N.D.Cal.: It’s generally not good to include “all” before the documents to be seized in a SW; PC must be shown for what “all” modifies in SW, and here it was

It’s generally not good to include “all” before the documents to be seized in a search warrant, but it is valid if it can be shown to relate back to something for which there is a showing of probable cause. United States v. Lonich, 2016 U.S. Dist. LEXIS 51796 (N.D.Cal. April 15, 2016):

Defendant’s overbreadth arguments are not without force. In the Court’s view, it was inartful to use the word “all” in the sentence “Such evidence, in physical or electronic form, includes all documents, business records, photographs, audio or video recordings, communications, and any evidence of the ownership, custody, control of, and association with ….” Dkt. No. 190-1 (Warrant Affidavit) (emphasis added). However, the Court agrees with the government that “such evidence” relates back to the evidence of the various crimes charged in the indictment and recited in the previous sentence, that “all” modifies “documents,” and that “and any evidence of the ownership, custody, control of, and association with, any of the following” is a an explanatory limitation on “such evidence.” When all its parts are read together, the warrant is not overbroad. The warrant commanded the executing officer to seize “[e]vidence of violations [of specific sections of Title 18 of the United States Code referencing a description of the criminal activities], involving any scheme relating to a purchase by 101 Houseco, LLC ….” Id. As described in the attachment to the warrant, the listed names of individuals and entities were examples of “[s]uch evidence” and were “identified as having specific relevance to the investigation leading to this warrant.” Id.; cf. United States v. Kow, 58 F.3d 423, 430 (9th Cir. 1995) (warrant affidavit did not provide probable cause to justify generalized seizure of all business documents where affidavit acknowledged that defendant business was a legitimate business and “[a]lthough [the government's] affidavit established probable cause to seize some business records, it did not establish that [defendants' business] was ‘permeated with fraud,’ the type of showing required to justify the wholesale seizure of business records that occurred here.”). Unlike the warrant in Kow, the warrant here did not authorize the wholesale seizure of all of defendant’s business records, but rather authorized the seizure of all evidence related to the overall scheme to defraud.

United States v. SDI Future Health, Inc., 568 F.3d 684 (9th Cir. 2009), is also instructive. …

… The Ninth Circuit explained that these five categories made no attempt to limit the search. Id. at 704. In fact, as to Category 24, the court called its characterization “the laziest of gestures in the direction of specificity” because this category “practically begs the search team to find and seize the contact information of every person who ever dealt with SDI.” Id. at 705. The court explained that “[i]t would have been far more sensible, as well as constitutional, to limit the search to information relating to consultants, physicians, and health insurance companies, or some other group likely to turn up conspirators in the alleged fraud.” Id. at 705.

Unlike the overbroad categories in the SDI search warrant, the portions of the search warrant that Lonich challenges are based on probable cause and limit the search and seizure of documents as they relate to the fraudulent scheme under investigation. Id. at 703. Attachment B specifically describes the violations of which Lonich is suspected and lists examples of evidence “includ[ing] all documents, business records, photographs, audio or video recordings, communications, and any evidence of ownership, custody, control of, and association with” specific entities and individuals relevant to the fraud investigation. Dkt. No. 190-1 (Warrant Affidavit). Moreover, the list of names provided in Attachment B is the exact opposite of what the Ninth Circuit called “the laziest of gestures in the direction of specificity.” Id. at 705. Instead of commanding the executing officers to seize any and all materials on the authorized premises, the government here provided the names of individuals who are “likely to turn up conspirators in the alleged fraud.” Id. at 705. Thus, the Neeley affidavit was not overbroad. It provided a substantial basis for Magistrate Judge Spero to find probable cause as to the seizure of all materials with a connection to the fraud.

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