UNITED STATES of AMERICA, Plaintiff-Appellee, v. MARK EDWIN SELLS, Defendant-Appellant.
No. 04-5167
United States Court of Appeals, Tenth Circuit
September 19, 2006
463 F.3d 1148
PUBLISH. Elisabeth A. Shumaker, Clerk of Court.
Barry L. Derryberry, Research and Writing Specialist (Paul D. Brunton, Federal Public Defender, with him on the brief), Tulsa, Oklahoma, for Defendant-Appellant.
Timothy L. Faerber, Assistant United States Attorney (David E. O‘Meilia, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
Before KELLY, EBEL, and McWILLIAMS, Circuit Judges.
EBEL, Circuit Judge.
Under the severability doctrine, “[t]he infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant,
BACKGROUND
On March 11, 2004, officers responded to a call that shots were fired into the home of Orville and Nellie Sells. Upon arrival, deputies found two spent .223-caliber shell casings lying on top of the grass near the master bedroom window, observed two bullet holes in the master bedroom window, and discovered two bullet holes in the headboard of the bed in which Orville and Nellie Sells had been sleeping. Orville Sells reported that his son, Mark Sells, had threatened his life the previous day, and he warned officers that his son had numerous firearms at his, Mark Sells‘s, residence.
Officers established surveillance at Mark Sells‘s residence that night. They saw Sells arrive, back his car to the garage door, open the garage, carry a sleeping child inside, return to the car, and remove a dark jacket and put it on. The
Supported by an affidavit indicating the above facts, a search warrant for Sells‘s home was issued on March 12, 2004. The warrant described the items to be searched for and seized as follows:
[a]ny .223 caliber Firearm or rifle, .223 caliber ammunition, footwear, clothing, any other related fruits, instrumentalities and evidence of the crime.
The affidavit was neither incorporated into the warrant nor attached to it.
Five officers executed the search warrant at Sells‘s home, during which the officers found a loaded .223-caliber AR-15 rifle in the living room “right off the bat.” As officers continued the search in the master bedroom, Sells arrived, and the search was temporarily stopped while Detective Rhymes served Sells with a protective order that had been issued on behalf of Orville and Nellie Sells in Washington County.
The inventory of the seized items reflects that the officers also seized a 9 mm machine pistol, a 410 shotgun, and three .22-caliber rifles; Detective Rhymes testified that these additional firearms were seized based on the illegality of
During the search of the master bedroom, deputies discovered a hidden compartment within the closet. Within the hidden compartment, they found thousands of rounds of ammunition. Approximately seventy percent of the .223-caliber ammunition seized was from the hidden compartment. While searching in the hidden compartment, officers also spotted a pipe bomb. At that point, Detective Rhymes instructed the other officers to evacuate the residence and called the Tulsa Police Department Bomb Squad and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF“) to neutralize the bomb. Special Agent Josh Petree of ATF determined that the device found in the hidden compartment was in fact a pipe bomb and disarmed it.
On a nearby shelf, Agent Petree saw two-sided Velcro tape, which appeared identical to the strip of tape attached to the pipe bomb, and numerous 12-gauge shotgun rounds with the ends clipped off and the powder removed, which Agent Petree believed could have been used inside the pipe bomb as an ignition source. The officers found a bag a few feet from the pipe bomb that contained a package labeled “Ten Pack of Squibs,” which were identical in appearance to the squibs attached to the pipe bomb found in the hidden compartment. In the garage,
On April 13, 2004, Sells was charged with possession of an unregistered destructive device (a pipe bomb) in violation of
Sells conditionally pleaded guilty, waiving his right to trial but expressly reserving his right to appeal the district court‘s denial of his motion to suppress. The district court then sentenced Sells to thirty months’ imprisonment, a $2,500 fine, three years’ supervised release, and a special monetary assessment of $100. Sells now appeals the district court‘s suppression order.
As he did before the district court, Sells contends that several deficiencies in the warrant in this case rendered the search of his residence unconstitutional. Specifically, he contends that the information included in the affidavit in support of the search warrant failed to establish probable cause to support a search for footwear or clothing and that the overbreath of the search warrant rendered it a constitutionally impermissible general warrant. The United States argues that, despite any constitutional infirmities, the valid portions of the search warrant are severable from the invalid portions and that the warrantless items seized from Sells‘s residence are admissible under the plain view doctrine. Exercising jurisdiction pursuant to
I. Standard of Review
When reviewing a district court‘s denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in the light most favorable to the government. United States v. Gay, 240 F.3d 1222, 1225 (10th Cir. 2001). Although we accept the district court‘s factual findings unless they are clearly erroneous, id., we review de novo whether the good faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), applies, United States v. Riccardi, 405 F.3d 852, 860 (10th Cir. 2005); whether a search warrant may be
II. The Fourth Amendment and the Severance Doctrine
The Fourth Amendment commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
First, the magistrate‘s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the “general warrant” abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person‘s belongings. The warrant accomplishes this second objective by requiring a “particular description” of the things to be seized.
