack of any reference to criminal activity and the description of broad classes of documents without specific description of the seizable items rendered the warrant insufficiently particular. Id.
In Cardwell, the Ninth Circuit held a warrant insufficiently particular because it authorized the search and seizure of business papers which were the "instrumentality of violation of the general tax evasion statute, 26 U.S.C. § 7201." Cardwell, 680 F.2d at 77. The Court noted that "even the most specific descriptions (checks, journals, ledgers, etc.) are fairly general. No time or subject matter limitations existed as to these items." Id. at 78-79.
In Center Art Galleries, the Ninth Circuit held a warrant to be insufficiently particular which authorized the seizure of "documents, books, ledgers, records and objects which are evidence of violation of federal criminal law" and then enumerated various categories of documents, such as sales records, correspondence, personnel files, payroll records, etc. 875 F.2d at 749-750.
The deficiencies of groups one, two and four of authorizations mark the third group as well. Although this third group references firearms at least, it is as generic as the other three categories: It gives no time limitation, no specificity as to subject-matter or subject offense, and in paragraph 7 and most of paragraph 9, no tie to Mr. XXX. These were precisely the defects condemned by the Kow court in invalidating that warrant. The Ninth Circuit upheld Judge Lynch's suppression of the fruits of the search because the warrant as a whole
contained no limitations on which documents within each category could be seized or suggested how they related to specific criminal activity. By failing to describe with any particularity the items to be seized, the warrant is indistinguishable from the general warrants repeatedly held by this court to be unconstitutional. E.g., Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9th Cir. 1989); United States v. Stubbs, 873 F.2d 210, 211 (9th Cir. 1989)(warrant invalid "because of the complete lack of any standard by which an executing officer could determine what to seize").
Kow, 95 D.A.R. at 4733 (emphasis added). The warrant here fails this standard by an even greater margin that did the warrant inKow. In Kow, at least, of the fourteen categories of items sought to be seized, one contained an express time limitation, three contained references to criminal activity (seeking documents relating to fraud), an additional two contained subject matter limitations (seeking documents relating to transactions with particular people and entities). Yet, the absence of guidance as to which items in these categories was to be seized invalidated the warrant and the search.
The warrant in this case thus manifestly fails the second prong of the Spilotro test.
(b) The Warrant Could have Provided Particularity
The third prong of the Spilotro test asks whether the government could have described the items more particularly in light of the information available at the time the warrant was issued.
In Kow, the Ninth Circuit reiterated the well established rule that "generic classifications in a warrant are acceptable only when a more precise description is not possible." 95 D.A.R. at 4733 (internal citations omitted). The Affidavit in this case makes it abundantly clear that a far more precise description of the documents sought was possible. For instance, the Affidavit states that the alleged in activities occurred between "sometime" in 1993 and Mr. XXX's arrest in 1995. Affidavit ¶¶ 5, passim. Yet, no time restriction of any kind appears in the warrant. TheKow court strongly criticized the similar failure of the government in that case to include in the warrant the time frame set out in the affidavit. 95 D.A.R. at 4733. In addition, as inKow, the Affidavit here lists various account numbers, the names of an entity that received money for the transactions, various other shipping information, all that could have been included in the warrant to contain its scope. Id at 4734. Affidavit ¶¶57, 44, 57, 60. Also provided in the Affidavit are Thai police immigration records revealing the dates, and presumably the flight numbers of Mr. XXX's and Mr. XXX's trips to Viet Nam to Bangkok (¶76), the address, telephone number and dates of their stays at their hotel in Bangkok (¶¶78, 79) and sundry other information. None of this information was included in the warrant.
Accordingly, the instant affidavit might have supported a warrant authorizing a search for documents relating to the particular shipments/arrangements about which the government had some specific information, and limited to the years for which the government could claim that the CI and the UCA had first-hand knowledge. Rather than rely on the information he actually possessed, however, the affiant drafted a warrant which far exceeded the limits of his investigation. See Part 2, infra.
The sloppiness of the warrant cannot be redeemed by a claim that the search may have revealed documents that conceivably might have been within the scope of a properly drafted, specific warrant. As the First Circuit has noted, "the mere fortuity that the officers seized records that could have been within the permissible scope of an adequately drafted warrant cannot rehabilitate this particular warrant." Abrams, 615 F.2d at 544; 2 LaFave, Search and Seizure, 101 (1978).
