CHALLENGING THE WARRANT QUOTIENT FOR DETERMINING PROBABLE CAUSE
Prior Supreme Court decisions required not only that an officer seeking a warrant based on an informant’s hearsay provide the Magistrate with an underlying factual basis for his independent determination that the informant was reliable, but also a factual basis for determining whether on this occasion the informant acquired his information in a reliable and dependable fashion.
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
Now these two independent “prongs” of “veracity” and “basis of knowledge” will be considered together under a “totality of circumstances” approach.
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2323, 76 L.Ed.2d 527 (1983).
“A deficiency in one [prong] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”
Texas also applies the “totality of the circumstances” analysis in determining whether there is probable cause for issuance of a search warrant under the Texas Constitution. Bower v. State, 769 S.W.2d 887 (Tex. Cr. App. 1989), cert. denied, 492 U.S. 927 (1989). [Texas courts abandoned the “two-prong” Aguilar and Spinelli test and adopted the test in Illinois v. Gates].
While the Court insisted on a “bright line rule” to guide police officers in searching automobiles incident to the arrest of drivers in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), “[a] single familiar standard is essential to guide police officers who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” Belton, 453 U.S. at 458.
The Court insists upon “a fluid concept–turning on the assessment of probabilities in particular factual contexts–not readily, or even usefully, reduced to a neat set of legal rules” when grading the Magistrate’s determination of probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2323, 76 L.Ed.2d 527 [stating that “[o]ne single rule will not cover every situation”].
And where Massachusetts State Court had viewed Gates as a “mere refinement” of the Aguilar/Spinelli two-pronged test, the Supreme Court tersely reversed in a per curiam opinion characterizing the State Court’s opinion as “insisting on judging bits and pieces of information in isolation against the artificial standards provided by the two-pronged test”. The Court held, “[W]e did not merely refine or qualify the (former) two-pronged test [in Gates], we rejected it as hypertechnical.” Massachusetts v. Upton, 466 U.S. 727, 731, 104 S.Ct. 2085, 2088,
80 L.Ed.2d 721, 726 (1984). See also U.S. v. Little, 735 F.2d 1049 (8th Cir. 1984) [applying the totality of the circumstances test and holding no probable cause existed for court ordered “beeper” due to affiant’s failure to either demonstrate that the information was received from reliable informants or independently corroborate that information]; U.S. v. Garcia, 732 F.2d 1221 (5th Cir. 1984) [using the “totality of the circumstances” test, found probable cause for a vehicle stop by a roving border patrol 115 miles from the U.S.-Mexican Border. Factors contributing to probable cause included the vehicle’s overloaded appearance; the history of alien smuggling in the area; and the agent’s special training and experience].
Gates expressly admonishes that in applying the new “totality of circumstances” test, the reviewing court should not abdicate its traditional role of “conscientiously review[ing] the sufficiency of the affidavits on which warrants are issued.”
Common sense consideration of the totality of the circumstances as applied to probable cause (that being a practical non-technical probability that contraband is on the premises to be searched is sufficient). A showing that the belief is more likely true than false is not demanded. Cases decided under Gates, which have found probable cause based on informant’s tip:
U.S. v. Adcock, 756 F.2d 346 (5th Cir. 1985); U.S. v. Reed, 733 F.2d 492 (8th Cir. 1984); U.S. v. Campbell, 732
F.2d 1017 (1st Cir. 1984); Marvin v. U.S., 732 F.2d 669 (8th Cir. 1984); U.S. v. Rodgers, 732 F.2d 625 (8th Cir.
1984); U.S. v. Rose, 731 F.2d 1337 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984);
Carter v. U.S., 729 F.2d 935 (8th Cir. 1984); U.S. v. Phillips, 727 F.2d 392 (5th Cir. 1984); U.S. v. Francesco,
