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Tenth Circuit: Warrant Authorizing Search for Items ‘Involved in Crime’ Violates Fourth Amendment’s Particularity Requirement, Not Saved by Doctrine of Severability

by Anthony W. Accurso

The U.S. Court of Appeals for the Tenth Circuit held that a search warrant authorizing seizure of “any item identified as being involved in crime” lacked sufficient particularity to be valid under the Fourth Amendment.

After a driver fired shots at a pedestrian during a verbal altercation about right of way in a crosswalk in Colorado Springs, Officer Adam Menter interviewed witnesses and identified Perry Wayne Suggs, Jr. as the likely shooter.

Menter filed for a search warrant of Suggs’ home based on witness statements linking him to the shooting, his prior violent felony convictions involving firearms, and his known association with the Gangsta Disciples. Attachment A to the warrant detailed the fruits of Menter’s investigation about the shooting, and Attachment B listed the items to be seized, categorized into four section headings: “GENERAL INFO,” “GUNS INVOLVED,” “VEHICLE,” and “MISCELLANEOUS.” Importantly, the warrant application only referenced and incorporated Attachment B, not Attachment A, though the latter was clearly attached.

After the arrest and search warrants were issued, Suggs was apprehended by a SWAT team. Officers, including Teresa Tomczyk, conducted a protective sweep of Suggs’ home and curtilage to clear the area of any immediate threats.

During this sweep, Tomczyk looked inside an SUV parked in the home’s carport (not the vehicle involved in the shooting) and noticed firearms on the seat. She alerted Menter, who applied for a second warrant to search the SUV. A subsequent search of the SUV located a handgun, rifle, ammunition, gun carrying cases, and the vehicle’s registration documents.

The search of the home uncovered ammunition of the type used in the shooting, a bank statement linking Suggs to the residence, and a sale contract linking him to the vehicle involved in the shooting.

Suggs was charged under 18 U.S.C. § 922(g) for being a felon in possession of firearms. He filed a motion to suppress the evidence found in his home and vehicles, arguing that the initial search warrant for his residence failed to meet the Fourth Amendment’s particularity requirement. The U.S. District Court for the District of Colorado denied the motion. After a jury convicted him, the district court issued a sentence of 90 months’ imprisonment. Suggs appealed on the suppression issue.

The Tenth Circuit noted that the Fourth Amendment provides that “no Warrants shall issue” without “particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend IV. The purpose of the amendment was to ensure warrants issued by the nascent federal government did “not take on the character of the wide-ranging exploratory searches” through a suspect’s property once favored by British monarchs. Maryland v. Garrison, 480 U.S. 79 (1987). Therefore, a search warrant must “describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow.” United States v. Leary, 846 F.2d 592 (10th Cir. 1988).

Turning to the warrant at issue, the Court observed that the Government conceded that the warrant’s language, “on its face,” would authorize a “general rummaging outlawed by the Fourth Amendment.” As such, the Government argued that upon a natural reading of the language, “[a]ny item identified as being involved in crime” should actually be interpreted to mean “any item identified as being involved in the vehicle shooting under investigation.” To support its position, the Government cited to the rule that courts “construe search warrants in a practical and commonsense fashion, avoiding a hypertechnical reading of their terms.” See Leary. The Court rejected the Government’s argument, stating: “no reasonable construction of the residential search warrant—be it technical, practical, or otherwise—can sustain the Government’s interpretation.”

The “Miscellaneous” section of the warrant specified only one category of items to be seized: “Any item identified as being involved in crime.” Referencing several commonly-used dictionaries, the Court noted the word “crime,” without qualification, means “criminal activity” or criminal “acts collectively.” The phrasing is broadly general.

The Court noted that the warrant didn’t use the definite article “the” in connection with “crime” to indicate a nexus between the shooting and items sought or even the indefinite article “a” to suggest some connection to suspected offenses specified elsewhere.  See Pennsylvania v. Ashe, 302 U.S. 51 (1937) (using the phrase “in crime” to mean crime generally). Contrary to the Government’s assertion, the word “crime,” as used in the warrant, is not limited to a single act or specific incident, the Court stated.

Using this plain language analysis, the Court found it broadly allowed officers “to search for and seize evidence of any crime” and failed to confine the seizures to items related to the crime within “the government’s knowledge,” i.e., the shooting. Thus, on its face, the warrant “authorized officers to search for and seize evidence of any crime,” the Court concluded.

