Two particularity cases

Search warrant for property for child pornography directed at defendant’s roommate, but covering all computers on the property, permitted a search of defendant’s computer, too. United States v. Umgelder, 2007 U.S. Dist. LEXIS 89719 (S.D. Ill. December 6, 2007):

The warrant authorized a search of the entire apartment for evidence of child pornography crimes, including the search and seizure of computers in the apartment; it clearly covered any computer in the apartment, and was not too general simply because it did not specifically authorize a search of Umgelder’s computer. The warrant did specifically indicate it was searching for items related to child pornography, so the executing officers were not free to go through Umgelder’s property without limits. This is sufficiently particular to withstand constitutional challenge. Accordingly, the evidence obtained from the search and seizure of Umgelder’s computer is not subject to suppression. (emphasis in original)

In a tax fraud case, a warrant was not inparticular for not listing 220 participants to cover others. Practical flexibility in the warrant was required. The search of defendant’s computers was not overbroad either because the government searched files beyond the warrant because nothing found there will be used in the case. Finally, the good faith exception would apply. United States v. Evanson, 2007 U.S. Dist. LEXIS 89618 (D. Utah December 4, 2007):

The decision in United States v. Le, 173 F.3d 1258 (10th Cir. 1999), also supports the government’s position. In that case, Mr. Le argued that the warrant authorizing a search of his residence was not sufficiently particular. He based his argument on the fact that although agents searching his residence knew about the kinds of specific explosives Mr. Le had in his garage at the time the agents obtained a warrant, they did not disclose that information to the judge and obtained a warrant that authorized the agents to seize all types of explosives and related evidence. The court disagreed with Mr. Le, noting that it had, in the past, upheld “broad and generic terms of description” in warrants because “the nature and characteristics of some criminal operations do not easily lend themselves to specific descriptions of things to be seized.” Id. at 1271-72 (citations omitted).

The Tenth Circuit has also recognized that “[t]here is a practical margin of flexibility permitted by the constitutional requirement for particularity in the description of items to be seized.” In re Matter of the Search of Kitty’s East, 905 F.2d 1367, 1374 (10th Cir. 1990) (citations omitted).

On the flip side, Mr. Evanson argues that the government’s failure to include the Players list, which existed at the time the agent applied for the warrant, rendered the First Warrant not specific enough. But this would not have been an effective tool to limit the warrant. Assuming the warrant had included a list of some 220 known participants in the fraud scheme, that would not have provided any guidance when the searchers confronted the 221st participant, who was previously unknown to the agents. In that case, the searching agents would have had to rely on the descriptions in the balance of the warrant, which would spell out the “distinguishing characteristics of the goods to be seized.” Listing the first 220 known participants would have done nothing to specify the “distinguishing characteristics” of the 221st, 222nd, or 223rd participants in the tax fraud schemes, for whose records probable cause had been established. Thus the list would not have added particularity–as contemplated by Leary–to the warrant. Because the descriptions found in the First Warrant were sufficiently particular to direct the agents in what they could and could not seize, failure to include the list was not error.