The “evidence of dominion and control provision” sought in this child pornography search warrant made it overbroad. United States v. Holcomb, 2025 U.S. App. LEXIS 7135 (9th Cir. Mar. 27, 2025). The first paragraph:
This case raises a variation of the familiar but always troubling issue of whether someone can be prosecuted for despicable criminal conduct based on evidence obtained in violation of the United States Constitution. In the circumstances of this case, respect for the Constitution and the rule of law requires an answer of “no.”
The court’s summary:
The panel held (1) the “dominion and control” provision of a second warrant to search Holcomb’s computer was invalid because it was both overbroad and insufficiently particular; (2) the good-faith exception does not apply to the examiner’s search of the computer; and (3) the plain view doctrine does not independently justify the examiner’s seizure of the videos. Starting with overbreadth, the Government has failed to identify any meaningful limitation on the scope of the dominion and control provision. As noted above, the dominion and control provision authorized the state to seize “[f]iles[,] artifacts or information including but not limited to[] documents, photographs, videos, e-mails, social media posts, chats and internet cache that would show dominion and control for the [computer].”
Unlike the other provisions of the warrant—which were limited to communications between Holcomb and J.J., surveillance footage depicting Holcomb or J.J., location data, and the computer’s search history—the dominion and control provision was not limited to a particular type of evidence. In addition, again unlike the other provisions, the dominion and control provision lacked any temporal limitation, thereby authorizing the state to open and examine any file from any time period, including files that long predated the alleged assault. The Government conceded as much at oral argument, stating that “almost any file could be opened to determine if it was responsive” to the dominion and control provision.
From the opinion:
In actuality, the affidavit underlying the second warrant set forth no grounds to find probable cause to conduct a search—much less a limitless search—for dominion and control evidence. In fact, apart from the portion of the affidavit restating the dominion and control provision, the affidavit does not otherwise mention dominion or control. To the extent that the affidavit alludes to dominion and control at all, it simply recounts how Holcomb initially “provided written permission to search for both his desktop and laptop computers,” how Holcomb “advised police that he revoked his previous consent to search both his computers,” and how the Government was “therefore applying for a search warrant in order to search [the] devices.” Excerpts of Record 134 (emphases added). At most, these statements suggest that Holcomb had dominion and control over the computer. They do not establish probable cause to review all the files on Holcomb’s computer to determine if they might bear on the issue of dominion and control. We therefore conclude that the second warrant’s dominion and control provision was overbroad.
We similarly conclude that the dominion and control provision was insufficiently particular. As we have explained, “[t]he purpose of particularizing the items to be seized is to insure that when the warrant is executed, nothing is left to the officer’s discretion.” United States v. Hurt, 795 F.2d 765, 772 (9th Cir. 1986), amended on denial of reh’g, 808 F.2d 707 (9th Cir. 1987). Because Holcomb’s computer contained thousands of files and because the dominion and control provision did not contain any temporal limitations, the examiner simply exercised his unfettered discretion in determining which files to scroll past and which files to open and examine pursuant to that provision. On that basis alone, we can conclude that the dominion and control provision was insufficiently particular.
It is true that in assessing whether a warrant provision is sufficiently particular, we also consider whether it would have been “reasonable” for the Government to “provide a more specific description of the items [to be searched] at that juncture of the investigation.” United States v. Banks, 556 F.3d 967, 973 (9th Cir. 2009); see also United States v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982) (“Generic classifications in a warrant are acceptable only when a more precise description is not possible.”). Here, the Government was well aware of the relevant time period, as it was investigating a single incident that took place in a particular location on a specific date. Every provision of the second warrant except for the dominion and control provision therefore was limited to the period surrounding that incident. The Government has failed to put forth a persuasive reason why the dominion and control provision could not be similarly limited to that period. Accordingly, we conclude that the dominion and control provision was insufficiently particular.
Both because it was overbroad and because it was insufficiently particular, the dominion and control provision effectively transformed the second warrant into a general warrant. Although the other provisions of the warrant sought to limit the warrant’s scope to narrow categories of evidence that were relevant to the alleged sexual assault of J.J. and for which there was probable cause to search, the dominion and control provision effectively allowed the Government to engage in the sort of “exploratory rummaging in a person’s belongings” that the Fourth Amendment’s warrant requirement was intended to prevent. United States v. Wright, 667 F.2d 793, 797 (9th Cir. 1982) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)). Indeed, the examiner viewed footage uploaded years before the alleged assault, including several intimate videos of Holcomb and Liddle.
The partial dissent would hold that the dominion and control provision is severable from the rest of the second warrant. Indeed, we have “embraced the doctrine of severance, which allows us to strike from a warrant those portions that are invalid and preserve those portions that satisfy the Fourth Amendment.” United States v. Flores, 802 F.3d 1028, 1045 (9th Cir. 2015). If, after striking invalid provisions of a warrant, we conclude that others are valid, then evidence seized pursuant to the valid provisions need not be suppressed. See United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir. 1984). In this case, the Government has argued only that “[t]he child-rape videos were dominion-and-control evidence.” The Government has never asked us, or the district court, to conduct a severability analysis. Therefore, any such argument is waived or forfeited. See United States v. Holmes, 121 F.4th 727, 739 (9th Cir. 2024) (holding that arguments not raised to the district court are forfeited); Bolin v. Davis, 13 F.4th 797, 809 n.4 (9th Cir. 2021) (holding that arguments not raised in a party’s opening brief are forfeited).
