FILED
United States Court of Appeals
Tenth Circuit
April 28, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellant,
v. No. 08-2154
LORETTA OTERO,
Defendant–Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-07-386-MCA)
Fred J. Federici, Assistant United States Attorney, Las Cruces, New Mexico
(Gregory J. Fouratt, United States Attorney, and Terri J. Abernathy, Assistant
United States Attorney, Las Cruces, New Mexico, with him on the briefs), for
Plaintiff-Appellant.
Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, New Mexico,
for Defendant-Appellee.
Before McCONNELL, HOLLOWAY and BALDOCK, Circuit Judges.
McCONNELL, Circuit Judge.
While neither rain nor sleet nor snow could keep the residents along Postal
Highway Contract Route 64 in Los Lunas, New Mexico from receiving their mail,
the temptations of mail fraud and credit card theft were a different story. Loretta
Otero, the assigned postal carrier for that route, was identified as the culprit and
charged with a number of crimes arising out of her alleged theft. At trial, she
moved to suppress two incriminating documents uncovered during a search of her
computer on the grounds that the warrant authorizing the search lacked sufficient
particularity. The district court agreed and suppressed the evidence. The
government filed this interlocutory appeal under 18 U.S.C. § 3731. While we
agree with the district court that the warrant was invalid for lack of particularity,
we hold that the good faith exception to the exclusionary rule should apply and,
accordingly, we reverse.
I. Background
In February 2001, a number of residents along Postal Highway Contract
Route 64 began to lodge complaints that their mail was not being delivered.
Specifically, they complained that they were missing credit cards, personal
identification numbers, and billing statements. These residents had also noticed a
number of unauthorized cash withdrawals from their accounts. Ms. Otero had
been the assigned postal carrier on Postal Highway Contract Route 64 for more
than thirteen years.
Understandably suspicious, Postal Inspector Stephanie Herman devised an
investigation. On March 13, 2002, she prepared two test letters that appeared to
be from credit card companies and were addressed to residents on Ms. Otero’s
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route. Inspector Herman then conducted surveillance of Ms. Otero as she made
her deliveries, confirming that the two test letters were never delivered. When
Ms. Otero completed her route, returned to the Los Lunas Carrier Annex, gathered
her personal belongings, and left the building, Inspector Herman stopped her in
the parking lot and inspected her bags. Inside the bags Inspector Herman found
not only the two test letters, but also six other pieces of First Class Mail, all
addressed to residents on Ms. Otero’s route and all from credit card companies.
Ms. Otero was immediately placed on suspension and another carrier took over
her route. Although Ms. Otero had been relieved of her delivery duties, residents
reported that a week after her suspension she in fact continued making deliveries,
though only of a very particular type of letter: credit card-related mail with
outdated postmarks.
On March 27, 2002, Inspector Herman prepared a search warrant for Ms.
Otero’s residence. Before bringing it to the magistrate judge, she took the
warrant to an Assistant United States Attorney so that he could review it and
confirm “that all of the information was there, . . . [that] there was probable cause
and that it was legally correct.” App. 127. Only after obtaining the AUSA’s
approval did she submit the warrant to the magistrate judge. The key portion of
the warrant outlining the scope of the search was Attachment B, which read in
full:
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ITEMS TO BE SEIZED:
1. Any and all mail matter addressed to residents of Highway
Contract Route 064 in Los Lunas, New Mexico.
2. Any and all credit cards, credit card receipts and/or other records
bearing names, addresses and/or credit card numbers of known
victims and other residents from Highway Contract Route 064 in Los
Lunas, New Mexico.
3. Any and all credit cards, credit card invoices, receipts, statements,
affidavits of forgery, pre-approved offers, applications,
correspondence, automatic teller machine (ATM) receipts and/or other
records related to credit card or other accounts at financial institutions
and/or businesses for individuals other than residents of 123 La
Ladera Rd., Los Lunas, NM 87031 [Ms. Otero’s address].
4. Any and all mail matter or correspondence addressed to
individuals other than residents of 123 La Ladera Rd., Los Lunas, NM
87031.
5. Any and all materials including but not limited to letters,
correspondence, journals, records, notes, data and computer logs
bearing victim information and/or other information related to or
pertaining to the theft of mail, the fraudulent credit cards, bank fraud
and conspiracy including but not limited to credit card offers,
receipts, credit card statements, financial statements, and financial
transaction records.
COMPUTER ITEMS TO BE SEIZED
6. Any and all information and/or data stored in the form of magnetic
or electronic coding on computer media or on media capable of being
read by a computer or with the aid of computer-related equipment.