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (citations omitted); see also 2 W. La Fave, Search and Seizure, § 4.6(a) (4th ed. 2004).
Probable cause requires a magistrate judge to find that, “given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular
enables the searcher to reasonably ascertain and identify the things authorized to be seized. Even a warrant that describes the items to be seized in broad or generic terms may be valid when the description is as specific as the circumstances and the nature of the activity under investigation permit. However, the fourth amendment requires that the government describe the items to be seized with as much specificity as the government‘s knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.
United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988) (quotations, citations, footnote omitted).
The ordinary remedy for a search conducted or items seized in violation of the Fourth Amendment‘s warrant requirements is suppression. See United States v. Olivares-Rangel, 458 F.3d 1104, 1108 (10th Cir. 2006) (“The ordinary remedy in a criminal case for violation of the Fourth Amendment is suppression of any evidence obtained during the illegal police conduct.“). The Supreme Court has recently reiterated, however, that “[s]uppression of evidence” should be a “last resort, not [a] first impulse.” Hudson v. Michigan, 126 S. Ct. 2159, 2163 (2006). This is because
In accordance with the purposes underlying the warrant requirement2 and the exclusionary rule,3 every federal court to consider the issue has adopted the
III. Application of the Severance Doctrine
A. Divide warrant
Because Naugle requires us to evaluate the “valid portions of the warrant,” id. (emphasis added), our first step in determining whether the severability doctrine is applicable is to divide the warrant into individual phrases, clauses,
Here, Sells argues that the commas used in the warrant provide a dividing point each time one is used and thus provide a commonsense means of severing the parts of the warrant. We reject that approach in this case as “hypertechnical.” We believe the most logical interpretation of the warrant indicates that it authorized officers to search for the following five categories of evidence: (1) any .223 caliber Firearm or rifle, (2) .223 caliber ammunition, (3) footwear,
B. Examine each part to determine whether it complies with the Fourth Amendment and whether any valid portion is sufficiently particularized
After dividing the warrant into commonsense parts, we may then determine whether the requirements for severability set out in Naugle are met. Under Naugle, the doctrine applies only if, first, a part of the warrant describes with sufficient particularity items to be seized for which there is probable cause. See 997 F.2d at 822 (“[T]he valid portions of the warrant must be sufficiently particularized . . . .“). “Otherwise, there is nothing for the severability doctrine to save.” State v. Maddox, 67 P.3d 1135, 1141 (Wash. Ct. App. 2003), aff‘d, 98 P.3d 1199 (Wash. 2004); see also United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents ($92,422.57), 307 F.3d 137, 159 (3d Cir. 2002); George, 975 F.2d at 79-80; Cardwell, 680 F.2d at 78; Christine, 687 F.2d at 758; Leary, 846 F.2d at 606 n.25 (declining to employ the severance doctrine, recognized in dicta, where “no portion of the . . . warrant . . . adequately define[d] the items to be seized“).
Here, Sells does not challenge the first or second categories—that is, the categories authorizing officers to search for (1) any .223-caliber Firearm or rifle or (2) .223-caliber ammunition. We agree that the affidavit in this case provides a “substantial basis for concluding” that probable cause existed, Gates, 462 U.S. at 238-39 (quotation, alteration omitted), to search for these categories of items. Furthermore, we agree that these two categories meet the Fourth Amendment‘s particularity requirement. We therefore turn our focus to the other three categories of items.
