CA10: Overbroad search warrant was general warrant exposing officer to civil liability

A search warrant for any evidence of crime was unconstitutionally overbroad and not limited by the affidavit. Severance was not possible. Cassady v. Goering, 2009 U.S. App. LEXIS 11736 (10th Cir. May 28, 2009):

The warrant here is ungrammatical and difficult to read in many respects. It authorized the search of the entire farm, including Mr. Cassady’s house, and the seizure of “[a]ny & all narcotics,” “[a]ny and all illegal contraband” and various specific items mostly related to a narcotics operation. See attached Ex. A. In addition, however, and most damaging to Mr. Goering’s argument, the warrant expressly permitted the search and seizure of “all other evidence of criminal activity” as well as personal property that was stolen, embezzled, or otherwise illegal; or was designed, intended, or had been used to commit a criminal offense; or would be material evidence in a criminal prosecution in Colorado or any other state; or the seizure of which was expressly required, authorized, or permitted by any Colorado statute. Id. Hence, the warrant did not confine the scope of the search to any particular crime. The officers only had probable cause to search for evidence related to marijuana cultivation, yet the warrant authorized the seizure of all possible evidence of any crime in any jurisdiction. Consequently, “[t]he warrant[] allowed precisely the kind of rummaging through a person’s belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the fourth amendment proscribes.” Voss, 774 F.2d at 405.

The affidavit, which was incorporated by reference, does not save the warrant. See attached Ex. B. The only grounds it provides are Queen’s statement that he saw marijuana plants on the farm, and Mr. Cassady’s 1992 arrest for a marijuana-related offense. It makes no mention of the affiant’s training or expertise in narcotics investigations, and it is no more particular than the warrant, containing virtually identical language describing the items to be seized.

We cannot accept Mr. Goering’s argument that the officers understood the language permitting seizure as limited to evidence of marijuana-related activities only. We have previously invalidated warrants substantially more particularized than the one at issue here.

. . .

Mr. Goering contends “[t]here is no constitutional violation merely because of words in a warrant where there is no resulting unconstitutional search.” Aplt. Br. at 21. Even assuming the general rummaging that apparently occurred here could conceivably be characterized as a “constitutional” search, it is well-settled that “mere words” in a warrant in and of themselves can violate the Fourth Amendment. In Groh v. Ramirez, 540 U.S. 551 (2004), the Supreme Court rejected the argument that a lawfully conducted search could be reasonable under the Fourth Amendment despite an invalid warrant:

We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant. … The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

Id. at 559-60 (internal quotation marks and citations omitted). Thus, Mr. Goering’s attempt to separate the authorization of the search from the execution of the search is a red herring – a violation of the warrant requirement is itself a violation of the Fourth Amendment.

. . .

Neither Mr. Goering nor the dissent point us to even one case where the severability doctrine has been applied to a warrant containing such a broad and invasive provision authorizing a search for and seizure of any and all evidence of criminal activity which is wholly unrelated to the crime for which there was probable cause. As we have stressed, severance is not appropriate in every case.

This was the officer’s first search warrant application.