D.Idaho: To claim GFE, govt at least should have shown the officers read the inadequate affidavit to show reasonable reliance

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.

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