This media included floppy diskettes, fixed hard disks, removable
hard disk cartridges, tapes, laser disks, video cassettes and other
media which is capable of storing magnetic coding, as well as punch
cards, and/or paper tapes and all printouts of stored data.
7. Any and all electronic devices which are capable of analyzing,
creating, displaying, converting, or transmitting electronic or
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magnetic computer impulses or data. These devices include
computers, computer components, computer peripherals, word
processing equipment, modems, monitors, cables, printers, plotters,
encryption circuit boards, optical scanners, external hard drives,
external tape backup drives and other computer-related electronic
devices.
8. Any and all instructions or programs stored in the form of
magnetic or electronic media which are capable of being interpreted
by a computer or related components. The items to be seized include
operating systems, application software, utility programs, compilers,
interpreters and other programs or software used to communicate with
computer hardware or peripherals either directly or indirectly via
telephone lines, radio or other means of transmission.
9. Any and all written or printed material which provides instructions
or examples concerning the operation of the computer systems,
computer software and/or any related device, and sign-on passwords,
encryption codes or other information needed to access the computer
system and/or software programs.
App. 63–64. Inspector Herman attached an affidavit in which she stated that, in
her experience, “people engaged in this type of criminal activity often keep
records on the computers, including the hard drive and disks,” App. 69, and in
which she explained the process for off-site recovery of such records and said that
the search would “make every effort to review and copy only those programs,
directories, files, and materials that are instrumentalities and/or evidence of the
offenses described herein.” App. 70. That affidavit, however, was not explicitly
incorporated into the warrant.
The magistrate judge signed the warrant and Inspector Herman executed it
on March 28, 2002. She seized a computer hard drive, eighty-eight floppy disks,
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and two compact disks, all of which she sent to Robert Werbick, a forensic
computer analyst with the Postal Inspection Service. Inspector Herman also sent
a copy of the warrant, the application and affidavit in support of the warrant, and
a cover letter explaining that the “search warrant was for items relating to the
theft of credit cards and related correspondence from the mail on Highway
Contract Route (HCR) 064.” App. 72. The letter instructed Inspector Werbick to
ascertain “[w]hether information described in Attachment B of the search warrant
exists within the files on the hard drive, the floppy disks or the CDs.” Id. She
also included a list of known victims and a list of the names and addresses of
persons along the delivery route.
Inspector Werbick conducted a keyword search of the hard drive and disks,
using the list of victim names and credit card information that Inspector Herman
had provided him. He did not, however, place a date restriction on his search that
would limit the search only to files created during the time of the suspected credit
card fraud. When the search generated a “hit,” Inspector Werbick would examine
the hit to determine whether or not it fell within the scope of the warrant. Most
of the hits turned out to be “false hits.” For example, a search based on a resident
with the last name “Arnold” would also pull up files associated with “Arnold
Schwarzenegger” or “Arnold Palmer.” Two of the hits, however, uncovered
highly pertinent information that someone had tried to delete from the hard drive.
One was a credit card log that listed fourteen names, some of whom were known
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victims, with accompanying headings such as “Pin,” “Account Number,” “Credit
Limit,” and “Address.” The second was a list of names and addresses of
individuals along Ms. Otero’s route. Both of these files were found in the
“unallocated space” of the hard drive, where deleted data is stored before it is
then overwritten with new data. According to Inspector Werbick, a date
restriction could not have been used in a search of unallocated space.
Ms. Otero was charged with a number of crimes, including theft or receipt
of stolen mail in violation of 18 U.S.C. § 1708, theft of mail by an officer or
employee of the postal service in violation of 18 U.S.C. § 1709, obstruction of
correspondence in violation of 18 U.S.C. § 1702, and devising a scheme or
artifice to defraud in violation of 18 U.S.C. §§ 1341 and 1346. At trial she moved
to suppress, as the fruits of an invalid warrant, the two files uncovered from her
hard drive. The court granted her motion, finding that the warrant was facially
defective because it “purports to authorize the search and seizure of ‘any and all’
computer items—without limitation.” Op. 12. The court rejected the
government’s argument that under a natural reading of the warrant the portion
authorizing the computer search was limited to information pertaining to the
alleged mail fraud and credit card theft. The court also rejected the government’s
assertion that the good faith exception applied. The government filed this
interlocutory appeal.
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II. Discussion
A. Particularity of the Warrant
The Fourth Amendment requires not only that warrants be supported by
probable cause, but that they “particularly describ[e] the place to be searched, and
the persons or things to be seized.” U.S. Const. amend. IV. The particularity
requirement “ensures that the search will be carefully tailored to its justifications,
and will not take on the character of the wide-ranging exploratory searches the
Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987).
