The affidavit for the search warrant here was for evidence of rioting issued months after the riot, and it led to finding a weapon and some drugs and a cell phone seizure and search. To invoke the good faith exception, the government had to show that the officer had some reasonable reliance on the affidavit in support that was so lacking, except that no one else at the search ever read it. United States v. Atencio, 2022 U.S. Dist. LEXIS 79576 (D.Idaho Apr. 29, 2022):
The right of an individual to retreat into her own home and “there be free from unreasonable governmental intrusions stands “at the very core” of the Fourth Amendment’s protections. Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961); Craighead, 539 F.3d at 1083 (referring to the home as “the most constitutionally protected place on earth.”) And, the scope of a permissible search depends on the specific spaces in which the object of the search might be found. Maryland v. Garrison, 480 U.S. 79, 84-85, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987) (“Garrison”). “Authorization to search of an item fitting in the palm of a hand, like a cell phone, thus can entail an intrusive inspection of all corners of a home.” Griffith, 867 F.3d at 1272. As such, the search at issue involved an especially invasive search of an especially protected place. Id. As explained above, officers here sought and obtained authorization to continue their search until they found every cell phone and electronic device in 611 16th Avenue North, despite lacking any information to suggest Maricela owned such a device, or that evidence of Bernal’s crime could be found on such a device if she owned one.
Put simply, there was nothing in the affidavit to establish a fair probability that guns or ammunition, or cell phones or other electronic devices containing information regarding Bernal’s crime, could be found in 611 16th Avenue North.
. . .
The Fourth Amendment’s particularity requirement “is not a mere technicality: it is an express constitutional command.” Ramirez, 976 F.3d at 951. Warrants reciting generic classifications without more usually do not give the officers who execute them guidance to determine what items to seize. United States v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982). “[G]eneric classifications in a warrant are acceptable only when a more precise description is not possible.” Id. (quoting United States v. Bright, 630 F.2d 804, 812 (5th Cir.1980)). As explained above, more precise description was possible based on the information known to Richardson at the time he executed his affidavit. Thus, the generic classifications with respect to evidence of home ownership/occupancy, gang indicia, and all cell phones and other electronic devices violated the Fourth Amendment.
. . .
In addition, there is no evidence in the record to suggest Woodward—the lead investigator in this case—or any of the other officers who executed the warrant, relied upon Richardson’s affidavit.10Link to the text of the note Dkt. 46, at 31:3-6. Woodward testified that when he executed the warrant, he “did not know the particulars” of the Nampa riot. Id. at 38:17-19. While Woodward explained he briefly read Richardson’s affidavit prior to serving the warrant, he could not remember which parts of the affidavit he had reviewed. Id. at 39:2-6. When questioned whether he had sufficiently reviewed the affidavit, Woodward again confirmed, “I did not know the particulars.” Id. at 39:7-14. Woodward did not bring the affidavit with him to the search. Id. at 45:9-10. He could not say whether the affidavit contained any information to suggest Maricela wore gang attire during the Nampa riot, whether Maricela owned a cell phone, whether Maricela had ever met Bernal, or whether Bernal had ever been to Maricela’s home. Id. at 67:20-68:20. Woodward also couldn’t recall what evidence the warrant authorized the officers to search for and seize. Id. at 65:15-25. In fact, Woodward testified that the warrant did not authorize the seizure of electronic devices, and that he did not seize any cell phones, until confronted with his report, which showed that he had seized both. Id. at 66:1-17.
The good faith exception “requires a sincerely held and objectively reasonable belief that the warrant is based on a valid application of the law to all known facts. Good faith is not a blanket excuse for any police behavior.” United States v. Reilly, 76 F.3d 1271, 1273 (2d Cir. 1996). Here the evidence suggests the officers who executed the search warrant did not review Richardson’s affidavit, and consequently they cannot claim they acted in good faith. Even if they had reviewed it, the affidavit was, as explained above, so lacking in probable cause and particularity that the good faith exception does not apply. Leon, 468 U.S. at 923.
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)