725 F.2d 817 (1st Cir. 1984); U.S. v. Camp, 723 F.2d 741 (8th Cir. 1984); U.S. v. Mendoza, 722 F.2d 96 (5th Cir. 1983).
Cases decided under Gates that have found that an informant’s tip did not constitute probable cause under the Gates “totality of the circumstances” test:
In re Grand Jury Proceeding (Young), 716 F.2d 493, 501 (8th Cir. 1983); U.S. v. Campbell, 732 F.2d 1017 (1st Cir. 1984); U.S. v. Parker, 722 F.2d 179 (5th Cir. 1983), overruled on other grounds, U.S. v. Hurtado, 905 F.2d 74 (5th Cir. 1990); U.S. v. Kolodziej, 712 F.2d 975 (5th Cir. 1983). See also U.S. v. Adcock, 756 F.2d 346 (5th Cir. 1985) [in reviewing sufficiency of affidavit, court should apply a common sense consideration of the totality of the circumstances]; U.S. v. Aguilar, 825 F.2d 39 (4th Cir. 1987) [probable cause existed where suspect exhibited drug courier profile characteristics coupled with experienced agent’s observation of a large bulge and a piece of white plastic at his right ankle].
Also see In re T.H., D.C., 2006 D.C. App Lexis 210, Argued May 11, 2006 [A police officer who spied a box of illegal fireworks in the open cargo area of a parked sport utility vehicle did not have probable cause to arrest a back seat passenger for possessing the fireworks. The court decided that the presence of the fireworks in the car was not so suggestive of the defendant’s involvement in lawbreaking as to give rise to probable cause].
PROBABLE CAUSE IS STILL THE STANDARD
Justice Scalia affirmed that a “search or seizure” must be supported by the traditional standard of “probable cause”. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Our disagreement with the dissenters pertains to where the proper balance should be struck; we choose to adhere to the textual and traditional standard of probable cause.” Hicks, 480 U.S. at 329-30.
See also Minnesota v. Dickersen, 508 U.S. 366, 113 S. Ct. 2130, 124 L.Ed.2d 334 (1993).
And probable cause must be affirmatively shown on the face of the record. Garrison v. State, 726 S.W.2d 134 (Tex.Crim.App. 1987).
CONSTITUTIONAL RIGHT TO GO BEHIND FOUR CORNERS OF SEARCH WARRANT AFFIDAVIT WHERE PRIMA FACIA SHOWING OF MISSTATEMENT MADE:
A search warrant affidavit which contains erroneous facts, false statements or misrepresentations may render the search warrant and the ensuing search invalid. Where a search warrant affidavit contains intentional or reckless misstatements of fact, such will render the warrant issued thereon invalid where such erroneous facts are material to the showing of probable cause. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
See also U.S. v. Perez, 247 F. Supp. 2d 459 (S.D. N.Y. 2003)[false statement in affidavit that those logging into website from which child pornography can be obtained automatically received child pornography defeated probable cause for nationwide search of computers in “operation candy man”].
“…[W]hen law enforcement gathers information about the activity of individuals on the internet, the potential for unreasonable intrusions into the home–the chief concern of the drafters of the Fourth
Amendment–is great. This case demonstrates the tension that can exist: the Government argues, in essence, that it has probable cause to search the homes and seize the computers of thousands of individuals merely because they entered their e-mail addresses into a website where images of child pornography were available, even without any proof that the individuals uploaded, downloaded or discussed the images, or otherwise participated in the website.” U.S. v. Perez, 247 F. Supp. 2d 459, 461 (S.D. N.Y. 2003).
U.S. v. Strauser, 247 F. Supp.2d 1135, 1136 (E.D. Mo. 2003)[“government’s investigation … ‘Candyman’ … government concedes that the warrant affidavit falsely indicated that Strauser had received emails containing over one hundred images of child pornography, when in fact, there was no evidence that he had ever received any child pornography”]; U.S. v. Thomas, 489 F.2d 664 (5th Cir. 1973); U.S. v. Upshaw, 448 F.2d 1218, 1222 (5th Cir. 1971), cert. denied, 406 U.S. 934 (1972); U.S. v. Morris, 477 F.2d 657 (5th Cir. 1973); U.S. v. Hunt, 496 F.2d 888 (5th Cir. 1974); U.S. v. Carmichael, 489 F.2d 983 (7th Cir. 1974) [en banc]; U.S. v. Marihart, 492 F.2d 897 (8th Cir. 1974); U.S. v. Harwood, 470 F.2d 322 (10th Cir. 1972); Curry v. Estelle, 531 F.2d 1260 (5th Cir. 1976);
U.S. v. Astroff, 578 F.2d 133 (5th Cir. 1978) [en banc] [a statement that the “inspection of the …suitcases
…revealed a green vegetable substance which appeared to be about one hundred and fifty pounds of marijuana… when in fact the officers had only ‘smelled’ what they believed to be marijuana, was only a negligent mistake and applying Franks the defendant was precluded from even an evidentiary hearing on the veracity of the warrant”].