See also Marron v. United States, 275 U.S. 192, 196 (1927) (“The requirement
that warrants shall particularly describe the things to be seized makes general
searches under them impossible and prevents the seizure of one thing under a
warrant describing another. As to what is to be taken, nothing is left to the
discretion of the officer executing the warrant.”). The modern development of the
personal computer and its ability to store and intermingle a huge array of one’s
personal papers in a single place increases law enforcement’s ability to conduct a
wide-ranging search into a person’s private affairs, and accordingly makes the
particularity requirement that much more important. See, e.g. United States v.
Riccardi, 405 F.3d 852, 863 (10th Cir. 2005) (warrant authorizing general search
of computer invalid as it permitted officers to search anything “from child
pornography to tax returns to private correspondence”); United States v. Carey,
172 F.3d 1268, 1272 (10th Cir. 1999) (computer search for files pertaining to
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distribution of controlled substances uncovered child pornography). Because of
this, our case law requires that “warrants for computer searches must
affirmatively limit the search to evidence of specific federal crimes or specific
types of material.” Riccardi, 405 F.3d at 862 (emphasis added).
Wisely, the government does not contest that a warrant authorizing a search
of “any and all information and/or data” stored on a computer would be anything
but the sort of wide-ranging search that fails to satisfy the particularity
requirement. Its claim, rather, is that under a natural reading of the warrant the
computer search is limited to uncovering only evidence of the mail and credit
card theft along Ms. Otero’s delivery route. In other words, paragraphs six,
seven, eight, and nine, which fall under the heading “COMPUTER ITEMS TO BE
SEIZED,” are limited by paragraphs two, three, and five, which fall under the
separate heading of “ITEMS TO BE SEIZED” and restrict the search to
“information related to or pertaining to the theft of mail, the fraudulent credit
cards, bank fraud and conspiracy.” App. 63.
It is true that “practical accuracy rather than technical precision controls
the determination of whether a search warrant adequately describes the place to
be searched.” United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998)
(quoting United States v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997)). A
warrant need not necessarily survive a hyper-technical sentence diagraming and
comply with the best practices of Strunk & White to satisfy the particularity
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requirement. Nor is it beyond comprehension that the inspectors in this case
would subjectively read the provisions pertaining to the computer search as being
subject to the same limitations as the rest of the warrant, as the district court
found they did. We agree with the district court, however, that the warrant
describes the items to be seized with neither technical precision nor practical
accuracy, and it therefore lacks sufficient particularity.
Attachment B is quite neatly divided into two subsections: “ITEMS TO BE
SEIZED” and “COMPUTER ITEMS TO BE SEIZED.” Each paragraph under the
first section takes pains to limit the search to evidence of specific crimes or
evidence pertaining to specific persons along Ms. Otero’s delivery route. Each
paragraph under the second section, in contrast, has no limiting instruction
whatsoever. Read alone, they each authorize a search and seizure of “[a]ny and
all” information, data, devices, programs, and other materials. There is no
explicit or even implicit incorporation of the limitations of the first five
paragraphs. The computer-related paragraphs do not even refer to the rest of the
warrant. In fact, the presence of limitations in each of the first five paragraphs
but absence in the second four suggests that the computer searches are not subject
to those limitations. Even when read in the context of the overall warrant,
therefore, the paragraphs authorizing the computer search were subject to no
affirmative limitations.
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The government contends that the warrant in this case is comparable to the
warrant in United States v. Brooks, which we upheld. 427 F.3d 1246 (10th Cir.
2005). That warrant authorized officers to search for “evidence of child
pornography,” including “photographs, pictures, computer generated pictures or
images, depicting partially nude or nude images of prepubescent males and or
females engaged in sex acts,” as well as “correspondence, including printed or
handwritten letters, electronic text files, emails and instant messages.” Id. at
1252. A technical reading of that warrant might suggest that the search of
correspondence was wide-ranging and not limited to correspondence that related
to child pornography. In context, however, we found that while “the language of
the warrant may, on first glance, authorize a broad, unchanneled search through
[the] document files, as a whole, its language more naturally instructs officers to
search those files only for evidence related to child pornography.” Id. (emphasis
omitted). The warrant authorizing the search of Ms. Otero’s computer, however,
has significant structural differences from the warrant in Brooks. In Brooks, the
portion authorizing the text search was not separated by paragraphs and headings
from the portion authorizing the image search; the two portions were contained in
a single paragraph, with no separation, and appeared under the same heading,
namely, “evidence of child pornography.” The structure of the warrant in Brooks
thus suggested that the image and text searches were subject to the same
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limitations, whereas the structure of the warrant in this case, with its clearer
divisions and stark contrasts between the two sections, suggests the opposite.
