CA9: Manager of corporation had no standing to challenge search of corporate records; affdavit by reference does not need to be attached if it is present

Managerial authority is not enough in a corporation (except for a small one) to have standing to challenge a search of the corporate records. If the affidavit is present at the time of the search, it does not need to be attached to the search warrant for reference to it to be valid. United States v. SDI Future Health, Inc., 553 F.3d 1246 (9th Cir. 2009):

It thus appears that an employee of a corporation, whether worker or manager, does not, simply by virtue of his status as such, acquire Fourth Amendment standing with respect to company premises. Similarly, and notwithstanding the reference to “an independent … proprietary interest” in Cella, to be merely a shareholder of a corporation, without more, is also not enough. As always, a reasonable expectation of privacy does not arise ex officio, but must be established with respect to the person in question.

. . .

The district court relied on three facts in concluding that Kaplan and Brunk had Fourth Amendment standing: their ownership of SDI, their management of SDI from offices in the building searched, and the security measures SDI took to secure its business records. Our review of relevant precedent indicates that these facts are too broad and generalized to support the district court’s conclusion. The security measures that SDI took to ensure the privacy of its business records are relevant only to the standing of the corporation itself, not of its officers. As for Kaplan and Brunk, their ownership and management do not necessarily show a legitimate expectation of privacy. See Hill, 374 F.2d at 873; Cella, 568 F.2d at 1283. Because neither claims to enjoy “exclusive use” of the places searched–that is, the entire SDI office–they each must show a personal connection, along the lines we have drawn out of Anderson, to justify an expectation of privacy.

As to the reference to the affidavit issue:

With respect to the second prong, there appears to be no question that Special Agent Raftery and the search team had copies of the affidavit in their possession when they executed the warrant. Although it is unclear whether each member of the team had his own copy as he conducted the search, the magistrate accepted Special Agent Raftery’s representation that “the affidavit was available during the search for reference by any member of the Government’s search team.” By making the affidavit available, the search team ensured that it “accompanied the warrant” to satisfy the requirements of incorporation. Nothing more is necessary for the affidavit to ensure “that the discretion of the officers executing the warrant is limited.” Towne, 997 F.2d at 548 (internal quotation marks omitted).fn10

10 We have long since dispelled any lingering confusion in our case law that the affidavit must be physically affixed to the search warrant. Towne, 997 F.2d at 544-48. We have also clarified that “[t]he documents that are in fact relied upon to serve [the functions of a search warrant] simply are the ‘search warrant’ for purposes of constitutional analysis.” Id. at 548 (addressing the accompaniment requirement). It is true that the magistrate judge questioned how much the search team actually relied on the affidavit to limit its search. As we discuss below, this was in the context of the good faith exception, where the procedural posture in the district court was different. In addition, we have never required actual reliance on an affidavit to meet the second prong for incorporation into a warrant.

SDI argues that the failure of the search team to give a copy of the affidavit to the defendants–which the government concedes–means that the affidavit did not “accompany” the warrant for purposes of this inquiry. Certainly some of our precedents have held that the “purpose of the accompanying affidavit … is both to limit the officer’s discretion and to inform the person subject to the search what items the officers executing the warrant can seize.” United States v. McGrew, 122 F.3d 847, 850 (9th Cir. 1997) (internal citation and quotation marks omitted and emphasis removed); see also Towne, 997 F.2d at 548. Eliminating any doubt on this score, we held, in United States v. Grubbs, that “our prior cases unambiguously require officers to present any curative document … to the persons whose property is to be subjected to the search.” 377 F.3d 1072, 1078-79 (9th Cir. 2004), rev’d by United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006).

However, the Supreme Court overruled our decision. Grubbs, 547 U.S. at 98-99. The Court explained that “[t]he 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.” Id. at 99 (internal quotation and punctuation marks and citation omitted). Because the Supreme Court has rejected our previous position, SDI’s argument that the Fourth Amendment required the search team to provide all defendants a copy of the affidavit fails. We therefore conclude that the warrant did incorporate the affidavit.