Search warrant to search but not mentioning “seize” did not preclude seizure under the warrant

Oregon holds that a search warrant that mistakenly only authorized a search but did not mention a seizure did not prevent a seizure, at least under plain view doctrine, because the police were lawfully inside the premises. State v. Carter, 342 Ore. 39 (November 24, 2006), aff’g in part 200 Ore. App. 262, 113 P.3d 969 (2005):

The history confirms what the text of Article I, section 9, and this court’s cases construing it demonstrate. The purpose of the particularity requirement was to prevent the use of general warrants — to ensure that a warrant described with particularity the person to be seized, the place to be searched, or the thing to be seized. Nothing in that history suggests that the framers intended to require that every warrant authorize both a search and a seizure, as defendant argues. Considering the text of Article I, section 9, this court’s cases construing that provision, and its history, we conclude that a warrant that authorizes only a search or only a seizure is facially valid under Article I, section 9.

Defendant raises a second argument. He contends that, unless a warrant authorizes a seizure as well as a search, it will be an impermissible general warrant. The question, however, whether a warrant authorizes both a search and a seizure has nothing to do with the question whether it is a general warrant. A warrant that authorized both a search and a seizure could do so in the most general terms and thus could run afoul of the particularity requirement. See Reid, 319 Ore. at 69-70 (describing vice of general warrants); Joseph Story, 3 Commentaries on the Constitution of the United States 748-50 (1833) (same). Conversely, a warrant that authorized only a search or only a seizure may be sufficiently particular — a proposition that the warrant in this case illustrates. The warrant in this case authorized the officers to search only for specific types of evidence in defendant’s home. It thus limited the areas in which they could search and avoided the vice inherent in general warrants.

The Court of Appeals correctly held that the warrant at issue here was facially valid. Given the state’s concession that the warrant does not authorize a seizure as well as a search, the Court of Appeals permissibly remanded the case to the trial court to determine whether the officers could seize the evidence (that they did seize) under the plain view doctrine. In the context of this case, that doctrine permitted the officers to seize evidence without a warrant if, in the course of executing this search warrant and while they were in a place where they had a right to be, they had probable cause to believe that evidence that they saw was either contraband or evidence of a crime. See State v. Sargent, 323 Ore. 455, 463 n 5, 918 P.2d 819 (1996) (evidence of a crime in plain view); State v. Lippert, 317 Ore. 397, 403, 856 P.2d 634 (1993) (contraband in plain view).

Affidavit for search warrant was supported by probable cause, which is a “fair probability” that evidence would be found. Also, the officers corroborated the informant’s information. In any event, the good faith exception would also apply. United States v. Amaya, 2006 U.S. App. LEXIS 29109 (10th Cir. November 22, 2006)* (unpublished).

A bank robber had no reasonable expectation of privacy in his bank records or car rental records from production at trial. “‘[A]n individual has no claim under the fourth amendment to resist the production of business records held by a third party.’ In re Grand Jury Proceeding, 842 F.2d 1229, 1234 (11th Cir. 1988). In short, Grimmette had no Fourth Amendment right of privacy in these records kept and maintained by Wachovia Bank and Accent Car Rental.” United States v. Grimmette, 208 Fed. Appx. 709 (11th Cir. 2006)* (unpublished).

Excessive nervousness, rambling conversation, and masking odor all added up to reasonable suspicion. United States v. Powell, 2006 U.S. Dist. LEXIS 85018 (D. Kan. November 21, 2006).*

Today’s AJC article on the Atlanta SWAT shooting is here. It adds nothing new.