Differences such as subject headings and paragraph formation might seem
insignificant, but if we are to follow our command of reading each part of the
warrant in context, these structural indicators are useful tools. Affording the
government a practical rather than a technical reading does not require us to
indulge every possible interpretation. Though a reasonable person might be
forgiven for reading the entire warrant as subject to limitations, we believe that
the most practical reading authorizes a wide-ranging search of Ms. Otero’s
computer. The warrant as it pertained to the computer search was therefore
invalid.
B. The Good Faith Exception
Finding that a warrant is invalid does not automatically require application
of the exclusionary rule, and the motion to suppress should still be denied if the
government can avail itself of United States v. Leon’s good faith exception. 468
U.S. 897 (1984). As the Supreme Court recently reemphasized, the exclusionary
rule is a judicially-fashioned super-compensatory remedy whose focus is not on
restoring the victim to his rightful position but rather on general deterrence. See
Herring v. United States, --- U.S. ----, 129 S. Ct. 695, 699–700 (2009). Because
of this underlying purpose, “evidence should be suppressed ‘only if it can be said
that the law enforcement officer had knowledge, or may properly be charged with
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knowledge, that the search was unconstitutional under the Fourth Amendment.’”
Id. (quoting Illinois v. Krull, 480 U.S. 340, 348–49 (1987)). In this case, the
officers testified that they read the second half of the warrant as limited by the
first, and the district court explicitly credited their testimony. They therefore did
not have subjective “knowledge . . . that the search was unconstitutional.” Id.
Even if an officer lacks subjective knowledge that a warrant is legally
deficient, however, pre-Herring precedent holds that “a warrant may be so
facially deficient—i.e., in failing to particularize the place to be searched or the
things to be seized—that the executing officers cannot reasonably presume it to
be valid.” Leon, 468 U.S. at 923; see also Massachusetts v. Sheppard, 468 U.S.
981, 988 (1984) (“[T]he only question is whether there was an objectively
reasonable basis for the officers’ mistaken belief.”). The test is an objective one
that asks “whether a reasonably well trained officer would have known that the
search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922
n. 23. Not every deficient warrant, however, will be so deficient that an officer
would lack an objectively reasonable basis for relying upon it. “Even if the court
finds the warrant to be facially invalid . . . it ‘must also review the text of the
warrant and the circumstances of the search to ascertain whether the agents might
have reasonably presumed it to be valid.’” Riccardi, 405 F.3d at 863 (quoting
United States v. Leary, 846 F.2d 592, 607 (10th Cir. 1988)). We must “consider
all of the circumstances,” not only the text of the warrant, and we “assume that
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the executing officers have a reasonable knowledge of what the law prohibits.”
Id. (internal quotations omitted).
In this case, Inspector Herman attempted to craft a warrant that would
authorize a search for evidence of mail and credit card theft that had been hidden
on Ms. Otero’s computer. While the actual drafting did not accomplish her goals,
one can see how a reasonable officer might have thought that the limitations in
the first portion of Attachment B would be read to also apply to the second
portion. Inspector Herman did not stop at her own understanding of the warrant,
but sought the assistance of the Assistant United States Attorney, who ensured her
that it satisfied the legal requirements. The magistrate judge then added his own
approval. The affidavit that accompanied the warrant limited the computer search
to those federal crimes for which there was probable cause. In enlisting Inspector
Werbick’s help in searching the disks and hard drive, Inspector Herman sent him
not only the warrant but her affidavit, as well as instructions to search for items
related to the theft of mail and credit card-related materials from Ms. Otero’s mail
route. She also provided him with information pertaining to known victims that
would assist him in this search. Inspector Werbick understood his search as being
limited to evidence of mail and credit card theft along Ms. Otero’s route, and
accordingly conducted a keyword search geared toward information about the
known victims. Both Inspectors Herman and Werbick therefore had reason to
believe that the warrant was subject to limitations, and they conducted their
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search accordingly. This is not the kind of “flagrant or deliberate violation of
rights,” Herring, 129 S. Ct. at 702 (quoting Henry J. Friendly, The Bill of Rights
as a Code of Criminal Procedure, 53 Cal. L.R. 929, 953 (1965)), that the
exclusionary rule was meant to deter.
