Overseizure under a valid warrant is hard to prove. This case makes it seem like at least an “unreasonable” overseizure, whatever that is, might still be a general search, but it doesn’t directly say so. This case is not good authority except on its limited facts. United States v. Lostutter, 2016 U.S. Dist. LEXIS 186303 (E.D. Ky. Oct. 24, 2016):
Indeed, as Defendant insinuates, law enforcement can conduct an invalid search, even pursuant to a valid warrant if it “flagrantly disregards the limitations of [the] warrant[.]” United States v. Garcia, 496 F.3d 495, 507 (6th Cir. 2007) (emphasis removed). However, “[f]or purposes of general search analysis, [a court] will find that an officer flagrantly disregards the limitations of a warrant only where he ‘exceeds the scope of the warrant in the places searched’ (rather than the items seized).” Id. (internal alteration removed; emphasis in original). “The test for determining if the officers engaged in an impermissible general search is whether their search unreasonably exceeded the scope of the warrant.” Id. (emphasis in original).
Here, Lostutter in no way alleges or proves that the officers exceeded the warrant scope in the places searched—the sole focus of the inquiry. See Garcia, 496 F.3d at 507. Indeed, his brief describes utilized search limitations as “unclear.” DE #38-1, at 11. On this record, however, as presented, the matter is clear to the Court. Officers searched 436 Miller Hunt Road, the residence the warrant authorized them to search. The searched specimens listed at DE #55-1 likewise all easily fall within the warrant scope. Law enforcement, thus, did not exceed the scope of the warrant in the places searched. Garcia, 496 F.3d at 507-08. Indeed, the warrant return item listing certainly squares with the warrant authorization. DE #38-3, at 8. The listed items do not indicate that agents disregarded the warrant limitations, as to the items seized, in any way, much less unreasonably.
Generally, overseizure only leads to suppression of that which was unreasonably seized, not the whole search. Garcia deals with a drug search where the drugs can be easily concealed.
What happens with a gross overseizure? They happen. Consider this: I filed a motion to recover property in a forfeiture case where a drug search warrant for methamphetamine produced firearms, too. All well and good. But, the officers seized literally almost everything in the house to attempt to forfeit it, without regard to any remote ability to prove it was drug proceeds or with any seizure warrant for anything beyond drugs and guns. The inventory for the forfeiture was seven pages long and included things like small kitchen appliances and clothing and furniture, things having nothing whatsoever to do with the drug search. It was attacked as the definition of a “general search.” It brought to mind the line from the book and movie The Cowboys: “Take everything but the fire.” William Dale Jennings, The Cowboys (1971) (Warner Bros. 1972).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)