S.D.Tex.: Particularity and GFE are lacking; hearing set on motion to suppress

Neither the affidavit nor search warrant apparently sufficiently limit the search. The court has difficulty applying the good faith exception without a hearing on the motion to suppress. United States v. Mokbel, 2021 U.S. Dist. LEXIS 191789 (S.D.Tex. Oct. 5, 2021)*:

The government points to evidence that the affidavit here was: (1) reviewed by a federal magistrate judge in connection with the application for the search warrant; (2) included in a single digital file containing the warrant and Attachments A and B; and (3) prepared by the federal agent who coordinated the execution of the warrant. (Docket Entry Nos. 38-1, 38-2). But the government does not identify where in the current record there is evidence that the affidavit was attached to the warrant provided to the officers conducting the search, or that the affidavit was otherwise provided to or reviewed with those officers before they conducted the search. In Beaumont, Cherna, and Allen, the courts noted that an affidavit that was not attached to or incorporated into the warrant was at least provided to, or reviewed by, the officers who not only prepared the affidavit, but also those who were responsible for executing the search. A hearing will allow the court to determine whether the officer who “coordinated the search” and who had written the affidavit provided or reviewed the affidavit to or with the officers who executed the search.

If the court does not consider the affidavit, the warrant, which authorizes the search of every personal, financial, and electronic record or device within Mokbel’s home, appears to be so “facially deficient 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.” Payne, 341 F.3d at 400 (citation omitted); see also Leary, 846 F.2d at 609-10; United States v. Spilotro, 800 F.2d 959, 968 (9th Cir. 1986). Because the warrant authorizes such a broad and general search, the facts showing whether the executing officers had access to the affidavit or had sufficient information about it make a difference to the suppression decision. See Humphrey, 104 F.3d at 67, 69 (an “all records” search of the defendants’ home was permissible where a supporting affidavit showed that “the residence was the primary place of business for the defendants, where the fraud was pervasive, where there was a significant overlap in the business and personal lives of the defendants, where the defendants maintained no known bank accounts, and where the warrant was limited to financial records”); see also Davis, 226 F.3d at 349-50, 52 (the good-faith exception applied to a warrant authorizing a search of the defendant’s home and office for 15 categories of paper and electronic financial records limited by date and supported by the affidavit); United States v. Abdallah, No. H-07-cr-155, 2007 WL 4334106, at *15 (S.D. Tex. Dec. 7, 2007) (permitting a broad search supported by an affidavit).

A suppression hearing is set for October 19, 2021 at 10:15 A.M. CDT, in Courtroom 11B to enable the court to determine the role the affidavit played in the search of Mokbel’s home.