In the Boston Marathon bombing case, the search warrant for defendant’s house and college dormitory room were necessarily broad but not constitutionally overbroad. It wasn’t even possible for a search warrant to be more specifically drafted than this one was, considering the nature of the crime under investigation. (Also, a college student has standing in the family home while he’s away at college.) United States v. Tsarnaev, 2014 U.S. Dist. LEXIS 147925 (D. Mass. October 17, 2014):
The defendant asserts that the categories of items to be searched for and seized listed in Attachment B were too broad and authorized the kind of general rummaging that the Fourth Amendment prohibits. There are two principal strands to his argument. First, he asserts that the use of the phrase “including but not limited to” at the end of the initial paragraph of Attachment B just before the list of categories of evidence effectively eliminated any restriction on what could be searched for. Kuc disposes of this argument. The language of the warrant “must be read in context.” Id.; see also Andresen v. Maryland, 427 U.S. 463, 480-81 (1976) (reading warrant clause in context). Here, as in Kuc, the warrant described the scope of the authorized search by reference to specific crimes as to which probable cause was said to exist. That reference had a limiting effect, requiring that any items seized be in some manner evidence of violation by the defendant of at least one of those statutes. See 737 F.3d at 131-32. Further, the general first paragraph is followed by a series of more specific categories describing the kind of evidence that might reasonably be expected to be found in a search focused on investigation of the enumerated crimes. It has long been recognized that “the ‘general tail’ of the search warrant will be construed so as not to defeat the ‘particularity’ of the main body of the warrant.” Id. at 133 (internal quotation marks omitted). The scope of the warrant is thus limited first by restricting the search to evidence of specified crimes. The list of categories further instructs the executing officer as to the kinds of things that can plausibly be considered evidence of the enumerated crimes. See United States v. Timpani, 665 F.2d 1, 5 (1st Cir. 1981) (“The warrant breaks the items into categories. Each item is plausibly related to the crime … that is specifically set out.”). The “including” phrase the defendant points to does not have the nullifying effect he suggests.
The second strand of the defendant’s argument is that some of the enumerated categories, particularly paragraphs 8 though 12, are phrased so broadly that they give little guidance to an executing officer and thus permit an impermissible general search. This argument depends on isolating the language of those paragraphs from the context of the relevant language as a whole. Kuc and other cases instruct against that approach. It is true that some of the categories are broadly expressed and, viewed in isolation, would be too general. But in context they are properly understood as narrowed by the reference to particular criminal activity in the preamble paragraph of Attachment B. For example, paragraph 12 authorizes seizure of “any bank records, checks, credit card bills, account information, and other financial records.” Read by itself in isolation, it would fail the particularity test. But read in context it authorizes the seizure of documents within the broad categories if they are evidence of the listed crimes. That is a significant narrowing of the scope of the authorized seizure, and it provides guidance to the executing officers as to what may and may not be seized.
It should be noted that the particularity requirement does not forbid any use of generic descriptions of items to be seized. See United States v. Cortellesso, 601 F.2d 28, 31 (1st Cir. 1979). Sometimes only generic description is possible, such as when law enforcement agents, while having probable cause to believe that evidence of a crime will be found in a particular place, simply lack information about what specific form that evidence will take. For example, agents might reasonably expect that a search of an apartment from which illegal drug distribution was occurring would yield documents evidencing the distribution, but yet be unable to give a more specific description of the documents. In another case, in contrast, agents investigating a particular kind of fraud might be able to be more specific and identify a particular kind of document to be seized. See e.g., United States v. Roche, 614 F.2d 6, 7 (1st Cir. 1980). There is no reason to think that the agent who applied for the warrant in this case had information available to him that could have narrowed the language of the more generic paragraphs without defeating the legitimate purpose of the warrant.
Even if some of the categories in the numbered paragraphs were too broadly phrased, the remedy would be directed to items seized under those categories, not the entire warrant. United States v. Morris, 977 F.2d 677, 682 (1st Cir. 1992) (citing United States v. Diaz, 841 F.2d 1, 4 (1st Cir. 1988)). The defendant’s argument has been directed at the validity of the entire warrant; he has not argued for the suppression of particular items under an invalid subpart of the warrant.
Finally, even if the defendant’s argument regarding the lack of adequate particularity had merit, the “good faith” doctrine announced in United States v. Leon, 468 U.S. 897, 923 (1984), would justify denial of the motion to suppress. See United States v. Trinh, 665 F3d 1, 16 n.5.
iii. Scope of Search
“It is settled law that the search and seizure conducted under a warrant must conform to the warrant.” United States v. Upham, 168 F.3d 532, 536 (1st Cir. 1999) (citing Marron v. United States, 275 U.S. 192, 196-97 (1927)). However, seizure of items beyond the scope of a warrant “does not alone render the whole search invalid and require suppression and return of all documents seized, including those lawfully taken pursuant to the warrant.” United States v. Young, 877 F.2d 1099, 1105 (1st Cir. 1989) (emphasis in original) (quoting Marvin v. United States, 732 F.2d 669, 674 (8th Cir. 1984)).
The defendant argues that the seizure of certain items—such as textbooks and notes—by their description suggest that they were outside the scope of the authorized seizure, but he also acknowledges that for the very reason of their unrelatedness the government may not seek to introduce such items in evidence. (On the other hand, any offer would necessarily include a proffer of their relevance, which might explain why their seizure was not beyond the scope of the warrant.) Additionally, if they are offered, the “plain view” exception might apply. These issues can be addressed as the need arises at or before trial.
