In a forfeiture case initiated with a search warrant, defects in the warrant process denied the government resort to the good faith exception for failure to apprise all the officers what they were looking for and not attaching exhibits to the warrant for clarification. There was summary judgment as to part, then it was tried to a jury, and then this appeal. In re 650 Fifth Ave. & Related Props., 2019 U.S. App. LEXIS 23769 (2d Cir. Aug. 9, 2019), prior appeal 830 F.3d 66 (2d Cir. 2016):
Nor does the record support the district court’s expediency finding with respect to the other agents and attorneys who reviewed and executed the warrant. If anything, the record suggests that the Government did not rush through these processes. As numerous FBI agents and AUSAs testified, and the district court found, “[t]he evidence does not support any material deviation from typical procedures.” Id. at *29. For example, the court found that “[t]ypically, and as occurred here,” Ennis reviewed the materials to “ensure accuracy” and then sent them to a supervising AUSA, who reviewed and approved the application. Id. at *10. Similarly, the agent who led the search team reviewed the warrant before executing the search and testified that it “did not appear unusual to her—or different from other search warrants she had been involved in executing.” Id. at *16. Some fault may lie with the magistrate for failing to ensure that the Ennis affidavit was attached to the warrant. (The magistrate’s involvement is not clear from the record.) But the lion’s share of the blame lies with the Government for neglecting to catch these errors or executing the warrant in spite of them.
Under all these circumstances, the Government’s reliance on this warrant was not “objectively reasonable.” See Leon, 468 U.S. at 922. To the contrary, the fact that these glaring deficiencies survived the Government’s typical process for drafting, reviewing, and executing warrants indicates “grossly negligent disregard for Fourth Amendment rights.” See Davis, 564 U.S. at 238 (quotation marks omitted). In the presence of gross negligence, “the deterrent value of exclusion is strong and tends to outweigh the resulting costs.” Id.
Applying the exclusionary rule on these facts would advance its deterrent rationale. The Government drafted an exceptionally broad and facially defective warrant, multiple trained officers and attorneys failed to address this problem, and a team without particularized knowledge of the proper scope of the search seized over two hundred boxes of evidence and several computers. Prohibiting the Government from reaping the spoils of its deficient procedures would deter it from making the same mistakes in the future.
The cost to the Government of improving its review process would be minimal. A simple checklist could have solved the failures to incorporate a supporting affidavit and identify the alleged crimes. The Fourth Amendment protection would mean little if officers acting under facially deficient warrants were free to ransack troves of private property without clear ground rules laid down by a judge.
The Government may not rely on the good-faith exception.
. . .
2. We REVERSE in part and VACATE in part the court’s order denying the motion to suppress evidence obtained from 500 Fifth Avenue on December 19, 2008. We reverse with respect to the holding that the Government can rely on the good-faith exception to the exclusionary rule. However, we vacate with respect to the inevitable-discovery holding. On remand, the court shall require the Government to submit a chart or similar exhibit documenting how it would have obtained each particular piece of evidence that the Claimants challenge. At minimum, this must include materials that informed the drafting of the amended complaint, as well as materials the Government has already used in this proceeding or intends to use at trial. If the Government fails to make this showing with respect to some or all of the evidence, the court must apply the exclusionary rule and, mindful that the Government relied on these materials in drafting the amended complaint, consider all other appropriate remedies.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)