N.D.Ga.: The SW doesn’t have to be in hand at the place of search as long as it is complied with

In a pill mill case against two doctors, the search warrant incorporated a list of what they were looking for by saying “See Exhibit B.” The use of the word “see” incorporated Exhibit B. Moreover, Exhibit B didn’t need to be in hand at the time of the search if the officers know the contents and limitations. United States v. Stokes, 2017 U.S. Dist. LEXIS 128927 (N.D. Ga. June 23, 2017):

The government responds that it does not matter whether Exhibit B was attached to the warrants at the time they were executed. [Doc. 118 at 19.] Citing the Fourth Circuit’s decision in United States v. Hurwitz, 459 F.3d 463, 472 (4th Cir. 2006), the government contends that all that is required is that the warrant include appropriate words of incorporation. [Id.]

Tashawna Stokes overreads Groh. The Supreme Court did not hold that a document incorporated by reference into a warrant must physically be present at a search at the time of execution. In fact, the Supreme Court recognized that “neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure requires the executing officer to serve the warrant on the owner before commencing the search.” Groh, 540 U.S. at 562 n.5. Similarly, in Hurwitz, the Fourth Circuit held, citing Groh, that there is no “constitutional mandate that an executing officer possess or exhibit the affidavit or any other document incorporated into the warrant at the time of the search in order for the warrant to be valid.” 459 F.3d at 472; see also United States v. Mwangi, No. 1:09-CR-107-TWT-AJB, 2010 U.S. Dist. LEXIS 10951, 2010 WL 520793, at *5 n.13 (N.D. Ga. Feb. 5, 2010) (rejecting argument that law enforcement was required to provide a copy of a search warrant in light of Groh and Hurwitz), report and recommendation adopted at 2010 U.S. Dist. LEXIS 10951, [WL] at *1. Expanding on its observation in Groh that neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 requires an executing officer to present the property owner with a copy of the warrant before conducting a search, the Supreme Court has explained:

“The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is … evidence that the requirement of particular description does not protect an interest in monitoring searches.” The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the “deliberate, impartial judgment of a judicial officer … between the citizen and the police,” and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.

United States v. Grubbs, 547 U.S. 90, 98-99, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006) (alterations in original) (citations omitted). Other courts have also concluded that a search warrant need not be in the physical possession of the agents executing the warrant at the time of entry. See United States v. Cazares-Olivas, 515 F.3d 726, 730 (7th Cir. 2008) (“[T]he fourth amendment does not require officers to have a warrant in hand when searching); United States v. Bonner, 808 F.2d 864, 869 (1st Cir. 1986).