CA1: While SW “is certainly not a model of precise drafting,” it is not constitutionally infirm

Defendant was charged with wire fraud in a scheme that had him trafficking in stolen computer parts. Local police discovered it and passed it to the FBI. A search warrant for his house produced 170 boxes of parts and his computer. Files on the computer helped prove the fraud. The warrant was not overbroad and the entirety had to be read in context. While the search warrant “is certainly not a model of precise drafting,” it is not constitutionally infirm. Besides, the good faith exception applies. United States v. Kuc, 737 F.3d 129 (1st Cir. 2013):

Kuc is certainly correct insofar as he argues that general warrants “authoriz[ing] the wholesale rummaging through a person’s property” are invalid. United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999). The particularity requirement demands that a valid warrant: (1) must supply enough information to guide and control the executing agent’s judgment in selecting where to search and what to seize, and (2) cannot be too broad in the sense that it includes items that should not be seized. Id.; see also United States v. Abrams, 615 F.2d 541, 545-46 (1st Cir. 1980). Despite Kuc’s assertions to the contrary, however, the warrant in this case did not run afoul of the particularity requirement.

Kuc’s argument misses the mark because he reads the warrant’s first clause in isolation. We recognized long ago that a warrant’s language must be read in context, such that “the ‘general’ tail of the search warrant will be construed so as not to defeat the ‘particularity’ of the main body of the warrant.” Abrams, 615 F.2d at 547 (citing Andresen v. Maryland, 427 U.S. 463, 480-81, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976)). In Andresen, the Supreme Court rejected the claim that an otherwise valid warrant was rendered impermissibly general by the addition of the phrase “together with other fruits, instrumentalities, and evidence of crime at this (time unknown),” because the phrase had to be read in context and together with the warrant’s “lengthy list of specified and particular items to be seized.” 427 U.S. at 479-81. Similarly, in United States v. Bucuvalas, 970 F.2d 937 (1st Cir. 1992), abrogated on other grounds by Cleveland v. United States, 531 U.S. 12, 18, 121 S. Ct. 365, 148 L. Ed. 2d 221 (2000), this court upheld a warrant that authorized the seizure of “[r]ecords, documents, notes and physical objects which constitute evidence of and instrumentalities of [four specified crimes], and, in particular, records, documents, notes and physical objects [evidencing specified criminal acts by the suspect].” Id. at 941 n.5. We recognized that the language “and, in particular,” simply served to transition from the first clause, which identified the criminal offenses that the evidence was expected to establish, to the second clause, which imposed more specific search constraints. Id. at 942 (“[B]ut for the search constraints in the second clause we might agree that the particularity requirement of the Fourth Amendment would not have been met. In light of the specific types of items described in the second clause, however, the warrant met the Fourth Amendment particularity requirement.”).

Here, as in Bucuvalas, the search warrant includes a transitional phrase that connects a broad first clause, which identifies the criminal offenses that the target evidence was expected to establish, with a detailed and particularized second clause. The second clause, the particularity of which Kuc does not challenge on appeal, details the companies that Kuc was suspected of defrauding as well as the aliases, street addresses, and e-mail addresses he was believed to have used in his scheme. As in Bucuvalas, the “second clause … in the instant warrant tracked the allegations … for which probable cause was established in the accompanying affidavit.” Id. The phrase “including, without limitation” is certainly not a model of precise drafting. Nevertheless, it does not make the warrant constitutionally infirm because it is a transitional phrase linking to the second, very particular clause, and it must be read in that context, as in Andresen and Bucuvalas. Thus, we agree with the district court that the “general” transitional phrase in this case should not be construed to defeat the particularity of the main body of the warrant.

Moreover, even if we were to find that the language in this case exceeded the bounds of Bucuvalas and violated the particularity requirement of the Fourth Amendment, suppression still would not be necessary pursuant to the good faith exception to the exclusionary rule. This is because — as the district court correctly noted — the warrant, read comprehensively and in context, was not so “facially deficient … that the executing officers [could not] reasonably presume it to be valid.” United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Given our holding in Bucuvalas, we cannot conclude that “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922 n.23. Thus, the good faith exception to the exclusionary rule would apply.