998 F.3d 1125
10th Cir.2021Background
- A dispute at a Colorado Springs crosswalk escalated when the driver (Perry Suggs) fired a shot at a pedestrian; no one was injured. Officer Adam Menter investigated, identified Suggs as the driver, and obtained an arrest warrant and a state search-warrant application.
- The search-warrant application included an affidavit (Attachment A) describing the shooting and investigation; the issued warrant expressly incorporated Attachment B (a list of items) but did not expressly incorporate the affidavit.
- SWAT conducted a protective sweep of Suggs’s residence; Officer Tomczyk shone a flashlight through an SUV window under the carport (curtilage) and saw two guns and related items. Officers then executed the residential warrant and seized ammunition and documents linking Suggs to the residence.
- Officer Menter used Tomczyk’s observation to obtain a second warrant to search the SUV, which produced firearms, ammunition, and registration; Suggs was indicted for being a felon in possession under 18 U.S.C. § 922(g)(1).
- Suggs moved to suppress evidence from the house and SUV, arguing the residential warrant lacked Fourth Amendment particularity and the SUV evidence was fruit of the initial illegality; the district court denied suppression, Suggs was convicted, and he appealed.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Suggs) | Held |
|---|---|---|---|
| Whether the residential warrant satisfied the Fourth Amendment particularity requirement | Warrant should be read practically; the catch-all phrase reasonably limits to evidence related to the vehicle shooting | Warrant’s catch-all (“any item identified as being involved in crime”) is overbroad and authorizes general searches | Warrant invalid: catch-all authorized evidence of any crime and did not limit search to the shooting, violating particularity |
| Whether the unincorporated affidavit cures the warrant’s lack of particularity | Affidavit (attached) supplies particularity; officers’ knowledge and precedent (Sadlowski/Ortega-Jimenez) suffice | Affidavit was not expressly incorporated; precedent bars curing a facially vague warrant with an unincorporated affidavit | Affidavit did not cure the defect: warrant failed to expressly incorporate affidavit, so particularity cannot be supplied by it |
| Whether the warrant is severable so valid portions can stand | Invalid portions can be severed; gun-related items and general-info sections are valid and should survive | The miscellaneous catch-all and vehicle sections are broad and contaminate the warrant; invalid parts predominate | Partially valid portions exist (guns, general info) but invalid portions (vehicle, miscellaneous) predominate; warrant is non-severable |
| Whether suppression is precluded by good-faith exception or independent-source/attenuation doctrines (and whether SUV evidence is admissible) | Officers acted in good faith; even if house evidence excluded, SUV guns alone are sufficient; vehicle-warrant and subsequent seizure lawful | Entry into curtilage was unlawful; SUV evidence is fruit of that illegality and not purged; govt hasn’t shown independent source or attenuation | Remanded: district court must resolve factual disputes and decide whether good-faith exception applies; on current record SUV evidence appears to be fruit and govt fails to show independent source or attenuation |
Key Cases Cited
- United States v. Leary, 846 F.2d 592 (10th Cir. 1988) (warrant must describe items with as much specificity as circumstances allow)
- Andresen v. Maryland, 427 U.S. 463 (1976) (catch-all phrase can be limited by context when warrant ties items to a specific crime)
- Groh v. Ramirez, 540 U.S. 551 (2004) (warrant must expressly incorporate supporting affidavit; mere reference insufficient)
- Cassady v. Goering, 567 F.3d 628 (10th Cir. 2009) (invalid, broad catch-all may contaminate entire warrant and preclude severability)
- United States v. Pulliam, 748 F.3d 967 (10th Cir. 2014) (warrant for “any and all firearms and ammunition” can be particularized when defendant is a felon)
- United States v. Sells, 463 F.3d 1148 (10th Cir. 2006) (severability framework for warrants)
- United States v. Sadlowski, 948 F.3d 1200 (10th Cir. 2020) (warrant that expressly incorporated affidavit was held to incorporate its terms)
- Segura v. United States, 468 U.S. 796 (1984) (exclusionary rule and independent-source doctrine distinctions)
- Utah v. Strieff, 136 S. Ct. 2056 (2016) (attenuation doctrine can break causal chain between illegality and evidence)
- United States v. Shrum, 908 F.3d 1219 (10th Cir. 2018) (government must show means sufficiently distinguishable to purge taint)
- United States v. Russian, 848 F.3d 1239 (10th Cir. 2017) (signature on affidavit does not substitute for express incorporation of affidavit into warrant)