The First Circuit's discussion of particularity in Abrams is instructive. There, the court held a warrant to be insufficiently particular which authorized the seizure of "certain business and billing and medical records of patients...which show actual medical services performed and fraudulent services claimed to have been performed in a scheme to defraud the United States and to submit false Medicare and Medicaid claims for payments...." Abrams, 615 F.2d at 542. The court found that the warrant could have been limited by the time period of the employee-informant's tenure at the office; moreover, in order to identify the false records, the officers could have compared patient's invoices with records of actual tests performed. Id. at 545. The Abrams court also noted that the usual method for obtaining voluminous records was by subpoena; "the government's only alternative to this procedure, however, is strict compliance with the fourth amendment's requirement of a particularized warrant." Id. at 547 (emphasis added).
2. The Warrant is so Overbroad that it Seeks Items
as to which there is no Probable Cause
The Fourth Amendment demands that the scope of the warrant and the search must be limited by the extent of the probable cause. In re Grand Jury Subpoenas, 926 F.2d at 857; United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980)("the command to search can never include more than is covered by the showing of probable cause to search.")(internal citations omitted). Thus, the third prong of the Spilotro test is that probable cause must exist to seize all of the items of a particular type set forth in the warrant. Spilotro, 800 F.2d at 963.
This Court repeatedly has invalidated warrants authorizing searches in excess of the scope of the probable cause established in the particular affidavit at issue. Kow, 95 D.A.R. 4732; In re Grand Jury Subpoenas, 926 F.2d at 857; Center Art, 875 F.2d 747;United States v. Washington, 797 F.2d 1461 (9th Cir. 1986)("where a business is searched for records, specificity is required to ensure that only the papers which evidence crime will be seized and other papers will remain private.")
The Affidavit here set forth a series of telephone calls allegedly involving Mr. XXX and the UCA. In these telephone calls, various arrangments regarding the transportation and the purchase of firearms were discussed. The Affidavit, if true, reveals a naive and confused Mr. XXX. For instance, he arranges to have the weapons leave Viet Nam not disguised in any manner, but rather, accurately described as weapons (Affidavit ¶ 30); indeed, he is unaware, until told by the UCA, that documentation is required to move the firearms from Viet Nam or to send them to the United States (Affidavit at ¶36(a) and (d)); he then asks the UCA's assistance in getting the necessary documentation (Affidavit ¶41).
Even assuming, arguendo, that these facts do not prevent the Affidavit from establishing probable cause to believe that Mr. XXX was involved in the importation of firearms into the United States without the necessary documentation between "sometime" in 1993 (Affidavit ¶ 5) through May 1995, nothing in the Affidavit establishes any other violation of the laws at any other time that would justify the sweeping warrant in this case. For example, the Affidavit plainly fails to provide probable cause to believe that every piece of computer data for every possible subject matter throughout all time, whether to do with Mr. XXX or not (Affidavit ¶¶ 10-13) was tainted with illegality. Similarly, the Affidavit does not hint at how every single financial record of XXX XXX for every possible financial transaction, throughoutall time "including (without limitation) money transmittal/transfer receipts, ledgers, wire transfer request forms, bank statements, bank deposit records, bank withdrawal records, cancelled checks . . . checkbooks, bank books" (Affidavit ¶ 2, emphasis added) could be even remotely relevant. Nor does the Affidavit provide probable cause to seize everytravel record of every vacation or legitimate business or other purpose of XXX XXX for all time. Affidavit ¶ 4. Indeed, the Affidavit acknowledges that Mr. XXX's aircraft parts business, which frequently took him to Viet Nam, and regarding which he had frequent contact with both the co-defendant and the CI, is legitimate. Affidavit ¶ 11. Neither, of course, does the Affidavit provide probable cause to take every record of everyconceivable firearms transaction, whether of a gift of a hunting rifle or not, for all time. Affidavit ¶¶3, 8 and 9. Yet, the warrant authorized the seizure of every document within each of these and other extraordinarily broad categories, without reference to any time limitation, subject limitation, or criminal offense involved.
