N.D.Tex.: Size and breadth of a document seizure does not make the warrant general

The size and breadth of a document seizure does not mean that the warrant was general. United States v. Simpson, 2011 U.S. Dist. LEXIS 20752 (N.D. Tex. March 2, 2011):

Simpson primarily argues that the unprecedented volume of seized evidence supports his argument that the warrants are general warrants. But the unprecedented volume of seized evidence may instead reflect the scope of the alleged conspiracy and the criminal activities, which are factors the court can consider in determining whether the warrant meets the particularity requirement. See, e.g., United States v. Triumph Capital Grp., Inc., 211 F.R.D. 31, 57 (D. Conn. 2002); Andresen, 427 U.S. at 480-82 n.10 (considering complexity of alleged real estate scheme in holding that list of specific items was not general warrant). In short, the broadness or scope of a warrant does not of itself dictate that the warrant is an unconstitutional general warrant.

This warrant was broad, to be sure, but it was not “general.” The warrant was rather specific about what could be searched and seized. Although the description encompassed virtually all of the business records of the corporation, that does not mean that the warrant lacked particularity; it simply means that it was extremely broad.

United States v. Logan, 250 F.3d 350, 363 (6th Cir. 2001) (citation omitted); see also United States v. Smith, 424 F.3d 992, 1006 (9th Cir. 2005) (“The warrant’s Attachment B describes with sufficient specificity the types of documents and property sought. Potentially problematic is its breadth[.]”). Simpson’s argument is therefore misplaced. Particularity does not turn on the volume of what was authorized to be seized or what was seized pursuant to the warrant.

Instead, to determine whether a warrant meets the particularity requirement, the court decides “whether an executing officer reading the description in the warrant would reasonably know what items are to be seized.” Kimbrough, 69 F.3d at 727. (citation omitted). In some situations, the Fourth Amendment is not violated by the use of generic language. “In circumstances where detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized.” Id. “There is no requirement that the government agents know in advance the specific items of evidence to be seized or that the items seized do in fact evince a crime, so long as they are within the scope of a properly authorized warrant.” United States v. Cantu, 774 F.2d 1305, 1308 (5th Cir. 1985) (per curiam). A warrant does not need to specifically identify each document to be seized. See Triumph Capital, 211 F.R.D. at 57. The only relevant inquiry is whether, “in light of the nature of the activity under investigation, and the manner of storing the information, [the warrant was] as particular as it could be.” Logan, 250 F.3d at 363; see also Triumph Capital, 211 F.R.D. at 57 (“In determining whether the particularity requirement is satisfied, the court is entitled to place a great deal of weight on whether the warrant is as particular as reasonably could be expected under the circumstances.”). And “[t]he complexity of the crimes under investigation is a factor the court may consider in making this determination.” Triumph Capital, 211 F.R.D. at 57.

[Note: F.R.D. cases are not in Google Scholar.]