Tenth Goes With Principle that "Suppression of Evidence" Should Be a "Last Resort"
U.S. v. Sells, --- F.3d ----, 2006 WL 2678015 (10th Cir. September 19, 2006)
Issue: severability of terms in a search warrant. D alleged that the warrant to search his home for firearms was constitutionally over-broad and that police conducted a general search. (Someone had shot into D’s parents’ home. Parents suspected D because of recent threats and D’s possession of many guns. Police surveillance showed D arriving home one evening with, among other things, a flak jacket and an assault rifle).
In the opinion, the 10th picks out and elevates some frighteningly bad language from the Supreme Court’s last term: “The Supreme Court has recently reiterated, however, that “suppression of evidence” should be a “last resort, not [a] first impulse.” Hudson v. Michigan, 126 S.Ct. 2159, 2163 (2006).” Help Mister Wizard!
The court goes on to apply the “severance doctrine”, where valid portions of a warrant are severed from the invalid portions and only materials seized under the authority of the valid portions, or lawfully seized while executing the valid portions, are held admissible. It first divides the warrant into individual categories of items. It next determines if a part of the warrant describes with sufficient particularity items to be seized for which there is probable cause (if no part of the warrant passes this inquiry then the entire warrant is invalid). The parties agreed on validity and invalidity of 4 portions of the warrant. The 10th, applying the next part of the test, determined that the valid portions were sufficiently distinguishable from the invalid portions. It next determined that the invalid portions did not so predominate in the warrant to contaminate the entire warrant and turn the search into an unconstitutional general rummaging.
It was in addressing the 5th catchall portion of the warrant that the 10th pulled a Hudson. The final category of items under the warrant allowed a search for “any other related fruits, instrumentalities and evidence of the crime.” The 10th identified this as having some characteristics of both a valid warrant provision and one that is too broad. It read the word “related” as referring more to the valid portions of the warrant (specifying a search for a .233 firearm and .233 ammo) than to the invalid portions. Hence, the valid portions of the warrant, severed, allowed the police to search for and seize all the guns, the pipe bomb and ammo they found (some were in plain view).
10th also upheld district court determination that police did not flagrantly disregard the warrant and use it for a general, rummaging search.
Issue: severability of terms in a search warrant. D alleged that the warrant to search his home for firearms was constitutionally over-broad and that police conducted a general search. (Someone had shot into D’s parents’ home. Parents suspected D because of recent threats and D’s possession of many guns. Police surveillance showed D arriving home one evening with, among other things, a flak jacket and an assault rifle).
In the opinion, the 10th picks out and elevates some frighteningly bad language from the Supreme Court’s last term: “The Supreme Court has recently reiterated, however, that “suppression of evidence” should be a “last resort, not [a] first impulse.” Hudson v. Michigan, 126 S.Ct. 2159, 2163 (2006).” Help Mister Wizard!
The court goes on to apply the “severance doctrine”, where valid portions of a warrant are severed from the invalid portions and only materials seized under the authority of the valid portions, or lawfully seized while executing the valid portions, are held admissible. It first divides the warrant into individual categories of items. It next determines if a part of the warrant describes with sufficient particularity items to be seized for which there is probable cause (if no part of the warrant passes this inquiry then the entire warrant is invalid). The parties agreed on validity and invalidity of 4 portions of the warrant. The 10th, applying the next part of the test, determined that the valid portions were sufficiently distinguishable from the invalid portions. It next determined that the invalid portions did not so predominate in the warrant to contaminate the entire warrant and turn the search into an unconstitutional general rummaging.
It was in addressing the 5th catchall portion of the warrant that the 10th pulled a Hudson. The final category of items under the warrant allowed a search for “any other related fruits, instrumentalities and evidence of the crime.” The 10th identified this as having some characteristics of both a valid warrant provision and one that is too broad. It read the word “related” as referring more to the valid portions of the warrant (specifying a search for a .233 firearm and .233 ammo) than to the invalid portions. Hence, the valid portions of the warrant, severed, allowed the police to search for and seize all the guns, the pipe bomb and ammo they found (some were in plain view).
10th also upheld district court determination that police did not flagrantly disregard the warrant and use it for a general, rummaging search.
posted by Anonymous at 9:31 AM
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