Restating the Tenth Circuit’s rule permitting blanket suppression for serious overseizure contrary to the warrant, the court finds that this one doesn’t measure up. The inventory went on for 50 pages, but defendant only challenged three items of artwork that disappeared. United States v. Wyatt, 2016 U.S. Dist. LEXIS 166731 (D.Colo. Nov. 29, 2016):
A. Suppression Resulting From Flagrant Disregard for Warrant’s Limitations
In cases where police misconduct is particularly egregious, broad (or, as some courts have described, “blanket”) suppression may be warranted even without a causal connection between the misconduct and the evidence. “Blanket suppression” is typically reserved for instances where officers completely ignore a warrant’s limitations and treat a search as a general “fishing expedition,” rummaging through property for any indication of broad criminal activity. See United States v. Webster, 809 F.3d 1158 (10th Cir. 2016) (blanket suppression is warranted where searches conducted pursuant to a warrant turn into general searches in disregard of the particularity requirement); United States v. Le, 173 F.3d 1258, 1270 (10th Cir. 1999); United States v. Moraga, 76 Fed App’x 223, 229 (10th Cir. 2003); see also United States v. Shi Yan Liu, 239 F.3d 138, 140-41 (2d Cir. 2000) (the rationale for blanket suppression is that a search that greatly exceeds the bounds of a warrant and is not conducted in good faith essentially becomes an impermissible general search); United States v. Squillacote, 221 F.3d 542, 556 (4th Cir. 2000) (“The extraordinary remedy of blanket suppression of all evidence seized should be used only when the violations of the warrant’s requirements are so extreme that the search is essentially transformed into an impermissible general search”) (quoting United States v. Chen, 979 F.2d 714, 717 (9th Cir. 1992)).
The seminal case in the 10th Circuit for this proposition is United States v. Medlin, 842 F.2d 1194 (10th Cir. 1988). There, federal officials obtained a warrant to seize “illegally possessed and/or stolen firearms” from the defendant. The federal officials, accompanied by local police, executed the warrant, seizing 130 firearms. However, during the search, the local officers also proceed to search for any other stolen property that might be evidence of state crimes, eventually seizing more than 600 additional items, none of which were covered by the warrant. After concluding that the federal officers were responsible for the seizures made by the local officials, the 10th Circuit took up the question of whether suppression of the properly-seized firearms was warranted. Describing the general rule as “evidence which is properly seized pursuant to a warrant must be suppressed if the officers executing the warrant exhibit ‘flagrant disregard’ for its terms,” the court found that standard to be satisfied by the local officers’ conduct. Id. at 1198-99. The court’s reasoning was that “[w]hen law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant.” Id. at 1199.
The rule in Medlin has been consistently applied in similar cases. For example, in United States v. Foster, 100 F.3d 846, 849 (10th Cir. 1996), officers flagrantly disregarded the scope of a warrant authorizing seizure of marijuana and guns, searching and seizing all items of “value,” such as electronics, videotapes, a lawn mower, coins, knives, and jewelry. See Foster, 100 F.3d at 849-50. Finding that “the officers here flagrantly disregarded the terms of the warrant in seizing property,” and relying on Medlin, the court concluded that suppression of the otherwise properly-seized marijuana and weapons was required. Id. at 851. (The court also rejected an argument that suppression was appropriate only if officers both sought and executed the warrant in bad faith. Id.). By contrast, the 10th Circuit found that “no “indiscriminate rummaging or hours of ransacking” occurred where officers, armed with a warrant to seize a rifle and accompanying ammunition that had been used in a prior shooting, proceeded to discover the stated evidence in proximity to numerous other firearms, other weapons and paraphernalia, (both firearms and otherwise), a pipe bomb, and welding equipment that could have been used to build the pipe bomb, all of which officials seized. U.S. v. Sells, 463 F.3d 1148, 1162 (10th Cir. 2006). The court described the Medlin rule as one in which “flagrant disregard [for] the permissible scope, duration, and intensity of the search” permitted by the warrant “would require the ‘extreme remedy’ of total suppression,” but concluded that the facts there did not demonstrate such disregard. Id.
The 10th Circuit also found no basis for suppression in United States v. Webster, 809 F.3d 1158 (10th Cir. 2016). There, two teams of local officers executed a warrant to seize drugs and drug paraphernalia from the defendant’s home. The execution was accomplished by the first team, a group specializing in forced entries, entered and secured the defendant’s home, followed by a narcotics team that actually conducted the search for and seizure of drugs and other items mentioned in the warrant. At some point thereafter, the defendant noticed that other items of his personal property, including cash, a cell phone, and a game console were missing. Although the defendant proceeded to plead guilty to the drug charges, he later learned from FBI officials that certain members of the forced entry team that executed the warrant had been discovered to be stealing personal property during searches, and one member had been found in possession of the defendant’s game console, among other items. The defendant sought to withdraw his guilty plea and seek suppression of the fruits of the warrant, but the 10th Circuit rejected the argument. Carefully distinguishing Medlin and Foster, the court observed that: (i) unlike Medlin, there was no evidence that members of the narcotics team who actually seized the drug evidence knew of or condoned the forced entry officers’ taking of the defendant’s other property; and (ii) unlike Foster, the narcotics officers did not unduly extend their time in the defendant’s house in order to search for other evidence beyond that listed in the warrant. Id. at 1169-70.
In sum, blanket suppression is predominantly applied where agents grossly disregard the specific limits of a warrant and proceed to search for and seize property that is entirely unrelated to that authorized by the warrant.
Here, Mr. Wyatt’s proffer does not describe the type of flagrant disregard for a warrant’s terms shown in cases like Medlin or Foster. Mr. Wyatt does not allege that ATF agents seized a large quantity of personal property falling outside of the scope of the warrant, nor that agents needlessly prolonged their exploration of the Gunsmoke property in order to do so. At best, Mr. Wyatt’s proffer seems to suggest that ATF agents may have removed as many as three “prints” – the Court understands this to mean framed posters, photos, or other artwork — from the building, apparently without authorization in the warrant. Although the Court does not condone officers ever seizing any item of property beyond that authorized by a warrant, the Court finds that, in the circumstances presented here, the improper removal of as many as three prints would be de minimis, particularly in light of the record that reflects a warrant seizure inventory that runs more than 50 pages, listing hundreds of items whose seizure Mr. Wyatt does not challenge. Certainly, the Court would consider suppression of the prints themselves, were the Government to attempt to offer them as evidence and Mr. Wyatt showed that they were improperly seized. But as a basis for suppression of all of the evidence seized during the execution of the warrant, the Court cannot say that the improper taking of the three prints somehow converted the ATF agents’ search from a particularized to a general one, akin to those of Medlin or Foster. Mr. Wyatt’s remedy for the lost prints will have to be sought via an action for civil damages.