The mere fact that a category is mentioned in the Affidavit does not establish probable cause to seize every item within that category. Accordingly, the allegation that Mr. XXX sent the UCA a fax in April 1994 indicating the approval of a permit for the firearms in Viet Nam, does not justify the seizure of every single record of a purchase or sale of a firearm by Mr. XXX throughout his entire life. Affidavit ¶ 32. Nor, to give another example, does the allegation that Mr. XXX provided the UCA in writing the account number for a company named A.T. Ltd Import export Co. Ltd for a wire transfer payment in Bangkok justify the seizure of every shred of Mr. XXX's financial records for every transaction for every year of his life. Affidavit ¶ 68(d). In short, the Affidavit did not allege, and the magistrate could not reasonably have inferred, that every item in these unlimited categories was evidence of the federal crimes enumerated in the Affidavit.
Since the warrant authorizes the seizure every document in the XXX household, it can be saved only if "the government establishes probable cause to believe that [Mr. XXX's] entire business was merely a scheme to defraud or that all the business's records are likely to evidence criminal activity." Kow, 95 D.A.R. at 4734 (citations omitted). This "permeated with fraud" doctrine does not apply where the supporting affidavit does not aver that evidence of the alleged crime is inseparable from other business documents or that the business was permeated with fraud. Center Art, 875 F.2d at 751. InKow, the Ninth Circuit held that the affidavit failed to make the "permeated with fraud" showing so as to justify the broad seizure of documents authorized by the warrant. In part, Kow relied on the fact that, as here, the government admitted that the business in question was a legitimate one. Id. Thus, the permeated with fraud doctrine does not apply and the warrant is unconstitutionally overbroad.
3. The Warrant cannot be Salvaged by the Doctrine of Severance
The Ninth Circuit has held that, even if some categories of the warrant are overbroad, if others are valid, evidence seized pursuant to the valid sections should not be suppressed. United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir.) cert. denied, 466 U.S. 977 (1984). The Ninth Circuit also recognizes, however, that severance is not always possible. Kow, 95 D.A.R. at 4734. If no portion of the warrant is sufficiently particular to pass constitutional muster, then total suppression is required. Id., citing Cardwell, 680 F.2d at 78. Here, as in In re Lafayette Academy, 610 F.2d 1, 6 (1st Cir. 1979) "the description of no item is free from Fourth Amendment difficulties."
None of the warrant's fifteen categories contains any time restriction. None, except for paragraph 5, authorizing "[a]ny and all false identification documents", references any criminal law violation. As for paragraph 5, it fails to indicate whosefalse identification is being sought; if it is Mr. XXX's, it is not relevant to the charge of weapons smuggling, since all of the conversations, transactions and travels itemized in the Affidavit are in Mr. XXX's true name. Of the firearms paragraphs (¶¶3, 7-9), none has any subject-matter limitation that ties them to firearms smuggling, one fails to mention Mr. XXX at all (¶7 -- any and all firearms parts) and another lists him only for part of what is being sought (¶9 -- not for photographs of foreign sites, but only for meetings with his legitimate aircraft business partner, Mr. XXX). Of course, the paragraphs seeking every computer data under the sun (¶¶10-13) fail to mention Mr. XXX at all. This is also true of paragraph 15, seeking indicia of occupancy.
Thus, no aspect of the instant warrant was sufficiently particular, and severance is inappropriate. Even if the Court were to find certain limited portions of the warrant to be adequately particularized, however, "[i]n the context of a far more extensive search, all of which is invalid as too general, the seizure may not stand." Spilotro, 800 F.2d at 967-68. The Ninth Circuit in Kow ruled that the overall permission granted by the warrant was too broad to be saved by the handful of specific categories in the warrant:
Only Category G, authorizing seizure of tax returns since 1983, was limited as to time. Although Category M, authorizing the seizure of all documents related to HK VIdeo's dealings with other businesses sublicensed by HK T.V., arguably was not overbroad, "severance is not available when the valid portion of the warrant is a "relatively insignificant part" of an otherwise invalid search."
Kow, 95 D.A.R. at 4743 (citations omitted). Since the Kowwarrant was more specific than the warrant in this case, this warrant certainly cannot be saved by the few uncontained, unlimited and generic references to firearms.
B. The Warrant is so Facially Overbroad that the "Good Faith" Exception does not Apply
Although evidence seized pursuant to a facially valid search warrant which is later held to be invalid may nevertheless be admissible if officers conducting the search acted in reasonable reliance on the warrant, the government bears the burden of proving such reasonable reliance. Kow, 95 D.A.R. at 4734 (citations omitted).
