D.Idaho: SW to corroborate a witness was overbroad and invalid

The search warrant for weapons here was overbroad because evidence cannot be seized just to corroborate witnesses. United States v. Barnes, 749 F. Supp. 2d 1124 (D. Idaho 2010):

Here, Barnes challenges the specificity of the description of the items to be seized along with the probable cause to make the seizure. Barnes argues that there was insufficient probable cause to seize “knives or any other instrumentality of injury” as described in the search warrant. The Government concedes that there is merit to this argument. The Government acknowledges that Officer Vargas’ explanation that other weapons were to be seized “in order to corroborate [Atchinson’s] statements” has been recently rejected by the Ninth Circuit. Millender, 2010 WL 3307491, *10. (Holding that officers were not justified in searching for evidence that was not contraband or evidence of a crime for purposes of aiding their subsequent prosecution). The Court agrees.

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In Millender, the Ninth Circuit determined that the officers had a precise description of the firearm used by the suspect in connection with the assault, and knew exactly what it needed and wanted. Therefore, the question of whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued cut against the validity of the warrant. Id. at *8.

This case is similar to Millender. With respect to the first question answered in determining whether a search warrant’s description is sufficiently specific to comply with the Fourth Amendment — whether probable cause exists to seize all items of a particular type described in the warrant — the Court concludes that it was not. Officer Vargas’ affidavit explains that three weeks earlier, Barnes obtained a handgun that was kept in the bedroom in a black, hard plastic case, and pointed it at Atchinson. Gov’t Ex. 2. The affidavit explains that Atchinson informed Officer Vargas that Barnes then pulled Atchinson’s head next to his and pointed the gun at his head and said: “see we could do this with one bullet and could get the both of us.” Id. Officer Vargas noted that Atchinson described a “revolver type handgun,” which was “silver and opening to the side to load the ammunition.” Id. Moreover, the search warrant affidavit specifically called for the search and seizure of this specific firearm. Id. The search warrant affidavit also described a sawed-off shotgun as being kept in the residence. Id.

Under these circumstances, there was probable cause to search for a specific, silver revolver type handgun — and perhaps a sawed-off shotgun. But there was nothing in the affidavit to form a basis for concluding there was probable cause to search and seize a generic class of firearms, knives and instrumentalities of injury.