D.Mont.: Particularity for the property to be searched was shown

Defendant showed standing on the totality to challenge the search of the property where he rented a room. Particularity was shown for the place to be searched. United States v. Dolphay, 2021 U.S. Dist. LEXIS 66415 (D. Mont. Apr. 6, 2021). The court explains the Ninth Circuit’s particularity standard:

The Ninth Circuit concentrates on the following factors in evaluating particularity: (1) whether probable cause exists to seize all items of a particular type of items described in the search warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate the items subject to seizure from those which are not; and, (3) whether the government was able to describe the items subject to seizure more particularly considering the information available to it at the time the search warrant was issued. Spilotro, 800 F.2d at 964. Given the analysis of these factors below, the Phillips County Search Warrant (Doc. 16-1) proves sufficiently particular.

Regarding the first factor, probable cause exists to search all the parcels described in the search warrant. The warrant identifies the places to be search as all of the outbuildings, shops, and outdoor areas of Wayne Dolphay’s property in Hill County, MT. Doc 16-1. The search warrant described Wayne’s property by providing the legal descriptions of the four adjoining parcels of land. Glenn Dolphay told the PCSO that he personally had seen Morrison’s ATV on Wayne’s property. He also said that he had seen Wayne work on Morrison’s ATV in the only shop on the property. This information constitutes probable cause to believe officers would find Morrison’s ATV on Wayne’s property, either in the outdoor areas or within one of the outbuildings or shops. It proves reasonable, therefore, that the search warrant authorized officers to search all of the outbuildings, shops, and outdoor areas of the four adjoining parcels.

Regarding the second factor, the search warrant articulates objective standards to differentiate the places that were to be searched from the places that were not. The search warrant primarily authorizes officers to search those places that officers reasonably might find Morrison’s ATV. In this case: all the outbuildings, shops, and outdoor areas of Wayne’s property. The search warrant would not authorize officers to search places that could not contain Morrison’s ATV. See United States v. Ross, 456 U.S. 798, 821, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). This practical limitation excludes searching any place too small to find an ATV, such as a small cupboard inside a building or inside a vehicle’s glove compartment. This limitation excludes searching any place where a person could but would not reasonably keep an ATV, like a person’s bedroom. Consistent with this principle, Deputy Lytle testified that officers had no intention of searching Wayne’s house because they did not anticipate finding Morrison’s ATV in it.

Regarding the third factor, officers reasonably could not describe the places to be searched with any more particularity. The movable nature of an ATV makes it impractical for the search warrant to specify the location where officers would find an ATV with any more particularity. The search warrant reasonably narrows the scope to those places where one reasonably might keep an ATV: all the outbuildings, shops, and outdoor areas of Wayne’s property. See Ross, 456 U.S. at 821. As depicted in the google maps image contained in the search warrant application, the outbuildings and shops are clustered in the center of the property with cultivated cropland and pastureland surrounding the occupied areas. Officers never searched the only house located on the other side of the property.

Defendant Dolphay makes much of the fact that the search warrant does not specify which of the outbuildings and shops are located on which of four adjoining parcels. Doc. 16 at 14. The Court finds this issue largely irrelevant. All of the buildings were located on a contiguous parcel of property owned by Wayne Dolphay. To state this fact in the search warrant would have added nothing of substance to the warrant.