FL3: Some discretion in the seizing officers as to what should be seized was not unreasonable or a lack of particularity

Some discretion in the seizing officers as to what should be seized was not unreasonable or a lack of particularity. An unfilled-in blank on the warrant didn’t make it vague, either. Also, defendant waived his probable cause argument on appeal by counsel’s statement in the trial court that the constitutionality of the contact of the warrant was the only issue and probable cause was not an issue. State v. Aaron, 2020 Fla. App. LEXIS 11332 (Fla. 3d DCA Aug. 12, 2020). As to particularity:

The warrant at issue in this case was clearly not a general warrant; it specified exactly what was to be seized: “two blood samples approximately an hour apart ….” Consequently, the warrant was not overbroad, and it did not violate the particularity requirement. The trial court’s order appears to take the particularity requirement out of context by focusing on the language in Nelson having to do with an officer’s discretion: “nothing should be left to the discretion of the officer executing the warrant.” See Nelson, 542 So. 2d at 1045. In other words, the trial court invalidated the warrant not because it was overbroad, giving the officers discretion to make an unconstitutional general search, but because the blood sample seized pursuant to the warrant was more limited than what the warrant permitted. We find no support for this position.

The impermissible discretion referred to in cases dealing with the particularity requirement clearly has to do with discretion to perform a general, overbroad search. See Carlton, 449 So. 2d at 252 (“[T]he requirement limits the searching officer’s discretion in the execution of a search warrant, thus safeguarding the privacy and security of individuals against arbitrary invasions by governmental officials.”). Nothing about this requirement suggests that conducting a search that is more limited in scope than what a valid warrant permits somehow invalidates the warrant because the searching officer exercised some level of discretion.

As explained by the United States Court of Appeals for the Ninth Circuit when confronted with this same argument:

The purpose of having a particularized, as opposed to general, warrant is to “‘assure [ ] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.'” Groh v. Ramirez, 540 U.S. 551, 561, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (quoting United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977)). In other words, a search warrant gives an officer the “power” to seize the items specified in the warrant. While an officer generally does not have the power to seize anything not specified in the warrant, he retains discretion over the execution of the search and, as is implicit in the word “power,” can exercise discretion to leave items that may arguably come within the literal terms of the search warrant.

San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 973-74 (9th Cir. 2005); see also Strauss v. Stynchcombe, 224 Ga. 859, 165 S.E.2d 302, 307 (1968) (“We do not believe that it was the intention of the Supreme Court of the United States … to lay down any such rule as contended for by appellant that the searching and seizing officer be left no room to make a judgment as to what particular documents or things are subject to seizure under the warrant which he is executing. It is difficult to imagine that a case could arise where an officer executing a valid search warrant would not at some stage in the matter be required in the very nature of things to exercise his judgment as to what thing or things or person or persons were to be seized under the warrant.”).

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