This case is quite close to that of United States v. Riccardi, where we
applied the good faith exception to a computer search that uncovered child
pornography, despite the fact that the warrant lacked particularity. 405 F.3d at
863–64. The warrant in that case was even more obviously deficient than in the
present case, with no argument that context prevented the warrant from
authorizing seizure of “all electronic and magnetic media stored [in the
computer].” Id. at 862. We nonetheless found a number of factors that indicated
the good faith of the officers: the attached affidavit limited the search to the crime
for which there was probable cause; the officers executing the warrant were
involved in the investigation throughout, and one of them wrote the affidavit to
support the application; the officer received assurances that the warrant was
legally sufficient; the search methodology was limited to uncovering evidence of
the crimes identified in the affidavit; and the officers seized only evidence
relevant to those crimes. These factors showed that the officers “did not conduct
a ‘fishing expedition’ beyond the scope of the authorized investigation,” making
it an “example of the more ‘usual’ case in which the executing officers acted in
good faith.” Id.
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The present case does not precisely mirror the facts of Riccardi—here, the
officer who wrote the affidavit was not directly involved in the forensic analysis
of the computer, but instead instructed another officer on what to search for—but
we nonetheless find them substantially similar. The fact that the officer
conducting the computer search had not been involved from the beginning of the
investigation does not alone militate against good faith when that officer
received—and, more importantly, followed—search instructions that limited the
scope of his search to crimes for which there was probable cause. Moreover, one
of the more important facts that the two share in common is the officers’ attempts
to satisfy all legal requirements by consulting a lawyer. See id. at 864. (“By
consulting the prosecutor, they showed their good faith in compliance with
constitutional requirements.”). Indeed, a frequent criticism of the good faith
exception is that it encourages officers not to make these consultations and “risk
that some conscientious prosecutor . . . will say the application is insufficient
when, if some magistrate can be induced to issue a warrant on the basis of it, the
affidavit is thereafter virtually immune from challenge[.]” W AYNE R. L E F AVE , 1
S EARCH AND S EIZURE 68 (4th ed.). The fact that Inspector Herman, like the
officer in Riccardi, made this step is an important indicator of her good faith. If
more officers took such precautions we would have greater rather than less
protection of Fourth Amendment rights.
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The district court questioned whether Inspector Werbick’s search
methodology was in fact limited in scope to items for which there was probable
cause. Dist. Op. 21. Specifically, it noted that the search did not include a date
restriction and also generated false hits, which required him to view non-relevant
information. The search methodology, however, does not seem to have been
motivated by any belief that the warrant gave Inspector Werbick free rein over
Ms. Otero’s computer, but by the fact that “[g]iven the numerous ways
information is stored on a computer, openly and surreptitiously, a search can be as
much an art as a science.” Brooks, 427 F.3d at 1252. A date restriction, for
instance, would have been impossible to apply in the search of the unallocated
space where the two pertinent documents were found, and even in other portions
of the hard drive and disks we do not know how effective the restrictor would
have been. This search was reasonably constructed to limit the amount of
irrelevant data while still effectively uncovering relevant evidence. The fact that
some irrelevant information was viewed resulted more from the ease of
electronically storing (and hiding) vast amounts of invisible information than any
overreaching on the part of the officers.
The inspectors in this case had reason to believe the warrant was valid,
considered themselves authorized to search only for evidence of crimes for which
they had probable cause, and conducted their search accordingly. We therefore
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hold that the good faith exception should apply and the evidence should not be
excluded.
III. Conclusion
Though we agree with the district court that the warrant authorizing the
search of Ms. Otero’s computer lacked particularity, because we find that the
good faith exception applies, we REVERSE the district court’s order to suppress
and REMAND for further proceedings consistent with this opinion.
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No. 08-2154, United States v. Loretta Otero
BALDOCK, J., concurring in part and concurring in the judgment.
In my view, the slender criticisms lodged against the warrant’s particularity
pale in comparison to the good faith of the officers involved in this case.
Accordingly, I would not reach the validity of the search warrant and do not join
Part II.A of the Court’s opinion. See United States v. Leon, 468 U.S. 897, 925
(1984) (recognizing that reviewing courts possess the discretion to immediately
turn to “a consideration of the officers’ good faith”). I gladly concur in Part II.B
of the Court’s opinion, excepting the language which references the invalidity of
the warrant, and in the Court’s judgment reversing the district court’s suppression
order.
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United States v. Otero
Court: Court of Appeals for the Tenth Circuit
Date filed: 2009-04-28
Citations: 563 F.3d 1127
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