OMISSIONS MAY CONSTITUTE MISREPRESENTATIONS
The Fifth Circuit (among other circuits) treats omissions essentially the same as misstatements. U.S. v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). “Similarly, the Fourth Amendment forbids officers from omitting information from a search warrant affidavit if (1) the omission was knowingly and intentionally made or was made in reckless disregard for the truth, and (2) the inclusion of the omitted information would render the affidavit insufficient to support a finding of probable cause.” U.S. v. Richardson, 478 Fed. Appx. 82, 89 (5th Cir. 2012) (citing U.S. v. Martin, 615 F.2d 318, 328 (5th Cir. 1980).
If the magistrate is to test probable cause by the “totality of circumstances” test required in Illinois v. Gates, 462 U.S. 213 (1983), then omitting material facts from search warrant affidavits deprives the magistrate of the opportunity to perform his function.
“The probable cause affidavit…merely stated that the car had been ‘stopped’. Moreover, the affidavit merely states that the defendants ‘gave a verbal consent to search the car’ Based upon this information…Magistrate Vitunac issued a search warrant. ‘The sheriff had received an anonymous tip relaying information about the defendant’s future conduct and officers did corroborate many innocent facts in the tip before running the defendant’s car off the road, forcibly stopping the car, yelling at the defendant, forcing him to exit the car and lie on the ground while guns were pointed at him.’ The facts known to the officers at the time of the stop were from the anonymous tip, plus their investigation and surveillance of the defendants would not demonstrate probable cause to any reasonable law enforcement officer. In fact, there is considerable doubt that there was even reasonable suspicion sufficient to justify a Terry stop.
…[T]o excuse the officer’s material omissions here would encourage the police to be less than candid in applying for warrants. It is not surprising that Magistrate Vitunac reversed herself in this case by invalidating the very warrants that she issued after she was presented with all the facts surrounding the arrest.” U.S. v. Solomon, 728 F. Supp. 1544, 1550 (S.D. Fla. 1990).
Furthermore, where the omitted facts are critical to a showing of probable cause, “recklessness may be inferred from proof of the omission itself.” U.S. v. Martin, 615 F.2d 318, 328 (5th Cir. 1981).
“More pertinent to our inquiry, the court noted that ‘[i]t is possible that when the facts omitted from the affidavit are clearly critical to a finding of probable cause the fact of recklessness may be inferred from proof of the omission itself.’ This recognition that the analytical concepts of materiality and recklessness are often bound together is significant in this case.” U.S. v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982), cert. denied, 486 U.S. 1006 (1988).
See also U.S. v. Haimowitz, 706 F.2d 1549 (11th Cir. 1983), cert. denied, 464 U.S. 1069 (1984).
Although Franks dealt only with affirmative false statements, its principles also allow attacks on warrants allegedly different as a result of a misleading omission.
Although officer’s affidavit for a search warrant failed to state that officer actually observed the defendant transport drugs, taken as a whole, the affidavit provided sufficient information that was reasonable for the officer to believe that there was probable cause for a search warrant. See U.S. v. Sibley, 448 F.3d 754 (5th Cir. 2006).
EVEN LITERAL TRUTHS MAY CONSTITUTE MISREPRESENTATION
Even literally true statements may be intentionally misleading. State v. Olson, 726 P.2d 1347, 1351 (1986) [affidavit reciting that information had provided reliable information “in the past”, when in fact affiant’s only contact with informant was arrest six months before and discussion three hours before obtaining search warrant, while technically and literally true was misleading and should be excised under Franks]. See also U.S. v. Solomon, 728 F. Supp. 1544 (S.D. Fla. 1990) [ good faith exception does not apply where agent omitted material details of how the evidence was obtained. No reasonable officer, when confronted with the facts of the tip, plus the limited amount of corroboration, could arrest].
