{"id":1987,"date":"2008-04-14T06:43:15","date_gmt":"2008-04-14T06:43:04","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-04-14T06:12:04","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1987","title":{"rendered":"Particularity failure is same as no warrant at all, and Hudson<\/em> will not save it"},"content":{"rendered":"

In a conceded violation of the particularity clause under Groh v. Ramirez<\/em><\/a>, the government argues that the exclusionary rule should not apply under Hudson<\/em><\/a>. The court disagrees because a failure of particularity is the same as no search warrant at all, and this is a classic situation for application of the exclusionary rule. Finally, the good faith exception does not apply. United States v. Ryan<\/a>, 2008 U.S. Dist. LEXIS 29690 (D. Vt. March 31, 2008) [this is a PACER link; document is free]:<\/p>\n

A. Interests Protected by the Constitutional Guarantee<\/strong><\/p>\n

First, the Government relies on Hudson v. Michigan<\/em> for the proposition that exclusion is inappropriate if “the interest protected by the constitutional guarantee … would not be served by suppression of the evidence obtained.” Hudson v. Michigan<\/em>, 547 U.S. 586, 593, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). In addition, the Government cites to a Seventh Circuit decision, United States v. Stefonek<\/em>, 179 F.3d 1030 (7th Cir. 1999), in which the circuit panel confronted facts very similar to those that are before this Court. 2 In Stefonek, the panel held that suppression was not required because “the violation did no harm to any of the interests in privacy or property that the Fourth Amendment protects.” 179 F.3d at 1034. The Court, however, finds that the Government has overstated the holding in Hudson<\/em> and that the cited legal proposition does not apply to the facts presented here. Nor is the Court persuaded by the reasoning in Stefonek<\/em> in light of the Supreme Court’s subsequent decisions in Hudson<\/em> and Groh<\/em>. <\/p>\n

The first deficiency in the Government’s argument results from its failure to place the cited proposition from Hudson<\/em> in context. Hudson<\/em> did not involve a warrantless search; to the contrary, the law enforcement officers obtained and acted pursuant to a valid warrant. The sole constitutional violation in Hudson<\/em> arose when the officers executing the warrant failed to comply with the knock-and-announce requirements. As such, the Court’s decision did not provide a methodology for determining whether to exclude evidence seized pursuant to a warrantless search of a defendant’s home. Rather, the Court addressed the issue of whether it was appropriate to expand the exclusionary rule to apply to knock-and-announce violations. Moreover, the Court specifically recognized the import of this distinction, noting that “cases excluding the fruits of unlawful warrantless searches say nothing about the appropriateness of exclusion to vindicate the interests protected by the knock-and-announce requirement.” Id.<\/em> at 593 (citations omitted).<\/p>\n

. . .<\/p>\n

In Hudson<\/em>, the Court offered a concrete example of a situation in which the interests protected by the constitutional guarantee are too attenuated from the evidence which the defendant seeks to suppress. The Court cited to New York v. Harris<\/em>, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), in which the police effected an illegal, warrantless arrest within Harris’ home. The Court declined to extend the exclusionary remedy to statements made by Harris outside his home, holding that suppression of these statements “would not serve the purpose of the rule that made Harris’ in-house arrest illegal.” Hudson<\/em>, 547 U.S. at 593 (quoting Harris, 495 U.S. at 20). The instant case is readily distinguishable. The evidence challenged by Ryan was seized pursuant to the illegal, warrantless search itself; there was neither spatial nor temporal attenuation. Furthermore, the seizure violated precisely those privacy and property interests which the Fourth Amendment protects.<\/p>\n

The second major deficiency in the Government’s reasoning results from its exceptionally narrow definition of which interests are protected by the Fourth Amendment. The Government focuses solely on the particularity requirement in the Fourth Amendment and argues that its purpose is “to prevent general warrants.” (Opp’n by Gov’t to Motion to Suppress 4-5.) Although this argument has been articulated by the circuit panel in United States v. Stefonek<\/em>, 179 F.3d 1030, 1033 (7th Cir. 1999), the Government’s reasoning runs contrary to the Supreme Court’s decisions in Hudson<\/em> and Groh<\/em>.<\/p>\n

