This is one federal court’s practical explanation of how to analyze a particularity problem. United States v. Suggs, 2019 U.S. Dist. LEXIS 38071 (D. Colo. Mar. 11, 2019). The search warrants were particular enough.
A particularity challenge usually proceeds in up to four phases. At the first phase, it is the defendant’s burden to show a particularity problem on the face of the warrant. United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994) (“Generally, if the search or seizure was pursuant to a warrant, the defendant has the burden of [proving that the search violated the Fourth Amendment].” (internal quotation marks omitted)). The face of the warrant alone, without reference to other materials (e.g., the supporting affidavit), may be enough either to establish—or at least raise a sufficient suspicion of—a failure of particularity, see, e.g., Cassady v. Goering, 567 F.3d 628, 635 (10th Cir. 2009), or to dispel that suspicion, see, e.g., Andresen v. Maryland, 427 U.S. 463, 478-82, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976).
If the warrant raises particularity concerns not cured by other context on the face of the warrant, the analysis moves to the second phase. At this phase, the question is whether the affidavit in support of the warrant may be consulted to “cure” language that might otherwise be “overbroad.” Leary, 846 F.2d at 603. “Two requirements must be satisfied to reach this result: first, the affidavit and search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference.” Id. (internal quotation marks omitted; alterations incorporated). If both requirements are satisfied, the affidavit is considered part of the warrant and the context the affidavit provides may be considered. But even if these requirements are not satisfied, the task of giving the warrant a “practical” interpretation may still draw on the affidavit if “the same officer both produced the affidavit and executed the warrant.” Ortega-Jimenez, 232 F.3d at 1329.
Because this second phase is, like the first phase, dealing with practical construction of the warrant, the Court presumes that the burden remains on the defendant. This means both the factual burden of proof to show that the Leary and Ortega-Jimenez requirements are not satisfied, or, if they are satisfied, the burden of persuasion that the affidavit nonetheless fails to provide the necessary context to provide a “practical” construction that avoids particularity problems.
The third phase arises if the defendant persuades the Court that the Leary and Ortega-Jimenez requirements were not satisfied (such that the affidavit cannot be considered), or that the warrant still lacks particularity even considering the affidavit. At this phase, the question is whether the insufficiently particular parts of the warrant may be severed. “The infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant, but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized—on plain view grounds, for example—during their execution).” United States v. Brown, 984 F.2d 1074, 1077 (10th Cir. 1993) (internal quotation marks omitted; alterations incorporated). “To make the severability doctrine applicable the valid portions of the warrant must be sufficiently particularized, distinguishable from the invalid portions, and make up the greater part of the warrant.” United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993). “Greater part” is a qualitative more than a quantitative analysis. See United States v. Sells, 463 F.3d 1148, 1159-60 (10th Cir. 2006).The burden at this third phase appears to fall on neither the defendant nor the Government. The Tenth Circuit has spoken of severability as an analysis that falls on the Court, with no hint of a default presumption in favor of upholding or striking down the warrant. See id. at 1158-62.
Finally, if severability is unjustified, the fourth phase asks whether the officers executing the warrant relied on it in good faith. United States v. Leon, 468 U.S. 897, 920, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); see also Massachusetts v. Sheppard, 468 U.S. 981, 987-88, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). If a police officer’s “reliance on the magistrate’s determination of probable cause [and consequent approval of a search warrant] was objectively reasonable, [then] application of the extreme sanction of exclusion is inappropriate.” Leon, 468 U.S. at 926. But, “depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Id. at 923. The Government bears the burden to persuade the Court that the good faith exception should apply. See id. at 924 (“When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.”).
