United States v. John Sears

In this case, we must determine the proper remedy for a search pursuant to a warrant that, due to police error in preparing the document for distribution, contained eight words not reviewed by a neutral magistrate. The eight words were “or nearby” (twice) and “but not limited to.” It is undisputed that those words expanded the scope of the search and violated the particularity requirement of the Fourth Amendment. Defendant John Sears appeals the district court’s decision to remedy this Fourth Amendment violation by suppressing only that evidence seized pursuant to the unreviewed portions of the warrant. We affirm. Because the Fourth Amendment violation was not flagrant, and the invalid portions of the warrants were relatively insignificant, we hold that blanket suppression was not required.

*1126 ,1. Background

On January 4, 2001, San Francisco Police Department (“SFPD”) Officer Jon Kasper sought and received a warrant to search Sears’s person, vehicles, residences, and related storage spaces for evidence of cocaine trafficking. The warrant referred to an attachment, Exhibit A, specifying the items the officers were authorized to seize.

In the version of the warrant approved…

dissenting.

The constitutional deficiency in this case is not, as the majority poses the issue, an overbroad search warrant. It is that the police tampered with the warrant after it was authorized by the reviewing judge. As a consequence, the warrant executed and served by the San Francisco Police Department was a legal nullity. Everything seized under this sham warrant must be suppressed.

1. What happened here is far more troubling than one would surmise from the majority’s prosaic recitation of the facts. Officer Kasper presented Judge Louie with a packet of documents that included a search warrant, a statement of probable cause and an Exhibit A listing the boundaries and objects of the proposed search. When the judge approved the search, he expressly incorporated Exhibit A into the section of the warrant listing the items to be seized. Exhibit A — the one reviewed by Judge Louie — thus was part of the warrant.

Had Officer Kasper simply passed out photocopies of the warrant to his search team, blocking out the probable cause section (to comply with the police department’s policy of not serving the probable cause statement at the time a warrant is executed), there would have…

411 F.3d 1124 UNITED STATES of America, Plaintiff-Appellee, v. John SEARS, Defendant-Appellant. No. 03-10573. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2004. Filed June 20, 2005. Amber S. Rosen, Office of the U.S. Attorney, San Jose, CA, for the plaintiff-appellee. Stuart D. Hanlon, San Francisco, CA, for the defendant-appellant. Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. CR-01-00070-MJJ. Before KOZINSKI, W. FLETCHER, and BYBEE, Circuit Judges. WILLIAM A. FLETCHER, Circuit Judge. 1 In this case, we must determine the proper remedy for a search pursuant to a warrant that, due to police error in preparing the document for distribution, contained eight words not reviewed by a neutral magistrate. The eight words were "or nearby" (twice) and "but not limited to." It is undisputed that those words expanded the scope of the search and violated the particularity requirement of the Fourth Amendment. Defendant John Sears appeals the district court's decision to remedy this Fourth Amendment violation by suppressing only that evidence seized pursuant to the…