CA10: Catch-all phrase with “not limited to” in SW makes it overly general and no GFE

In an unpublished opinion (that will at least be in Federal Appendix), the Tenth Circuit holds that the use of a “catch-all” phrase and “not limited to” in a search warrant made it incurably overbroad. The court also held that the good faith exception did not apply because the warrant was so general that “no reasonable officer could rely on it.” United States v. Dunn, 2017 U.S. App. LEXIS 25044 (10th Cir. Dec. 12, 2017). The headings of the opinion summarize it:

B. The particularity requirement was violated.

When deciding whether a warrant is sufficiently particular, we consider whether the warrant’s description of the items to be searched would enable “the searcher to reasonably ascertain and identify the things authorized to be seized.” United States v. Sells, 463 F.3d 1148, 1154 (10th Cir. 2006) (quoting United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988)). The particularity requirement prevents overly general searches, ensuring that searches are confined to evidence relating to particular crimes in which there is probable cause. Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985).

1. Catch-all phrases can impermissibly widen the scope of warrants.

The warrant here listed particular items to be searched, but prefaced the list with a catch-all phrase, stating that the items to be searched “include but are not limited to” the listed items. A similar catch-all phrase was addressed in Cassady v. Goering, 567 F.3d 628 (10th Cir. 2009). There we invalidated a warrant that listed items but contained a catch-all phrase authorizing officers to search for “all other evidence of criminal activity.” Cassady, 567 F.3d at 635.

The warrant here is even broader than the one in Cassady. Unlike the warrant in Cassady, the warrant here includes items that do not necessarily constitute evidence or fruits of a crime. For example, when listing the purposes for the search, the warrant authorized a search not only for evidence involving the means of committing a crime, but also for the all-encompassing reason “other.” In this way, the warrant effectively authorized a search of everything in the apartment for any reason. Under Cassady, the warrant lacks particularity.

2. The specific catch-all phrase “not limited to” was used in Mr. Dunn’s warrant.
a. “Not limited to” language does not render the warrant sufficiently particular in our case.
b. The specificity of the listed items does not limit the scope of the catch-all phrase.
3. The accompanying affidavit did not cure the lack of particularity in the warrant.
4. The defective parts of the warrant are not severable.
5. Summary
III. The good-faith exception does not preclude application of the exclusionary rule.
A. Standard of Review
B. The good-faith exception does not apply.
C. No officer could have reasonably regarded the warrant as valid.
D. The government’s reliance on public policy is misguided.