Defendant was victimized because one of the two teams of officers involved in his raid were thieves regularly stealing from the people whose property they searched, including defendant. They were under investigation at the time of the raid in defendant’s case, and they were ultimately prosecuted and convicted. The district court granted suppression in a 2255 after it had all come to light. The government appealed, and the court of appeals reversed. Blanket suppression for flagrant disregard of the warrant was inappropriate here because the thieves weren’t the narcs, and the narcs weren’t yet aware of what they were doing. Blanket suppression can be warranted when the conduct is egregious enough, but mere thievery prosecuted to conviction isn’t it. Suppression is to deter illegal conduct. Conviction for theft by cops is deterrence, too, for exceptional cases like this one. [This also raises a serious question of truly bad faith which is mitigated by the good cops not knowing what the bad cops were doing (supposedly). Also, this case is a good summary of blanket suppression cases for flagrant disregard of the search warrant.] United States v. Webster, 2016 U.S. App. LEXIS 41 (10th Cir. Jan. 5, 2016):
We have nonetheless made it clear that “blanket suppression is an extreme remedy,” and we have rarely applied it. Le, 173 F.3d at 1270 (“In very rare cases, however, we have applied the unusual remedy of blanket suppression.”); Foster, 100 F.3d at 852 (“[T]he extreme remedy of blanket suppression should only be imposed in the most ‘extraordinary’ of cases.”). In fact, only the Ninth Circuit and our Circuit have applied blanket suppression, and only in exceptionally egregious circumstances. See, e.g., United States v. Rettig, 589 F.2d 418, 422-24 (9th Cir. 1978) (valid warrant transformed into general search where officers greatly exceeded scope of the warrant and evidence seized in bad faith was used to convict defendant; court of appeals held total suppression of all evidence was thereby warranted); Medlin II, 842 F.2d at 1199 (flagrant disregard of warrant mandated total suppression); Foster, 100 F.3d at 851 (same). In the majority of cases where the flagrant disregard issue has come up, however, we and other courts have held that the remedy of blanket suppression was not appropriate. See, e.g., Le, 173 F.3d 1258, 1272 (no flagrant disregard where warrant authorized search for items related to explosive devices and officers confiscated fifty items, only eight of which could, “even under an interpretation of fact and law highly favorable to [defendant], be considered unrelated to explosives.”); United States v. 149,442.43, 965 F.2d 868, 875 (10th Cir. 1992) (officers did not flagrantly disregard scope of warrant for search of drug-related items where, before seizing specific items not mentioned in the search warrant such as jewelry and vehicles, they contacted the assistant district attorney who advised them that the specific items could be seized as potential proceeds of illegal drug transactions); United States v. Chen, 979 F.2d 714, 718 (9th Cir. 1992) (“[W]holesale suppression is appropriate under the flagrant disregard standard only when the officers transform the search into an impermissible general search by ignoring the terms of the warrant and engaging in indiscriminate fishing.”); United States v. Allen, 416 Fed. App’x 754, 760 (10th Cir. 2011) (unpublished) (no flagrant disregard where items wrongfully seized “were not so numerous that their seizure … converted the warrant into a general warrant, or turned the search into a fishing expedition.”); United States v. Sissler, 966 F.2d 1455 at *8 [published in full-text format at 1992 U.S. App. LEXIS 14041] (6th Cir. 1992) (unpublished) (although some officers engaged in egregious misconduct by seizing items of home owners not described in warrant, all property seized from defendant, an overnight guest, was within scope of warrant; therefore blanket suppression not applied with respect to overnight guest).
We affirmed a blanket suppression order in Medlin II, 842 F.2d at 1199-1200, where officers seized 667 items not identified in the warrant. We agreed with the district court’s factual findings that the search became a “fishing expedition.” Id. at 1199. Similarly, we affirmed a district court’s blanket suppression order in Foster, 100 F.3d at 850, where officers admitted to disregarding the terms of the warrant and seizing anything of value. We agreed with the district court’s factual finding that during the execution of the search warrant, “there was a wholesale seizure of Foster’s property amounting to a fishing expedition for the discovery of incriminating evidence.” Id. (internal quotation marks omitted).
We are mindful that these cases represent the very rare exception to the general rule that “[i]f evidence is illegally seized, … only the improperly seized evidence, not all the evidence, must be suppressed …. This is particularly true when the non-specified items are not admitted into evidence.” Hargus, 128 F.3d at 1363 (quotation marks and citation omitted); Le, 173 F.3d at 1269-70. The Supreme Court has made clear that the exclusionary rule “is ‘designed to safeguard Fourth Amendment rights generally through its deterrent effect.'” Herring v. United States, 555 U.S. 135, 139-40, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974)). In fact, the Court has emphasized that “the exclusionary rule is not an individual right and applies only where it result[s] in appreciable deterrence.” Id. at 141 (internal quotation marks omitted). Significantly, “exclusion ‘has always been our last resort, not our first impulse,’ and our precedents establish important principles that constrain application of the exclusionary rule.” Id. at 140 (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006)). As such, when applying the exclusionary rule, “the benefits of deterrence must outweigh the costs.” Id. at 141. “The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free — something that offends basic concepts of the criminal justice system.” Id. (quotation marks omitted).
. . .
Mr. Webster asserts that this case “presents an even stronger showing of ‘flagrant disregard’ than what the Tenth Circuit addressed in Medlin or Foster.” Aple. Br. at 23-24. He argues that because “[t]heir conspiracy [to steal] was intentional, illegal, and recurring; [and] the officers were caught red-handed only after a sting operation was set up following repeated thefts[,] … their culpability rises far above the level found in Medlin II or Foster, as their criminal convictions confirm.” Id. at 24. The district court agreed, noting that the misconduct was especially “egregious” because the officers “entered defendant’s home under the warrant, and then used that legitimate mode of entry to gain access to defendant’s possessions, and to take them, and take them for their own use or gain.” Aplt. App., vol. II at 286-87. While we sympathize with the district court’s outrage over the criminal actions undertaken by police officers sworn to protect the public from crime, we are not persuaded that the exclusionary rule was intended to govern in the circumstances of this case.One key finding by the district court, supported by the record, is significant here: the “SCORE unit members who took the items were acting alone, without the knowledge or help of the agents executing the search warrant.” Id. at 286. This finding distinguishes Mr. Webster’s case from Medlin I, Medlin II, and Foster, the controlling line of cases in which we have applied the extreme remedy of blanket suppression.
. . .
We see little if any deterrent effect on future police conduct were we to affirm the district court’s finding in the present case that blanket suppression of all the evidence seized is warranted. Not only do the facts of this case not rise to the level of the general searches in Medlin II or Foster, but the SCORE officers here were arrested, criminally prosecuted, and convicted. We cannot imagine any better deterrence than criminal prosecution. Without a connection between the SCORE officers’ criminal conduct and the evidence properly seized by the narcotics officers, we think the societal costs outweigh the benefits of exclusion of the evidence here. Accordingly, we hold the district court erred in granting the motion to suppress.
