CA10: Computer search warrant lacked particularity but good faith exception saved it

Computer search warrant was badly drafted, and it lacked particularity. However, the good faith exception saved the search because the officer sought counsel from the USMJ and AUSA in executing it. United States v. Otero, 563 F.3d 1127 (10th Cir. 2009):

Because of this, our case law requires that “warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.” Riccardi, 405 F.3d at 862 (emphasis added).

Wisely, the government does not contest that a warrant authorizing a search of “any and all information and/or data” stored on a computer would be anything but the sort of wide-ranging search that fails to satisfy the particularity requirement. Its claim, rather, is that under a natural reading of the warrant the computer search is limited to uncovering only evidence of the mail and credit card theft along Ms. Otero’s delivery route. In other words, paragraphs six, seven, eight, and nine, which fall under the heading “COMPUTER ITEMS TO BE SEIZED,” are limited by paragraphs two, three, and five, which fall under the separate heading of “ITEMS TO BE SEIZED” and restrict the search to “information related to or pertaining to the theft of mail, the fraudulent credit cards, bank fraud and conspiracy.” App. 63.

It is true that “practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the place to be searched.” United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998) (quoting United States v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997)). A warrant need not necessarily survive a hyper-technical sentence diagraming and comply with the best practices of Strunk & White to satisfy the particularity requirement. Nor is it beyond comprehension that the inspectors in this case would subjectively read the provisions pertaining to the computer search as being subject to the same limitations as the rest of the warrant, as the district court found they did. We agree with the district court, however, that the warrant describes the items to be seized with neither technical precision nor practical accuracy, and it therefore lacks sufficient particularity.

. . .

The present case does not precisely mirror the facts of Riccardi–here, the officer who wrote the affidavit was not directly involved in the forensic analysis of the computer, but instead instructed another officer on what to search for–but we nonetheless find them substantially similar. The fact that the officer conducting the computer search had not been involved from the beginning of the investigation does not alone militate against good faith when that officer received–and, more importantly, followed–search instructions that limited the scope of his search to crimes for which there was probable cause. Moreover, one of the more important facts that the two share in common is the officers’ attempts to satisfy all legal requirements by consulting a lawyer. See id. at 864. (“By consulting the prosecutor, they showed their good faith in compliance with constitutional requirements.”). Indeed, a frequent criticism of the good faith exception is that it encourages officers not to make these consultations and “risk that some conscientious prosecutor … will say the application is insufficient when, if some magistrate can be induced to issue a warrant on the basis of it, the affidavit is thereafter virtually immune from challenge[.]” WAYNE R. LEFAVE, 1 SEARCH AND SEIZURE 68 (4th ed.). The fact that Inspector Herman, like the officer in Riccardi, made this step is an important indicator of her good faith. If more officers took such precautions we would have greater rather than less protection of Fourth Amendment rights.