E.D.Ky. & NM: If part of the warrant is overbroad, suppress only that part of the seizure

The warrant was partially general, but the remedy would be to suppress the parts of the warrant that are overbroad and that seized under it, not the whole search. United States v. Couch, 2013 U.S. Dist. LEXIS 164827 (E.D. Ky. November 20, 2013):

As previously established, parts of the warrant were overly broad and not supported by probable cause. These portions, however, were properly excised by the Magistrate Judge. This finding of overbreath “does not require suppression of all of the items seized pursuant to the warrant.” Blakeney, 942 F.2d at 1027. When part of the warrant is overly broad, “the proper approach to this dilemma is to sever the infirm portion of the search warrant from the remainder which passes constitutional muster.” Blakeney, 942 F.2d at 1027 (citing Worthington v. United States, 726 F.2d 1089, 1092 (6th Cir. 1984). By not permitting evidence seized pursuant to these overly broad portions, the defendant is not prejudiced by the warrant’s defects. Id. This was the approach taken by the Magistrate Judge and is adopted here.

N.M. held the same thing in State v. Casares, 2013 N.M. App. LEXIS 122 (November 19, 2013):

{10} Even if Defendant is correct that “fingerprints” and “photography of the … evidence” lack the particularity required by the Fourth Amendment, he is not entitled to blanket suppression of all the evidence seized from his home pursuant to the warrant. In State v. Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, rev’d on other grounds 2013-NMSC-025, 303 P.3d 838, we noted that the particularity requirement of the Fourth Amendment has two dimensions: a warrant must particularly and clearly identify what may be seized; and the scope of what may be seized is limited by the probable cause supporting the warrant. Gurule, 2011-NMCA-063, ¶ 16. We considered what relief is appropriate when a search warrant fails to satisfy either particularity requirement and agreed that it is appropriate to “suppress an individual item for lack of an adequate description, to prevent unconstrained police discretion, or for lack of probable cause with respect to any individual item.” Id. (citation omitted).

{11} In Gurule, there was no issue as to whether the warrant described a digitalcamera and other evidence to be seized with sufficient particularity. Id. ¶ 17. However, we concluded that because the warrant failed to establish probable cause to support seizure of the digital camera, it was overly broad, and therefore the digital camera was properly suppressed. Id. ¶ 23. Significant to the case before us here, we did not require blanket suppression of the remaining items seized under the warrant because there was no challenge that those items were deficient in the particularity required by the Fourth Amendment. On certiorari, our Supreme Court reversed our determination that the warrant failed to establish probable cause to support seizure of the digital camera. Gurule, 2013-NMSC-025, ¶ 29. However, our determination that suppression of only the item for which particularity is lacking is required was undisturbed.

{12} Moreover, our conclusion inGuruleis consistent with other New Mexico precedent, which generally requires only suppression of improperly obtained evidence. For example, in State v. Jacobs, 2000-NMSC-026, ¶ 40, 129 N.M. 448, 10 P.3d 127, the defendant asserted that because the police exceeded the scope of the warrant by seizing evidence not specified in the warrant, blanket suppression of all the evidence seized was required. Our Supreme Court rejected this argument and agreed with the proposition that “‘only the improperly seized evidence, not all of the evidence, must be suppressed, unless there was a flagrant disregard for the terms of the warrant.'” Id. ¶ 41 (quoting United States v. Le, 173 F.3d 1258, 1269 (10th Cir. 1999)). In cases where there was a flagrant disregard for the terms of the warrant or when searches were predicated on subterfuge, blanket suppression of all the evidence might be warranted. Id. However, Defendant makes no such argument here. In State v. Patscheck, 2000-NMCA-062, ¶ 12, 129 N.M. 296, 6 P.3d 498, the defendant likewise argued that suppression of all evidence seized under a search warrant must be suppressed because the executing officers seized items not specified in the warrant. Like the Supreme Court, we also relied on Le and concluded that “blanket suppression of all the evidence seized … would not be appropriate” because there was no showing that the officers flagrantly disregarded the terms of the search warrant. Patscheck, 2000-NMCA-062, ¶ 14.