CA6: Seizure under SW was valid despite a catchall phrase because it was severable; suppression of phone search reversed

Defendants were suspected of committing a series of home invasion robberies, and they were charged with racketeering. The district court suppressed the searches of their phones for the use of language too general. The government concedes there was an overbroad catchall phrase, but nothing was seized under that section of the warrant. A commonsense reading of the warrant makes it valid, and the suppression order is reversed. United States v. Castro, 2018 U.S. App. LEXIS 2943 (6th Cir. Feb. 7, 2018):

Andresen v. Maryland considered a warrant that permitted the seizure of “fruits, instrumentalities and evidence of crime at this (time) unknown.” 427 U.S. at 479. The word “crime,” the Court held, should not be read in isolation to encompass all crimes but to refer only to the crime of false pretenses mentioned earlier in the warrant. Id. at 480-81. A similar conclusion fits this case. See United States v. Johnson, 690 F.2d 60, 64-65 (3d Cir. 1982) (upholding a warrant for “a crime” and “a criminal offense”).

This interpretation also respects another imperative in reading warrants: They need not meet the rigors of Roget, Merriam, Webster, Strunk, and White. A commonsense contextual reading usually suffices, and usually gets the point the magistrate and officer sought to express. See Illinois v. Gates, 462 U.S. 213, 235-36 (1983).

Consider an analogy. Suppose a mother gave her teenager a grocery list that said: “I checked the pantry and we are out of Cheerios. Please go to the market and buy a box of cereal.” The mother would be irritated if the teenager came home with a box of barley. Sure, barley is a cereal-of sorts-and, sure, it comes in a box, but the full statement and the context in which it was made would inform a reasonable person that the mother meant a box of breakfast cereal. So also today: Context shows that “a crime” refers only to the list of crimes already mentioned.

The catch-all phrase tacked onto the operative sentence in each warrant–“any other files, deleted or not involved in this or any other unlawful activities”–does not alter this conclusion. The government (to its credit) concedes that this phrase sweeps too broadly. But an “infirmity due to overbreadth does not doom the entire warrant.” United States v. Greene, 250 F.3d 471, 477 (6th Cir. 2001). The remedy is to sever the offending phrase from the warrant, suppress any evidence collected under it, and admit the evidence collected under the valid portions that remain. Id.; see also 2 Wayne R. LaFave et al., Search and Seizure § 4.6(f) (5th ed. 2017); cf.Cassady v. Goering, 567 F.3d 628, 649 (10th Cir. 2009) (McConnell, J., dissenting) (recognizing that “every federal court to consider the issue has adopted the doctrine of severance”). Both warrants are good candidates for this remedy. In each warrant, the invalid section appears at the end of the operative sentence and can be severed without changing the meaning of the valid sections of the warrant. The remaining valid sections are “sufficiently particularized, distinguishable from the invalid portions, and make up the greater part of the warrant.” United States v. Sells, 463 F.3d 1148, 1151 (10th Cir. 2006). Nothing in the record shows that any evidence was seized under this section.

Castro makes several contrary arguments, all unconvincing. She points to three decisions from sibling circuits that invalidated warrants based on the use of the phrase “a crime.” But none tracks Castro’s case. In United States v. George, 975 F.2d 72 (2d Cir. 1992), the Second Circuit held that the warrant swept too broadly after finding that “[n]othing on the face of the warrant tells the searching officers for what crime the search is being undertaken.” Id. at 76. The Tenth Circuit did much the same thing in Cassady v. Goering, noting that “the warrant did not confine the scope of the search to any particular crime.” 567 F.3d at 635. The same goes for Center ArtGalleries-Hawaii, Inc. v. United States, 875 F.2d 747 (9th Cir. 1989), which said that “[t]he warrants’ provision for the almost unrestricted seizure of items which are ‘evidence of violations of federal criminal law’ without describing the specific crimes suspected is constitutionally inadequate.” Id. at 749-50. In visible contrast to each of these cases, Castro’s warrants describe the targeted crimes: aggravated robberies.

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