Two drug cases received today deal with particularity:
A search warrant for drugs and “instrumentalities” of the crime was specific enough. In drug cases, the addition of “instrumentalities” does not make the search warrant overbroad. United States v. Dudley, 2007 U.S. Dist. LEXIS 58208 (D. Utah August 7, 2007).*
Also in a search warrant for drugs, the search warrant sought records: “The search warrant, in relevant part, authorized the seizure of evidence related to drug trafficking, including ‘[a]ny and all address and/or telephone books and records, reflecting names, addresses, and/or telephone numbers, including but not limited to, paper and computer formats.'” The warrant was not overbroad. United States v. Johnson, 2007 U.S. Dist. LEXIS 57894 (W.D. Mo. July 31, 2007)*:
Given the nature of narcotic investigations (as identified in the affidavit in support of the search warrant), the description of the items to be seized from Johnson’s residence was not overbroad. The description of the items to be seized was sufficiently particular to allow officers to recognize and seize the items described from defendant’s residence. The warrant provided a sufficiently particular description of the items to be seized from Johnson’s residence such that a violation of his personal rights in the execution of the warrant was unlikely. See, e.g., United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001) (drug search warrant which authorized seizure of documents, weapons and personal telephone/address books related to drug activities was sufficiently specific and not overbroad); United States v. Horn, 187 F.3d 781, 788 (8th Cir. 1999) (“words ‘records, documents, receipts, keys or other objects showing access to, and control of, the residence’ were sufficiently particular,” as were words “any and all correspondence, videotapes, published materials, and other objects relating to. …”).
“[H]usband-wife relationships give rise to a presumption of control for most purposes over property. United States v. Rith, 164 F.3d 1323, 1330-31 (10th Cir. 1999) (stating that the presumption may be rebutted by facts showing an agreement or understanding between the defendant and third party that the latter must have permission to enter the defendant’s room).” That is the case here. United States v. Cosby, 2007 U.S. Dist. LEXIS 58203 (D. Utah August 7, 2007).*
Warrantless entry onto the curtilage and the backyard was not shown by the defendant to have been unreasonable because visitors and delivery people could also approach via the backyard, so there was a reduced expectation of privacy there. Heroin was in plain view in the backyard. United States v. Davis, 2007 U.S. Dist. LEXIS 57854 (E.D. Wis. April 16, 2007)*:
Here, the defendant argues that the officers unlawfully entered the curtilage of the residence, that is, the backyard, without a warrant. Thus, according to the defendant, the officers’ observation of the sandwich bag that contained what appeared to be heroin would not fall within the “plain view” doctrine because the police may not violate the Fourth Amendment in arriving at the place where the evidence is in plain view. Yet, even assuming that the backyard in this case was the curtilage of the house, I am persuaded that the officers did not violate the Fourth Amendment when they entered the back yard. This is because, as the Seventh Circuit has recently stated, “[o]fficers may walk up to that part of private property that is open to visitors or delivery people. United States v. LePage, 477 F.3d 485, 488 (7th Cir. 2007). And, the defendant has not presented any evidence indicating that the back yard of the residence was not open to visitors or delivery people. Indeed, there is no evidence establishing that the residence was enclosed by a fence or any type of wall. Nor is there any evidence that the owner of the residence posted any type of no trespassing sign.