MISREPRESENTATIONS AS TO ADDITIONAL REQUIREMENTS OF WIRETAP STATUTE
Misrepresentations as to 18 U.S.C. § 2518(1)(c)’s requirement that a wiretap warrant application contain “a full and complete statement as to whether or not investigative procedures had been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous” have been held to fall within the Franks proscription. U.S. v. Simpson, 813 F.2d 1462 (9th Cir. 1987); U.S. v. Ippolito, 774 F.2d 1482 (9th Cir. 1985); U.S. v. Martinez, 588 F.2d 1227 (9th Cir. 1978); U.S. v. Lilla, 699 F.2d 99 (2d Cir. 1983);
Contra U.S. v. Garcia, 785 F.2d 214 (8th Cir. 1986); U.S. v. Abou-Saada, 785 F.2d 1 (1st Cir. 1986).
TO CONSTITUTIONALLY MANDATE AN EVIDENTIARY HEARING TO CHALLENGE THE VERACITY OF A WARRANT THE DEFENDANT MUST:
- State more than mere conclusions,
- Allege “deliberate falsehood or …reckless disregard for the truth”, allegations of mere “negligence or innocent mistake are insufficient”,
- Make “Offer of Proof” specifically point out “…the portion of the warrant affidavit that is claimed to be false”,
- Which must be “accompanied by a statement of supporting reasons”,
- Furnish “affidavits or sworn or otherwise reliable statements of witnesses …or [have] their absence satisfactorily explained”,
- Show that the impeachment is of the “Affiant, not of any non-governmental informant”,
- Show that if the “material that is the subject of the alleged falsity or reckless disregard is set to one side
…the remaining containing content is insufficient” to support a showing of probable cause. Franks v. Delaware,
438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
See also U.S. v. Roth, 391 F.2d 507 (7th Cir. 1967); U.S. v. Pearce, 275 F.2d 318 (7th Cir. 1960).
Cases where defendant met the burden of challenging the veracity of a warrant:
U.S. v. Bowe, 698 F.2d 560 (2d Cir. 1983); U.S. v. Wuagneuz, 683 F.2d 1343 (11th Cir. 1982), cert. denied, 464 U.S. 814 (1983).
Cases where Franks hearing denied:
U.S. v. Reed, 726 F.2d 339 (7th Cir. 1984); U.S. v. McDonald, 723 F.2d 1288 (7th Cir. 1983); U.S. v. Orozco- Prada, 732 F.2d 1076 (2d Cir.), cert. denied, 469 U.S. 845 (1984); U.S. v. Erickson, 732 F.2d 788 (10th Cir. 1984). See also State v. Thetford, 745 P.2d 496 (Wash. 1987) [recruited and paid informant was a government agent for purposes of the Franks analysis].
But see U.S. v. Ofshe, 817 F.2d 1508 (11th Cir. 1987) [a minor omission is not critical to a showing of probable cause].
GOVERNMENT’S RIGHT TO GO BEHIND THE FOUR CORNERS TO SHORE UP PROBABLE CAUSE
While FED. R. CRIM. P. Rule 41(c) expressly provides that a magistrate may receive and consider sworn testimony in addition to that set out in the affidavit, such information may not be relied upon in support of probable cause unless same is “…taken down by a court reporter or recording equipment and made a part of the affidavit.” Thus oral testimony may supplement a search warrant affidavit. Boyer v. Arizona, 455 F.2d 804 (9th Cir. 1972); Frazier v. Roberts, 441 F.2d 1224 (8th Cir. 1971). However, in order to be considered by a federal magistrate, same must be recorded, transcribed, and made a part of the affidavit. U.S. v. Acosta, 501 F.2d 1330, 1334 (5th Cir. 1974), cert. denied, 423 U.S. 891 (1975).
“Under the amended rule …there can be no doubt that any oral additions to the affidavit must be recorded and made a part of the affidavit.” U.S. v. Acosta, 501 F.2d at 1334.