Where a warrant is so overbroad, however, as to authorize the seizure of virtually every piece of documentation available, the court vigilantly scrutinizes the good faith of the officers executing it. Kow, 95 D.A.R. at 4734. We submit that, like the warrant in Kow, the sweeping warrant in this case was facially invalid and cannot be saved by the "good faith" exception. This conclusion is compelled by the fact that here, unlike in Kow, the warrant was for Mr. XXX's home.
In addition, as in Kow, the good faith exception cannot be resuscitated by looking to the Affidavit. The Affidavit was not
attached to the warrant at the time of the search nor was it read or provided to the executing agents. Letter by Andrew
Scoble to Mary McNamara, dated June 28, 1995, at page 3, a true and correct copy of which is attached hereto as Exhibit
C. Accordingly, under Kow, a finding of good faith reliance is precluded. Id., at 4734-35. (2) See also Towne, 997 F.2d
at 545-46; Center Art, 875 F.2d at 750.
/ / /
CONCLUSION
For the reasons set forth above, Mr. XXX respectfully asks this Court to suppress the fruits of the unconstitutional search
of his home on may 15, 1995 and to return the property improperly seized in that search.
Dated: June 28, 1995 Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
MARY McNAMARA
Assistant Federal Public Defender
1. 1 The Kow warrant authorized the seizure of:
A. Bank statements, cancelled checks, deposit slips, wire transfer records, cashier's checks, money orders, checkbooks or check registers, and other records relating to bank transactions;
B. Journals or records reflecting funds received or funds disbursed;
C. Ledgers or other records summarizing financial transactions;
D. Journals or other records listing adjustments to the ledgers or books of account;
E. Balance sheets, income statements or other financial statements;
F. Contracts, invoices, titles, or other documents evidencing their receipt and disposition of funds or income;
G. Records relating to the preparation of Federal Tax Returns for the years 983 through the present, including but not limited to work papers, Forms 1099, retained copies of Form 1040 and 1120, and Employee Wage Statement Forms W-s, Payroll Tax Returns, including quarterly Forms 940 and 941, and Sales Tax Returns filed with the California State Board of Equalization;
H. Correspondence, policies, billings, invoices, claims, notes and records relating to insurance, finances, or corporate activities reflective of false or fraudulent financial transactions;
I. Records relating to any fake or fraudulent transactions between or among
J. Records of all loans received or granted by or for and records of payments;
K. Computers, magnetic floppy disks or diskettes, including 3 1/2 inch, 5 1/4 in, or 8 inch sizes, compact disks, magnetic tapes, including cassettes, cartridges, streaming tape, video tape, hard disk units (with attached control card), magnetic cards, and any other electronic data processing storage medium;
L. Articles of Incorporation, corporate resolutions, corporate minute books, and corporate stock books;
M. Records and documents relating to business dealings and transactions with and any and all video stores and businesses sub-licensed by to do business;
N. Notes, memorandae, schedules, and written recollections reflecting any disparity between income earned and income officially reported.
Kow, 95 D.A.R. at 4733.
2. 2 Kow acknowledged the speculation contained in a footnote to the earlier Ninth Circuit decision in United States v. Luk, 859 F.2d 667 (9th Cir. 1988) that the failure to have a limiting affidavit present at the execution of the search was not necessarily fatal to a finding of good faith reliance on the warrant. 95 D.A.R. at 4735, n.4. The Ninth Circuit in Kowexpressly noted that the Luk footnote
seems inconsistent with the developments in subsequent case law, and may not be an accurate reflection of the current status of our law. Towne, Center Art and other cases say that a central purpose underlying the requirement that a limiting affidavit physically accompany the warrant is to ensure that the person whose property is to be searched will be able to examine the document to determine what items may lawfully be seized. . . . Under this reasoning, it would seem anomalous to conclude that an officer executing a search warrant who failed to take the limiting affidavit with him, nonetheless had a good faith belief that the process he followed complied with the law.
Id. In any event, even if the Affidavit had been present in this case, it would not have provided the guidance required underSpilotro. As in Kow, the Affidavit here includes virtually the same list of "general and overbroad categories reiterated in the warrant." Id. at 4735. Moreover, the Affidavit here is almost twice the length of the 35 page affidavit in Kow, and the limiting material is "buried . . . among less helpful material and would not have assisted officers executing the warrant to narrow the scope of their search." Id.