Defendant not present at time of raid could not complain of its methodology

Defendant had standing as renter or owner of premises to challenge the basis for the search, but not the method of the search since he was not present. Four locations were searched in a tax protestor’s case. United States v. Kahre, 2007 U.S. Dist. LEXIS 51817 (D. Nev. July 13, 2007):

The Court finds that Defendant Robert Kahre has standing to challenge the validity of the search warrants with respect to the properties at issue. Defendant Kahre either owned the properties at issue, leased the properties, or otherwise conducted his business at the four locations searched. However, a person who is not present at the search cannot challenge the officers’ failure to knock and announce or present the warrant. United States v. Silva, 247 F.3d 1051, 1059 (9th Cir. 2001). Moreover, Fourth Amendment rights cannot be asserted vicariously. Id. Defendant Kahre was arrested at the Bank of the West and was not available to monitor any of the search locations while the search warrant was being executed. Thus, while Defendant Robert Kahre has standing as to the premises searched, he lacks standing as to the manner in which the Government executed the search warrant. Id.

. . .

B. Probable Cause to Employ “Special Entry Procedures”

Defendants also claim the Government lacked probable cause to utilize special entry procedures at the properties searched. The Affidavit indicates that the Government planned to execute simultaneous searches on the properties listed in the warrant. The Affidavit sets forth specific facts indicating the need for special procedures. For example, Defendant Robert Kahre had previously sent letters to the IRS indicating that he did not recognize IRS agents as having any legitimate law enforcement authority or the right to carry weapons. The Government also had information regarding a probable presence of armed guards on the premises to be searched. In addition, bank personnel confirmed the presence of security guards with Defendant Kahre when he visited the bank. These facts are sufficient to establish that the magistrate “had a substantial basis for … concluding that probable cause existed” as to the need for special entry procedures. Bridges, 344 F.3d at 1014 (citation omitted). Thus, the Government had probable cause to employ special procedures, including the anticipated use of reasonable force. However, as analyzed below, the Court does not opine on whether the Government used unreasonable force in carrying out the search warrants with regards to specific items of property.

. . .

IV. Scope of the Search Warrants and Unreasonable Force

. . .

As mentioned above, whether the entries and searches were conducted reasonably in this case is currently the subject of a separately pending civil action. While this Court does not ultimately issue an opinion regarding whether the Government used excessive force, in order not to bind the Court handling the civil dispute, the Court does find that the Government had probable cause to use special entry procedures. Defendant Kahre believed the IRS had no authority to carry out law enforcement activities and had made his beliefs known to the Government. Further, the Government had received information that Defendant Kahre regularly used armed security guards. Further, in his correspondence with the IRS, he had implied altercation and violent response if the IRS attempted to enter. Therefore, the Government had legitimate concerns about their safety in entering and searching the house because, according to Kahre, Kahre would have considered the IRS agents as trespassers, illegally entering and confiscating his property as well as detaining his workers.

Comment: The last sentence of the first quoted paragraph is an overbroad statement of the law, and thus legally incorrect, and the court could have used more precise language. As applied in the opinion, however, the court is correct. Therefore, that single sentence will be taken out of context by the government in the future.

The court also dealt with whether the warrant was overbroad, which it was, but it was saved by the affidavits for warrants which were stapled to the search warrants and at the scene:

While the search warrant at issue alone does not satisfy the particularity requirement, the search warrant references Attachments A and B, as well as the relevant affidavit. Attachment A indicates the properties to be searched, and Attachment B contains a list of items to be seized. While the Defendants argue the Government failed to present the affidavit at each search site, the Court finds that the affidavit was available at each property the Government searched. The evidence presented at oral argument establishes that Government did in fact attach the affidavit to the warrant. The xerox copies of the attachments reveal identical staple marks to the accompanying warrant. In addition, Defendants failed to present sufficient evidence at oral argument to establish that the Government failed to attach the affidavit to the warrant. Accordingly, the warrant, accompanied by attachments, satisfies the particularity requirement. See Ramirez, 298 F.3d at 1026.