CA10: GFE saves general warrant where affidavit specific and affiant served the warrant

Where officers obtained a warrant and searched two cell phones seized at the time of defendant’s arrest, the search warrant was invalid because it did not satisfy the particularity requirement since it did not identify either of the phones that were already in police possession, nor did it specify what material law enforcement was authorized to seize. However, the good faith exception applies because the affiant adequately described the phones in the affidavit and he served the warrant, so reliance on the warrant was objectively reasonable. It was also harmless beyond a reasonable doubt. United States v. Russian, 2017 U.S. App. LEXIS 2913 (10th Cir. Feb. 21, 2017):

Here, several factors lead us to conclude Deputy Wilson’s reliance on the warrant was objectively reasonable. First, Deputy Wilson prepared the warrant application and supporting affidavit, in which he carefully identified each Samsung cell phone by color and model number and specified which types of data he had probable cause to believe would be found therein. Although a warrant application or affidavit cannot save a warrant from facial invalidity, it can support a finding of good faith, particularly where, as here, the officer who prepared the application or affidavit also executed the search. See United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998) (“[T]he affidavit certainly supports the district court’s conclusion that Deputy Johnson [the affiant] in good faith believed he was obtaining a warrant to search Simpson’s residence as well as his person.”); see also United States v. Tracey, 597 F.3d 140, 153 (3d Cir. 2010) (“We also note that the application of the good faith exception is appropriate because [Officer] Holler, who drafted the narrower affidavit and was aware of its limits, led the search team at Tracey’s home.”).

Second, in addition to signing the warrant itself, the magistrate judge signed Deputy Wilson’s warrant application and affidavit, which contained a particularized description of the Samsung cell phones and cell phone data. The magistrate judge’s approval of the application and affidavit—and reference to both documents in the first paragraph of the warrant—further supports the objective reasonableness of Deputy Wilson’s reliance on the warrant. Cf. United States v. Allen, 625 F.3d 830, 839 (5th Cir. 2010) (reasoning “the executing officer who prepared the warrant, the affidavit and the attachment … had additional objective reason to believe the warrant was valid,” because the magistrate judge “signed not only the warrant, but also the affidavit, to which the list of items to be seized was attached”). Courts applying the good faith exception “have concluded that, at least when the magistrate neither intimates he has made any changes in the warrant nor engages in conduct making it appear he has made such changes, the affiant-officer is entitled to assume that what the magistrate approved is precisely what he requested.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2012). Thus, it was reasonable for Deputy Wilson to rely on the warrant to search the cell phones already in law enforcement’s custody and seize certain cell phone data related to the crimes listed in the warrant.

So: Affidavit incorporated by reference: Good. Officer who prepared specific affidavit for inspecific warrant and he limited search: Good.