Particularity was lacking for part of a warrant as to the items to be seized by the state’s use of a cross reference to a statutory definition of “documentary evidence” which was really overbroad as applied here. United States v. Joe, 2007 U.S. Dist. LEXIS 5282 (N.D. Cal. January 10, 2007):
The third sentence and fourth sentences of the warrant are problematic, however. The third sentence authorized the seizure of “all documentary evidence defined in California Penal Code 1524(f) including, all U.S. currency, buyer/seller lists, records of marijuana cultivation, trafficking, and money laundering.” California Penal Code Section 1524(f) states, “documentary evidence” includes, but is not limited to, “writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.” Cal. Penal Code § 1524(0. Although there was probable cause to search for U.S. currency, buyer/seller lists, and records of marijuana cultivation and trafficking, there was not probable cause to seize evidence of money laundering (as the government concedes), nor was there probable cause to search for all of the “documentary evidence” listed in Section 1524(f). Section 1524(f) is written extremely broadly to include, inter alia, “papers of any type or description.” The warrant could easily have been written to limit the “documentary evidence” to be seized to material with a connection to marijuana cultivation or distribution. Instead, the warrant authorized the seizure of any writings, documents, papers, etc., whether or not they were connected to marijuana cultivation. This language was overbroad, see United States v. Kow, 58 F.3d 423, 426-27 (9th Cir. 1995), and the Court severs the language “all documentary evidence defined in California Penal Code 1524(f)” and “money laundering” from the warrant. See Fulbright, 105 F.3d at 453. Any evidence obtained pursuant to this portion of the warrant is suppressed. See United States v. Clark, 31 F.3d 831, 836 (9th Cir. 1994).
The fourth sentence of the warrant authorized the seizure of “computers and related or similar devices, and information on hard or floppy drives, which may contain any documents or records as described above.” This sentence does not contain any specific limitation to criminal conduct, and instead simply references “documents or records as described above.” However, as discussed supra, a portion of the preceding sentence authorized the seizure of, inter alia, “papers of any type or description.” Because this language is overbroad, the fourth sentence’s incorporation of that language similarly renders the fourth sentence defective. Accordingly, the Court severs this sentence and suppresses any evidence seized pursuant to this portion of the warrant. See id.
A veteran detective testified at a Franks hearing that he has never put named informants’ criminal histories into an affidavit and he never will. Luckily for the government, it did not change the outcome because probable cause was otherwise shown, but the district judge did not like it. United States v. Heer, 2007 U.S. Dist. LEXIS 5151 (D. Ore. January 19, 2007):
“There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ‘(t)he criminal is to go free because the constable has blundered.'” Mapp v. Ohio, 367 U.S. 643, 659 (1961) (quoting People v. Defore, 150 N.E. 585, 587 (N.Y. 1926)). This case represents a classic example of sloppy police activity in what should have been a simple warranted search and seizure, now made into a difficult legal issue not because of ignorance, but because of the stubbornness of the veteran officer-in-charge to change his ways and comply with current protocols. Law enforcement officers have ready access to the Oregon State Police Law Enforcement Data System (“LEDS”), a computerized database that is the primary source of criminal history information in Oregon, either through a radio dispatch center or a dedicated computer terminal at their agency’s office. (Decl. of Investigator James Strupp in Support of Mot. to Suppress (# 18) hereafter “Strupp Decl.”) at 3, PP8-9.)
Detective Davis testified during the Franks hearing that he did not learn how to perform LEDS checks, and did not run one on Sadie Lamberson because it was his standard practice not to perform criminal history and background checks when statements from a named (as opposed to a confidential) informant were used in a supporting affidavit. The simple act of disclosing to the magistrate who issued the warrant the history of drug use and accompanying criminal background of Ms. Lamberson would have provided a constitutionally solid foundation for the search warrant executed at 1245 Tutuilla Road, because there would then be no question that the magistrate had all of the information needed to assess Ms. Lamberson’s credibility and reliability as an informant.
. . .
I am satisfied that Detective Davis did not omit the details of Ms. Lamberson’s criminal background with the intent to deceive the magistrate who was reviewing the warrant application. However, Detective Davis admitted that he did not include the above information because he never had before and did not want to change his ways to conform to current practices. Such disregard of protocol is, at the very least, reckless; the good faith exception to the Fourth Amendment provided in United States v. Leon, 468 U.S. 897 (1984), does not salvage what otherwise could have been an oversight or inadvertent mistake. Therefore, the issue remains: “Would the omitted information about the informant’s background have affected the decision of the magistrate who issued the warrant on August 4, 2005?” I conclude that the answer is, “No.”
47 minute delay in arrival of the drug dog was permissible because there was reasonable suspicion. If this were just a traffic stop and they waited that long for a drug dog, it would have been unreasonable. United States v. Kelley, 2006 U.S. Dist. LEXIS 88350 (E.D. Ark. December 5, 2006, filed January 18, 2007).
