CA9: The warrant defines the scope of search, not the affidavit

In a partially sealed opinion, the Ninth Circuit holds that the search warrant defines the scope of search, not the affidavit. [Could have said “tail wagging the dog” but didn’t.] United States v. Sedaghaty, 2012 U.S. App. LEXIS 27006 (9th Cir. August 23, 2013):

To adopt the government’s approach would permit a kitchen sink probable cause affidavit to overrule the express scope limitations of the warrant itself. The issue here is not whether the warrant incorporated the affidavit. That is not in doubt—instead the issue is the scope of the reference. May a broad ranging probable cause affidavit serve to expand the express limitations imposed by a magistrate in issuing the warrant itself? We believe the answer is no. The affidavit as a whole cannot trump a limited warrant.

Our cases have not dealt with this situation directly. Rather, we have considered cases in which an affidavit could cure a defective warrant. That circumstance has arisen when there is a clerical error or when the warrant is overbroad but could be cured by a particularized affidavit. Towne, 997 F.2d at 544 (affirming the “well-settled principle that a warrant’s overbreadth can be cured by an accompanying affidavit that more particularly describes the items to be seized”) (citation omitted); United States v. Bowler, 561 F.2d 1323, 1326 (9th Cir. 1977) (holding that the presence of the correct address in the sworn affidavit could correct a typographical error in the
warrant). Here, however, there is no error in the warrant for the affidavit to cure. The error is with the seizure, which exceeded the warrant’s scope. See United States v. Angelos, 433 F.3d 738, 746 (10th Cir. 2006) (noting that “it is apparent that the problem lies in the execution, and not the constitutionality, of the search warrant”). We have never held that an affidavit could expand the scope of a legitimate warrant beyond its express limitations nor do we do so here.

Our approach resonates with the D.C. Circuit’s treatment of a warrant in United States v. Kaye, 432 F.2d 647, 649 (1970): “It is the description in the search warrant, not the language of the affidavit, which determines the place to be searched.” The same principle—that it is the warrant and not the affidavit that controls—applies equally to the items to be seized. The court in Kaye explicitly rejected the argument that “the scope of the search warrant was determined or broadened by the … supporting affidavit.” Id.; see also Angelos, 433 F.3d at 746 (concluding that a search congruent with the affidavit but beyond the explicit terms of the warrant exceeded the warrant’s scope).

This approach is also supported by the Third Circuit’s decision in Doe v. Groody, 361 F.3d 232, 240 (3d Cir. 2004). Although the affidavit in Groody was not incorporated into the warrant, the court reasoned more generally that while an affidavit can be used to cure an otherwise overbroad warrant by narrowing its scope, an affidavit cannot be relied upon to authorize a search beyond the scope of a judicially authorized warrant. Id. at 241. (“Bluntly, it is one thing if officers use less than the authority erroneously granted by a judge [by relying on an affidavit to narrow the warrant]. It is quite another if officers go beyond the authority granted by the judge.”) (emphasis added). Indeed, “the warrant provides the license to search, not the affidavit.” Id.