v.
SCOTT WHITNEY, Defendant
Trial
Division
CR No. 26-91
July 17, 1991
__________
When both a search warrant and its supporting affidavit are overbroad as to items may be seized, the warrant is deficient even if construed in reference to the affidavit.
Descriptions in a warrant must be specific enough to enable the person conducting the search to reasonably identify the things authorized to be seized.
Warrants reciting generic categories and criminal statutes, without more, do not usually give enough guidance as to what items may be seized -although a warrant's reference to a particular statute may, in certain circumstances not present here, satisfy the Fourth Amendment.
When the only limitation contained in a warrant was that the items seized be somehow connected to listed activities and statutes, the warrant was far too broad.
Warrants lacking in particularity are particularly troubling when the items to be seized have presumptive First Amendment protection.
Before KRUSE, Chief Justice; TAUANU'U, Chief Associate Judge; and LOGOAI, Associate Judge.
Counsel: For Plaintiff, Thomas E. Dow, Assistant Attorney General
For Defendant, Robert A. Dennison III
Defendant has moved for an order returning items
seized pursuant to a search warrant and suppressing the use of such items
against him. He argues, inter alia, that the warrant
was detective because it does not describe the premises to be searched or the
items to be seized with the particularity required by the Fourth Amendment of
the United States Constitution; Art. I, § 5 of the Revised
Constitution of
Clearly the warrant alone cannot pass constitutional muster since it fails to even name the places to be searched. However, the government argues that a supporting affidavit was attached to the warrant, thus adding the requisite particularity. Traditionally, a warrant that is too general cannot be cured by the specificity of an underlying affidavit, United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976), but an affidavit may sometimes cure a defective warrant if the warrant plus affidavit limited the discretion of the officers executing the search and informed, the person whose property was seized what the officers were entitled to take. Rickert v. Sweeney. 813 F .2d 907, 909 (8th Cir . 1987).
Most circuits have held that a search warrant may
sometimes be construed along with its supporting affidavit to satisfy the
particularity requirement, U.S. v.
Maxwell, 920 F.2d 1028, 1031 (D.C.Cir. 1990), but
differ as to what circumstances are needed to construe the warrant with
reference to the affidavit; The Ninth Circuit allows an affidavit to supply the
particularity lacking in a warrant only if it accompanies the warrant and the
warrant uses suitable words of reference which incorporate the affidavit.
The warrant herein does not expressly incorporate the underlying affidavit; under the Ninth Circuit test it stands alone and does not have the particularity required by the Fourth Amendment. However, we need not decide here under what circumstances a warrant in American Samoa can be construed to be in reference to a supporting affidavit -both the warrant and affidavit in question are so overbroad and unparticularized as to may be seized that the warrant would be deficient even if construed in reference to the affidavit.
The warrant authorized the executing agents to seize:
[¶ 1] books, magazines, booklets, receipts, pictures, photographs, medicines, narcotics or narcotics paraphernalia [20ASR2d14] and automobiles;
[¶ 2] Said properties are possessed in violation of
the laws of
The supporting affidavit of the investigating officer used the identical language of ¶ 1, but instead of' ¶ 2 noted that these items "is/are property that constitutes evidence of a criminal offense and/or contraband, the fruits of a crime, or otherwise criminally possessed; and/or property designed or intended for use or which is or has been used as the means of committing a criminal offense." As grounds for his belief that these items were at the places named in the affidavit, the officer said that the complaining minor had told him that, following the alleged criminal acts, the minor had seen a medicine cabinet "full of medicines," video tapes and a box of "pornographic magazines" in defendant's bedroom; and that another juvenile had also said that defendant had shown her "pornographic movies" that he took from his bedroom.
Even if we assumed that the warrant and/or
affidavit showed probable cause that the cited statutes had been violated and
demonstrated a sufficient nexus between the items to be seized and the alleged
crimes, the wording of both documents falls far short of the particularity
required to meet constitutional standards and is unconstitutionally overbroad.
A description in a warrant must be specific enough to enable the person
conducting the search reasonably to identify the things authorized to be
seized.
Nor does the affidavit provide more guidance, since it does not specify the items to be seized. In determining whether a description is sufficiently precise, courts have focused on: (1) whether probable cause exists to seize all items of a particular type described in a warrant; (2) whether the warrant sets out objective standards by which executing officers can distinguish items subject to seizure from those which are not; and (3) whether the government could have described the items more particularly in light of the information available to it at the time the warrant was issued. U.S. v. Stubbs, 873 F.2d at 211 (quoting Spilotro). If the government was (as it now argues) seeking certain items as evidence of the "means" of committing the crimes of sodomy and promotion of pornography, the alleged victims should have been able to provide the detail to enable the government to describe the items sought with the particularity required by the Fourth Amendment. As it stands, the only limitation in the warrant and affidavit on the broad categories of items to be seized is that they somehow be connected to the listed statutes and activities. Even if we construed the warrant and affidavit together to limit the seizure to "pornographic" materials used as a means of committing the alleged criminal acts, the warrant would be invalid. See 8B J. Moore, Moore's Federal Practice ¶ 41.05 at 41-55 (2d ed. 1985) (warrant authorizing search and seizure of 'all obscene materials' located in particular place would impart impermissible discretion to executing officer, lack particularity, lack probable cause as to obscene nature of material subject to seizure, and infringe First Amendment rights).
The lack of particularity is especially
troublesome in light of the fact that the items to be seized (books, magazines,
booklets, pictures, and photographs) are presumptively protected by the First
Amendment, since in such cases the particularity requirement of the Fourth
Amendment must be applied with "scrupulous exactitude." United States v. Hale, 784 F.2d 1465,
1468 (9th Cir. 1986) (quoting Maryland v.
Macon, 472
It is so ordered.
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