Defendant showed standing on the totality to challenge the search of the property where he rented a room. Particularity was shown for the place to be searched. United States v. Dolphay, 2021 U.S. Dist. LEXIS 66415 (D. Mont. Apr. 6, 2021). The court explains the Ninth Circuit’s particularity standard:
The Ninth Circuit concentrates on the following factors in evaluating particularity: (1) whether probable cause exists to seize all items of a particular type of items described in the search warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate the items subject to seizure from those which are not; and, (3) whether the government was able to describe the items subject to seizure more particularly considering the information available to it at the time the search warrant was issued. Spilotro, 800 F.2d at 964. Given the analysis of these factors below, the Phillips County Search Warrant (Doc. 16-1) proves sufficiently particular.
Regarding the first factor, probable cause exists to search all the parcels described in the search warrant. The warrant identifies the places to be search as all of the outbuildings, shops, and outdoor areas of Wayne Dolphay’s property in Hill County, MT. Doc 16-1. The search warrant described Wayne’s property by providing the legal descriptions of the four adjoining parcels of land. Glenn Dolphay told the PCSO that he personally had seen Morrison’s ATV on Wayne’s property. He also said that he had seen Wayne work on Morrison’s ATV in the only shop on the property. This information constitutes probable cause to believe officers would find Morrison’s ATV on Wayne’s property, either in the outdoor areas or within one of the outbuildings or shops. It proves reasonable, therefore, that the search warrant authorized officers to search all of the outbuildings, shops, and outdoor areas of the four adjoining parcels.
Regarding the second factor, the search warrant articulates objective standards to differentiate the places that were to be searched from the places that were not. The search warrant primarily authorizes officers to search those places that officers reasonably might find Morrison’s ATV. In this case: all the outbuildings, shops, and outdoor areas of Wayne’s property. The search warrant would not authorize officers to search places that could not contain Morrison’s ATV. See United States v. Ross, 456 U.S. 798, 821, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). This practical limitation excludes searching any place too small to find an ATV, such as a small cupboard inside a building or inside a vehicle’s glove compartment. This limitation excludes searching any place where a person could but would not reasonably keep an ATV, like a person’s bedroom. Consistent with this principle, Deputy Lytle testified that officers had no intention of searching Wayne’s house because they did not anticipate finding Morrison’s ATV in it.
Regarding the third factor, officers reasonably could not describe the places to be searched with any more particularity. The movable nature of an ATV makes it impractical for the search warrant to specify the location where officers would find an ATV with any more particularity. The search warrant reasonably narrows the scope to those places where one reasonably might keep an ATV: all the outbuildings, shops, and outdoor areas of Wayne’s property. See Ross, 456 U.S. at 821. As depicted in the google maps image contained in the search warrant application, the outbuildings and shops are clustered in the center of the property with cultivated cropland and pastureland surrounding the occupied areas. Officers never searched the only house located on the other side of the property.
Defendant Dolphay makes much of the fact that the search warrant does not specify which of the outbuildings and shops are located on which of four adjoining parcels. Doc. 16 at 14. The Court finds this issue largely irrelevant. All of the buildings were located on a contiguous parcel of property owned by Wayne Dolphay. To state this fact in the search warrant would have added nothing of substance to the warrant.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)