As the Government concedes, the affidavit does not provide any reason to authorize a search for and seizure of footwear or clothing—the third and fourth categories of items. Additionally, the warrant provides no description of or limitation on the footwear or clothing to be seized, and thus allows officers to search for and seize any sort of footwear and clothing. Although footwear is a somewhat narrowing term, we accept for the purpose of this case the government‘s concession that that term, by itself, is too broad. Accordingly, we conclude that these categories do not satisfy the Fourth Amendment‘s warrant
The final category of items under the warrant—“any other related fruits, instrumentalities and evidence of the crime“—has some characteristics of both a valid warrant provision and one that is too broad. Compare George, 975 F.2d at 74, 76 (concluding that a warrant authorizing officers to search for and seize “any other evidence relating to the commission of a crime” was overbroad) with Andresen, 427 U.S. at 479, 480-82 (holding that the phrase “together with other fruits, instrumentalities and evidence of crime at this (time) unknown” appended “at the end of a sentence containing a lengthy list of specified and particular items to be seized, all pertaining to Lot 13T . . . , did not authorize the executing officers to conduct a search for evidence of other crimes but only to search for and seize evidence relevant to the crime of false pretenses and Lot 13T“) (quotations omitted); United States v. Robertson, 21 F.3d 1030, 1032, 1033 (10th Cir. 1994) (concluding that a warrant “authorizing the agents to search for and seize the four items that the agent specifically mentioned ‘and other instrumentalities and fruits of the crime of armed carjacking‘” was sufficiently particular). This catch-all warrant provision refers only to “the crime,” without
Thus, applying only a simple numerosity evaluation, the warrant is approximately equally divided between valid and invalid provisions. However, as we explain later, the Naugle test is not a mere counting of provisions. It requires a qualitative analysis of whether the valid provisions or the invalid ones constitute the greater weight of the warrant.
C. Determine whether valid parts are distinguishable from invalid parts
The mere fact that one or more parts of a search warrant are valid, however, does not mean that the severance doctrine is automatically applicable. Instead, under Naugle‘s second requirement, some part of the warrant must be both constitutionally valid and “distinguishable from the invalid portions” in order for severability to apply. 997 F.2d at 822; see also Christine, 687 F.2d at 754 (“Redaction is inappropriate when the valid portions of the warrant may not be meaningfully severable from the warrant as a whole.“). Where, as here, each of the categories of items to be seized describes distinct subject matter in language
D. Determine whether valid portions make up “the greater part of the warrant”
Total suppression may still be required even where a part of the warrant is valid (and distinguishable) if the invalid portions so predominate the warrant that the warrant in essence authorizes “a general, exploratory rummaging in a person‘s belongings.” Coolidge, 403 U.S. at 467. Under such circumstances, application of the severance doctrine would defeat rather than effectuate the protections of
As a result, although articulated in varying forms, every court to adopt the severance doctrine has further limited its application to prohibit severance from saving a warrant that has been rendered a general warrant by nature of its invalid portions despite containing some valid portion. We have specifically held that severance is only applicable where the “valid portions . . . make up the greater part of the warrant,” Naugle, 997 F.2d at 822. In a later case, we characterized Naugle‘s holding more generously to prohibit severability only when the valid portion of the warrant is not substantial. Soussi, 29 F.3d at 568 n.3 (“[I]n . . . Naugle, we limited somewhat the severability concept to allow it only when at least a substantial part of the warrant is valid.“) (citation omitted). Other circuits seem, for the most part, to follow the Soussi articulation of the severability test. United States v. Kow, 58 F.3d 423, 428 (9th Cir. 1995) (severance inapplicable where the valid part is a “relatively insignificant part of an otherwise valid search“); United States v. Diaz, 841 F.2d 1, 4 (1st Cir. 1988) (“[Severance] is an especially appropriate measure . . . where the bulk of the warrant and records seized are fully supported by probable cause.“); Spilotro, 800 F.2d at 967 (severance inapplicable where the valid part is a “relatively insignificant part of
The “greater part of the warrant” analysis focuses on the warrant itself rather than upon an analysis of the items actually seized during the search. See Brown, 984 F.2d at 1078 (basing its severability holding purely on the language of the warrants at issue); see also 2 LaFave, supra, § 3.7(d) (“If severability is
Certainly, the number of valid versus invalid provisions is one element in the analysis of which portion makes up the “greater part of the warrant.” Naugle 997 F.2d at 822; see also Kow, 58 F.3d at 428 (concluding that severance was not available because only two of fourteen categories of seizable documents were even arguably not overbroad and thus “the valid portion of the warrant [was] a relatively insignificant part of an otherwise invalid search“) (quotation omitted); United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir. 1984) (holding that severance was “practicable” when “only one of thirteen descriptions” was insufficiently particularized).
However, merely counting parts, without any evaluation of the practical effect of those parts, is an improperly “hypertechnical” interpretation of the
We first address the scope and weight of the catchall provision authorizing officers to search for and seize “all related fruits, instrumentalities, and evidence of the crime.” Reviewing the warrant as a whole in a commonsense, practical manner indicates that the word “related” in that catchall provision corresponds primarily to the .223 firearms and ammunition rather than to the more innocuous clothing and footwear. A common sense reading of this warrant reveals, and would reveal to a reasonable officer, that the firearms and ammunition provisions were the main subject of the warrant.