The Court went on to explain that the relevant section heading—“Miscellaneous”—also failed to provide sufficient context to save the warrant. “Differences such as subject headings and paragraph formation might seem insignificant, but if we are to follow our command of reading each part of the warrant in context, these structural indicators are useful tools.” United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). The overall structure and wording of the warrant failed to link the Miscellaneous section, and thereby limit it, to search and seizure of items linked to the shooting under investigation, the Court stated. Thus, the warrant ran afoul of the Fourth Amendment’s particularity requirement, the Court ruled. 

The Court then discussed the doctrine of severability, which can save a facially invalid warrant. United States v. Sells, 463 F.3d 1148 (10th Cir. 2006). It explained that under the doctrine, “we sever the offending portion from the warrant, suppress any evidence collected under it, and admit the evidence collected under the valid portions that remain.” Id.  

This involves a multistep analysis in which the warrant is divided in a commonsense way, and then, each section is examined for validity. Id. If at least one section is constitutionally valid, a determination is made to see whether the valid part or parts are distinguishable from the invalid ones. Id. When “each of the categories of items to be seized describes distinct subject matter in language not linked to language of other categories, and each valid category retains its significance when isolated from [the] rest of the warrant, then the valid portions may be severed from the warrant.” Id.

The Court cautioned that even “when a part of a warrant is valid and distinguishable, blanket suppression may still be required if ‘the invalid portions so predominate the warrant that the warrant in essence authorizes a general, exploratory rummaging in a person’s belongings.’” Quoting Sells. In those cases, seized items may be admitted only if the valid and distinguishable portions “make up the greater part of the warrant.” United States v. Naugle, 997 F.2d 819 (10th Cir. 1993). This analysis “focuses on the warrant itself rather than upon an analysis of the items actually seized during the search.” Sells. A commonsensical approach is used that looks at both the quantitative and qualitative traits of the valid portions relative to the invalid portions. Id.

Applying that framework to the present case, the Court stated that the first step was already done since the warrant itself was divided into sections. The second step is to determine the validity of each section. The Court stated that since there’s no dispute regarding the “General Info” section, it will assume that it’s valid, and the Court reiterated that the “Miscellaneous” section is clearly invalid.

That left just the “Vehicle” and “Guns Involved” sections. The Court found fault with the “Vehicle” section because it did not specify which vehicle was to be searched, thus not limiting the search to the vehicle used in the shooting, even though Menter had specific information about that vehicle. However, the Court disagreed with Suggs regarding the “Guns Involved” section. In United States v. Pulliam, 748 F.3d 967 (10th Cir. 2014), the Tenth Circuit held that a warrant stating that police were authorized to search for “[a]ny and all firearms and ammunition” was particularized enough for Fourth Amendment purposes because the defendant was a felon and felons are prohibited from legally possessing firearms. The Court observed that the “Guns Involved” section in the present case is materially similar to the warrant in Pulliam, and since Suggs was a felon, the same result is warranted.

With two sections invalidated and two remaining, the offending and valid portions were numerically tied, but the Court determined that the “broad and invasive” nature of the tainted provisions “permitted search and seizure of any evidence of any crime” thereby resulting in the invalid sections to bear greater weight than the constitutional ones. Quoting Cassady v. Goering, 567 F.3d 628 (10th Cir. 2009). Thus, the Court held that the unconstitutional sections “contaminate the whole warrant,” rendering the warrant both facially invalid and non-severable. Quoting Sells.

As a result, all evidence obtained in connection with the original search warrant as well as the subsequent warrant for the SUV must be suppressed under the Exclusionary Rule. Segura v. United States, 468 U.S. 796 (1984). The Government argued that the Good Faith Exception to the Exclusionary Rule applied, but the Court found the factual record insufficient to resolve the issue.

Accordingly, the Court vacated the denial of the suppression motion and remanded the case “for the district court to determine whether the good-faith exception to the exclusionary rules saves the incriminating evidence against Defendant from suppression.” See: United States v. Suggs, 998 F.3d 1125 (10th Cir. 2021). 

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Related legal cases

United States v. Suggs

United States v. Leary

Pennsylvania v. Ashe

 

 

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