Compare U.S. v. Copeland, 538 F.2d 639 (5th Cir. 1976) [failure to comply with Rule 41 in obtaining a warrant mandates suppression], with U.S. v. Lehder-Rivas, 955 F.2d 1510 (suggesting Leon’s good faith exception could defeat suppression for failure to comply with transcription requirement); U.S. v. Hittle, 575 F.2d 799 (10th Cir. 1978). See also A MOORE’S FEDERAL PRACTICE ¶41.01, 41.05( the 1972 Amendment to the rule was designed “to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if that question should later arise”).
C.f. U.S. v. Hill, 500 F.2d 315, 322 (5th Cir. 1974) [excusing the failure to provide sworn testimony]. See also Miller v. State, 736 S.W.2d 643 (Tex.Crim.App. 1987), on motion for reh’g, [if the prosecution wishes to rely upon additional evidence [affidavits] actually before the issuing magistrate, same must be offered and admitted at the suppression hearings or there will be nothing to consider on appeal].
CANNOT SUPPORT WITH POST-SEARCH TESTIMONY OF INFORMATION KNOWN TO OFFICERS AT TIME OF SEARCH
It is a truism that “a search warrant is valid only if probable cause has been shown to the magistrate and that an inadequate showing may not be rescued by post-search testimony on information known to the searching officers at the time of the search”. Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975).
See also Coolidge v. New Hampshire, 403 U.S. 443, 450-51, 91 S.Ct. 2203, 29 L.Ed.2d 564 (1971); Whiteley v. Warden, 401 U.S. 560, 565, n. 8, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Aguilar v. Texas, 378 U.S. 108, 109, n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. U.S., 357 U.S. 493, 497-8, 78 S.Ct. 1253, 2 L.Ed.2d 151 (1958);
Giordenello v. U.S., 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Taylor v. U.S., 286 U.S. 1, 6, 52 S.Ct. 466, 76 L.Ed. 951 (1932); Agnello v. U.S., 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925).
Only items particularly described may be seized during the execution of a search warrant. LeClair v. Hart, 800 F.2d 692 (7th Cir. 1986) [documents outside residential search warrant improperly “seized” when contents dictated verbatim].
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. [emphasis added].
See U.S. v. Young, 745 F.2d 733 (2d Cir. 1984); In re Impounded Case (Law Firm), 840 F.2d 196 (3d Cir. 1988) [broadly described law office files and documents did not constitute overbreadth]; U.S. v. Burke, 784 F.2d 1090 (11th Cir. 1986) [despite incorrect address, warrant described place to be searched with sufficient particularity, because it contained a detailed physical description of the building and a unique apartment];
Voss v. Bergsgaard, 774 F.2d 402 (10th Cir. 1985) [warrant to seize “all business records” offended particularity requirement where target organization is pervasively criminal]; U.S. v. Spilotro, 800 F.2d 959 (9th Cir. 1986) [items relating to loan sharking and bookmaking generically described; not sufficiently particular]; U.S. v. Robertson, 21 F.3d 1030, 1034 (9th Cir. 1994) [a warrant authorizing the seizure of fruits and instrumentalities of a narrow and simple crime like carjacking was not overbroad, especially since the officers could not determine all household items taken with specificity]; United States v. Oliverius, 2011 U.S. Dist. LEXIS 110783 (D. Neb. August 5, 2011) [Computer searches: finding files with the same hash value as known child pornography is probable cause without opening the files].
But see Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) [after seizing contraband, officers discovered that the third floor consisted of two apartments and that they were in Respondent’s, not McWebb’s apartment. The Supreme Court upheld as “honest mistake”]. The mistake was an objectively reasonable one. Maryland v. Garrison, 480 U.S. at 75.
See also U.S. v. Santarelli, 778 F.2d 609 (11th Cir. 1985) [warrant was sufficient where the term “evidence of loansharking” was used and was sufficient to reasonably ascertain and identify business papers searched for];
U.S. v. Young, 745 F.2d at 759-60 (2d Cir. 1984) [“…the use of the term ‘other evidence’ followed by the term ‘money’ was sufficient to permit the agents to seize such manifestations of wealth as furs, jewelry, and expensive automobiles”];
U.S. v. Dennis, 625 F.2d 782, 792 (5th Cir. 1980) [“certain” items of evidence relating to loansharking sufficiently particular]; International Molder’s and Allied Worker’s Local Union No. 164 v. Nelson, 799 F.2d 547 (9th Cir. 1986) [INS agents need not provide the names of illegal aliens they hope to find when applying for a search warrant to search factories and other places].