Turning then to the third and fourth categories of items to be seized under the warrant in this case, we note that they authorize officers to search for and seize only one distinct type of item—either footwear or clothing. As a result, the executing officers’ discretion is to some extent limited, and there is a decreased risk that the officers would mistakenly seize an item not within this description. Finally, the search for footwear and clothing does not implicate additional constitutional concerns under, for example, the First Amendment. See Voss, 774 F.2d at 405 (“The warrants’ overbreadth is made even more egregious by the fact that the search at issue implicated free speech and associational rights.“).
E. Sever valid portions from invalid portions and partially suppress evidence accordingly
Having concluded that the valid portions of the warrant in this case were “sufficiently particularized, distinguishable from the invalid portions, and ma[d]e up the greater part of the warrant,” Naugle, 997 F.2d at 822, we agree with the district court that severance was appropriate in this case.7 Under the severance doctrine, evidence seized pursuant to the invalid portions of the warrant must be
Under the plain view doctrine, the district court also upheld the seizure of the “shotgun shells, pipe bomb, velcro, squibs, drill press, welding equipment, and flux.” Unnamed items and “items named in an impermissibly broad portion of a warrant may nevertheless be seized pursuant to the plain view doctrine so long as the government‘s plain view seizure scrupulously adheres to the three-prong Horton test.” Soussi, 29 F.3d at 572; see also George, 975 F.2d at 80; Fitzgerald, 724 F.2d at 637. The Horton test requires that:
(1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object‘s incriminating character was immediately apparent—i.e. the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself.
Soussi, 29 F.3d at 570 (citing Horton, 496 U.S. at 136-37).
On appeal, Sells‘s only argument that the plain view doctrine does not apply in this case to permit seizure of the warrantless items is that “the invalidity of [the] warrant le[ft] no set of circumstances justifying the officer‘s presence on the premises” because the warrant constituted a general warrant that could not be
IV. Application of United States v. Medlin
Prior to our adoption of the severance doctrine, we held that, “[w]hen law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant.” Medlin, 842 F.2d at 1199; see also United States v. Foster, 100 F.3d 846, 849 (10th Cir. 1996) (“[E]ven evidence which is properly seized pursuant to a warrant must be suppressed if the officers executing the warrant exhibited ‘flagrant disregard’ for its terms.“) (quotation omitted). As a result, even where the Naugle requirements for severance are satisfied, total suppression rather than partial suppression pursuant to a redacted warrant is necessary when officers “flagrant[ly] disregard” the terms or “grossly exceed the
Here, the district court found no “indiscriminate rummaging or hours of ransacking.” Nothing in the record suggests that this finding is clearly erroneous, Gay, 240 F.3d at 1225; nor does the record suggest that any of the officers’ actions constituted the sort of “flagrant disregard” for the Fourth Amendment or the permissible scope, duration, and intensity of the search under the redacted warrant that would require the “extreme remedy” of total suppression. United States v. Le, 173 F.3d 1258, 1270 (10th Cir. 1999); see also Freeman, 685 F.2d at 953 (“Since the permissible scope, duration, and intensity of the search turns
CONCLUSION
For the foregoing reasons, we affirm the district court‘s partial suppression order.
Notes
997 F.2d at 821 n.1 (quotation omitted). However, we concluded that the warrant authorized officers to search for the following four categories of items:Letters, papers, documents, checks or envelopes inscribed or printed upon with the Utah County Constable, the Utah County Constable Star, or any such insignia which gives the appearance or represents a government agency, or anything else that in its nature could be used to imply an affiliation with such an agency, any surveillance equipment including electronic listening and recording devices, cameras, binoculars, radios, telephone hardware and records, business records, personnel files, payroll records, computer, both hard and software, contracts, tapes or video equipment, and any other articles used in the support or furtherance of.
- letters, papers, documents, checks or envelopes inscribed or printed upon with the Utah County Constable or Utah County Constable Star;
- letters, papers, documents, checks or envelopes inscribed or printed upon any such insignia which gives the appearance or represents a government agency, or anything else that in its nature could be used to imply an affiliation with such an agency;
- any surveillance equipment including electronic listening and recording devices, cameras, binoculars, radios, telephone hardware and records;
- business records, personnel files, payroll records, computer, both hard and software, contracts, tapes or video equipment.