In its discussion of which interests are constitutionally protected in the context of a warrantless search, the Court in Hudson<\/em> espoused a much broader definition. Justice Scalia wrote for the majority:<\/p>\n

Until a valid warrant has issued, citizens are entitled to shield “their persons, houses, papers, and effects” from the government’s scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement. The interests protected by the knock-and-announce requirement are quite different–and do not include the shielding of potential evidence from the government’s eyes.<\/p><\/blockquote>\n

Hudson<\/em>, 547 U.S. at 593 (citation omitted). The Government in this case invaded Ryan’s home, his papers and his effects when it executed the illegal, warrantless search. The Supreme Court, in the very case on which the Government most heavily relies, has stated that exclusion would vindicate Ryan’s constitutionally protected interests.<\/p>\n

Even assuming that the Government’s focus on the particularity requirement is appropriate, the Government’s definition of the interest protected by this requirement is far too constrained. The Supreme Court has “long held … that the purpose of the particularity requirement is not limited to the prevention of general searches.” Groh<\/em>, 540 U.S. at 561. In fact, the Court in Groh<\/em> tallied a number of other goals served by the particularity requirement: The requirement prevents “the seizure of one thing under a warrant describing another,” id.<\/em>; prevents the issuance of a warrant “on vague or dubious information,” id.<\/em>; and provides a guarantee to “the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Id<\/em>. (quoting United States v. Chadwick<\/em>, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977)).<\/p>\n

. . .<\/p>\n

B. Deterrence Versus the Social Costs of Exclusion<\/strong><\/p>\n

The Government’s second argument against suppression is that the deterrence benefits of exclusion in this case do not outweigh its substantial social costs. (Opp’n by Gov’t to Mot. to Suppress 6-7.) To support this position, the Government has selected bite-size morsels from a number of decisions in which the Supreme Court and Second Circuit have used this balancing analysis. Id. In addition, the Government has argued that deterrence will not be effective in this case because the error resulted from negligence rather than willful misconduct. Id. at 7-8.<\/p>\n

Once again, the Government has not adequately placed the cited legal proposition in context. It is beyond dispute that the Court has on numerous occasions relied on a balancing test, sometimes over the clamor of dissenters who have decried it as nothing more than “judicial stagecraft,” Leon<\/em>, 468 U.S. at 949 (Brennan, J., dissenting); however, as the Second Circuit has observed, in each case the Court was considering “extension of the rule beyond its core application.” Tirado<\/em>, 689 F.2d at 310; see, e.g., United States v. Calandra<\/em>, 414 U.S. 338, 349, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974) (considering costs and benefits of extending exclusionary rule to grand jury proceedings); United States v. Janis<\/em>, 428 U.S. 433, 453-54, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976) (same with regard to civil proceedings); Pennsylvania Bd. of Probation & Parole v. Scott<\/em>, 524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998) (same with regard to parole revocation proceedings); Hudson<\/em>, 547 U.S. at 591-93 (same with regard to knock-and-announce violation).<\/p>\n

The instant case, in contrast, falls clearly within what has been termed the “core application” of the exclusionary rule: Ryan seeks exclusion “of illegally seized items as affirmative evidence in the trial of the matter for which the search was conducted.” Tirado<\/em>, 689 F.2d at 310. In fact, the balancing analysis in these cases consistently relies on an implicit core application of the exclusionary rule; otherwise all discussion of “additional marginal deterrence” would be rendered meaningless. See id.; Janis<\/em>, 428 U.S. at 453-54; Calandra<\/em>, 414 U.S. at 351-52.<\/p>\n

The Government also challenges whether exclusion in this case will achieve any deterrence. Leon created a good-faith exception to the strictures of the exclusionary rule, holding that deterrence is most effective in cases of willful or negligent misconduct by law enforcement. Leon<\/em>, 468 U.S. at 918. The Government in this case advocates a further whittling, proposing a new exception to the exclusionary rule in cases where the constitutional violation resulted from negligence rather than intentional misconduct.<\/p><\/blockquote>\n

Comments:<\/em> First, one remarkable thing here is that the Magistrate Judge obviously did not care enough to read the warrant that he or she was authorizing. The second remarkable thing here is that the government persisted in pursuing avoiding the exclusionary rule to the point that it essentially had to argue that there was no exclusionary rule under Hudson<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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