FIRST AMENDMENT MATERIALS TO BE DESCRIBED WITH “SCRUPULOUS EXACTITUDE”
When a warrant authorizes the content-based seizure of books or films, “the Constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude.” Stanford v. Texas, 379 U.S. 476, 486, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). See New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871, 879 (1986); U.S. v. Diamond, 820 F.2d 10 (1st Cir. 1987) [the warrant for films depicting “children under the age of 18 years” in sexually explicit conduct held insufficiently particular].
Where executing officers “failed to present to magistrate new information discovered after issuance of search warrant and before its execution”, same did not invalidate the warrant since even without the “new information” the affidavit contained sufficient probable cause to support the search warrant. U.S. v. Marin- Buitrago, 734 F.2d 889, 895 (2d Cir. 1984).
“…[W]e hold as a matter of law that the addition of the new information here would not affect the finding of probable cause. The only new information to be added to the affidavit is Marin’s and his companion’s denials that he was Correa [the person named in the warrant] and the Columbian identifications issued in the name of ‘Marin-Buitrago’. This information in no way proved that Marin was not Correa In addition, the new information did not affect the veracity of the majority of the statements made in the affidavit.” U.S. v. Marin-Buitrago, 734 F.2d at 895.
The information relied upon to procure a warrant must be sufficiently recent to assure its reliability. The Ninth Circuit has held that where the information relied upon to obtain the warrant was six weeks old, it was too stale to support same. U.S. v. Bailey, 458 F.2d 408, 412 (9th Cir. 1977); U.S. v. Neal, 500 F.2d 305, 309 (10th Cir. 1979) [three months-too late]; U.S. v. U.S. v. Cofer, 444 F. Supp. 146 (W.D. Tex. 1978) [three months too stale]; Lighter v. State, 741 S.W.2d 568 (Tex.App.-1987) [no dates indicated].
But see USA Patriot Act, permitting execution of a warrant up to one year after its issuance from any district in the nation. Because the Act is premised upon domestic investigations of foreign agents and does not require standards for criminal investigations be met, it may not pass constitutional muster in the criminal courts. 18 U.S.C.
- § 3121-3127.
“MOTION TO SUPPRESS”
IS THE PROPER VEHICLE TO CHALLENGE THE VERACITY OF THE RECITALS IN A SEARCH WARRANT AFFIDAVIT
Franks v. Delaware, 438 U.S. 154, 985 S.Ct. 2674, 57 L.Ed.2d 667 (1978); U.S. v. Upshaw, 448 F.2d 1218, 1221-2 (5th Cir. 1971), cert. denied, 405 U.S. 934 (1972)
EXCEEDING THE SCOPE OF THE WARRANT
The scope of a warrant is limited by what the issuing magistrate authorizes agents to seize.
IMAW Local No. 164 v. Nelson, 643 F. Supp. 884 (N.D. Cal. 1985) [holding where INS warrant naming suspected illegal aliens in work place and “others” does not authorize search and seizure of unnamed “others”].
OFF-SITE SEARCHES, KEEPING ONLY WHAT IS WITHIN THE SCOPE OF THE WARRANT
A practice which has emerged regarding execution of computer searches whereby agents seize the entire contents of computers and then conduct the search for matters within the scope of the warrant off site. Off site searches must be treated as an unusual measure because they are in fact searches out side the scope of the search warrant. While some courts have approved the practice as reasonable under the Fourth Amendment because it is less intrusive than culling through the documents on site, U.S. v. Wuagneux, 683 F.2d 1343 (11th Cir. 1982)[papers]; U.S. v. Hargus, 128 F.3d 1358, 1363-1364 (10th Cir. 1997)[computer]; U.S. v. Santarelli 778 F.2d 609, 615-616 (11th Cir. 1985)[computer], other courts have held that off site searches of computers must expressly be authorized by the warrant, U.S. v. Tamura, 694 F.2d 591, 595-596 (9th Cir. 1982), after the affiant establishes time needed to copy the data and the need to prevent the destruction of data require the measure, People v. Gall, 30 P.3d 145, 154 (Colo. 2001). The showing must be based upon more than conclusory allegations or a Magistrate’s warrant will not be viewed as issued by an independent and neutral magistrate. Aguilar v. Texas, 378
U.S. 108, 111 (1964); U.S. v. Hay, 231 F.3d. 630, 637 (9th Cir. 2000)[detailed information about the suspect and computer system must justify off site computer search under the circumstances]. When an off site search is authorized, courts should also order that a sealed backup copy should be mainlined for the defense and his experts. See U.S. v. Cox, 190 F. Supp. 2d 330, 334 (N.D. N.Y. 2002). The magistrate should also impose time limits for the conduct of such off site searches. U.S. v. Brunette, 76 F. Supp. 2d 30, 42 (D. Me. 1999) or else the search may be deemed unreasonable. Cf. U.S. v. Place, 462 U.S. 696, 709-10 (1983). See also U.S. v. Villegas, 899 F.2d 1324, 1334 (2d Cir. 1990); U.S. v. Bedfored, 519 F.2d 650, 655 (3d Cir. 1975).
SEARCH WITHOUT A WARRANT
It has long been the law that the requirements for “probable cause” should be at least as stringent in a non- warrant search as where a warrant is obtained, lest we encourage authorities to circumvent the preferred Fourth Amendment warrant practice. Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Whitely v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
U.S. v. Maez, 872 F.2d 1444 (10th Cir. 1989) [Payton violation may occur where show of force coerces defendant out of house to allow warrantless arrest].
STATE SEARCH IN FEDERAL COURT
Where arrest or search is conducted by state officers, court’s have held that same must be tested by both state and federal law. U.S. v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed.2d 210 (1948); U.S. v. Chavez-Vernaza, 844 F.2d 1368 (9th Cir. 1987) [holding must meet minimum standards set by Federal law]; U.S. v. Pforzheimer, 826 F.2d 200 (2d Cir. 1987); U.S. v. Aiudi, 835 F.2d 943 (1st Cir. 1987) [even when federal agent is aware of impending state search which turns out to violate state law the fruits of said search may be used in federal court];
U.S. v. Ulrich, 580 F.2d 765 (5th Cir. 1975); U.S. v. Solomon, 528 F.2d 88, 90 (9th Cir. 1975); U.S. v. Lovenguth, 514 F.2d 96, 98 (9th Cir. 1975); U.S. v. Walling, 486 F.2d 229, 235 (9th Cir. 1973), cert.denied, 415 U.S. 923 (1974); U.S. v. Nicholson, 355 F.2d 80, 83 (5th Cir. 1966); U.S. v. Wynn, 544 F.2d 786, 788 (5th Cir. 1977) [“where arrest is made under a state rather than a federal statute, the requisite standard of probable cause for a lawful arrest is determined by state law, provided such law meets federal constitutional standards”]; U.S. v. Speaks, 649 F. Supp. 1065 (E.D. Wash. 1986) [stating state judge issued warrant].
However, in U.S. v. Mahoney, 712 F.2d 956, 959 (5th Cir. 1983), dealing with state officers executing a federal warrant based on a federal indictment, the Court held that “because [the “exclusionary rule”] is a creature of the federal courts and because it ought to be applied in a manner that promotes uniformity in federal cases, federal law must guide our decision as to whether to apply the exclusionary rule and whether or not the legality of the evidentiary arrest or search turns on state law.” U.S. v. Mahoney, 712 F.2d at 959.
“In determining whether there has been an unreasonable search and seizure by state officers [in a federal prosecution], a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state may have countenanced, nor diminished by what another may have colorably suppressed.” U.S. v. Mahoney, 712 F.2d at 959 n.3 [citing Elkins v. U.S., 364 U.S. 1208, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)].
See also U.S. v. Anderson, 618 F. Supp. 1335 (D.C. 1985) [search warrant obtained by state officer pursuant to state law need not meet requirements of FED. R. CRIM. P. Rule 41 governing search and seizures].