United States v. Sears ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-10573
Plaintiff-Appellee,
v.  D.C. No.
CR-01-00070-MJJ
JOHN SEARS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
December 7, 2004—San Francisco, California
Filed June 20, 2005
Before: Alex Kozinski, William A. Fletcher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge William A. Fletcher;
Dissent by Judge Kozinski
7271
7274 UNITED STATES v. SEARS
COUNSEL
Amber S. Rosen, Office of the U.S. Attorney, San Jose, Cali-
fornia, for the plaintiff-appellee.
Stuart D. Hanlon, San Francisco, California, for the
defendant-appellant.
OPINION
W. FLETCHER, Circuit Judge:
In this case, we must determine the proper remedy for a
search pursuant to a warrant that, due to police error in pre-
paring the document for distribution, contained eight words
not reviewed by a neutral magistrate. The eight words were
UNITED STATES v. SEARS 7275
“or nearby” (twice) and “but not limited to.” It is undisputed
that those words expanded the scope of the search and vio-
lated 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 vio-
lation was not flagrant, and the invalid portions of the war-
rants were relatively insignificant, we hold that blanket
suppression was not required.
I. 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 war-
rant referred to an attachment, Exhibit A, specifying the items
the officers were authorized to seize.
In the version of the warrant approved by San Francisco
Superior Court Judge Leonard Louie, Exhibit A follows Offi-
cer Kasper’s statement of probable cause and begins at the
bottom of page 6 of the search warrant and affidavit. Officer
Kasper testified that he created Exhibit A by clicking on a file
named “cocaine exhibit” and merging it with the file contain-
ing the rest of the search warrant. Officer Kasper further testi-
fied that, unbeknownst to him at the time he prepared the
warrant for Judge Louie’s approval, the police department
computer contained multiple versions of Exhibit A. Judge
Louie approved the warrant containing the December 1998
version of Exhibit A.
In the course of litigating Sears’s March 6, 2002 motion to
suppress cocaine seized in the subsequent search,1 it was dis-
1
Sears had filed an earlier motion to suppress on May 31, 2001. The
first motion to suppress is not relevant to this appeal.
7276 UNITED STATES v. SEARS
covered that the version of Exhibit A approved by Judge
Louie was not the version of Exhibit A given to the searching
officers. After receiving Judge Louie’s approval, Officer
Kasper prepared copies of the warrant for the search team.
Officer Kasper testified that as a matter of standard SFPD
practice, officers do not generally serve the statement of prob-
able cause along with the rest of the search warrant. He also
testified that because it was typical for the description of the
items authorized for seizure (contained in Exhibit A) to be
written on a separate page from the statement of probable
cause, he sought to eliminate that part of the probable cause
statement that spilled over to the first page of Exhibit A. He
therefore printed out a fresh copy of Exhibit A on a separate
sheet of paper instead of making copies of Exhibit A from the
original set of papers signed by Judge Louie. Officer Kasper
testified that in creating the fresh copy he inadvertently
attached the July 1997 version of Exhibit A, rather than the
December 1998 version approved by Judge Louie, to the war-
rant given to the search team.
The version of Exhibit A given to the search team differed
from the version of Exhibit A actually approved by Judge
Louie. Exhibit A, in the form given to the search team, autho-
rized a search for
[a]ll articles of personal property tending to establish
and document sales of cocaine, consisting in part, of
articles of personal property tending to establish the
identity of persons in control of premises, vehicles,
storage areas or containers located at, or nearby, or
related to the subject premises where cocaine may be
hidden. All vehicles, storage areas or containers
located at, or nearby, or related to the subject prem-
ises where cocaine may be hidden; all articles of per-
sonal property tending to establish the location of
such premises, vehicles, storage areas or containers
where cocaine may be found or secreted, consisting
of and including but not limited to, utility bills and
UNITED STATES v. SEARS 7277
receipts, rent receipts, canceled mail envelopes and
keys.
(Emphasis added.) The italicized phrases indicate language
not included in the version of Exhibit A shown to and
approved by Judge Louie. Except for the addition of the itali-
cized phrases, the two versions of Exhibit A were identical.
Officer Kasper testified that he did not learn that the two ver-
sions of Exhibit A differed until a few weeks prior to the July
31, 2002 evidentiary hearing on the discrepancies between the
two attachments.
After preparing copies of the warrant, Officer Kasper con-
ducted a search warrant briefing. At the briefing, he correctly
informed the assembled officers that he had “a search warrant
signed by the Honorable Judge Louie of the San Francisco
Superior Court” for “the person of John Sears” and “his resi-
dences at 7 Maddux and 84 Latona.” Officer Kasper was not
present during the search of Sears’s room at 7 Maddux, which
turned up currency, crack and powder cocaine, and narcotics
packaging and paraphernalia. On January 5, 2001, Officer
Kasper filed a return to search warrant form. In this form, he
recorded the locations searched as “84 Latona” and “7 Mad-
dux,” and noted that “all items [were] seized from 7 Mad-
dux.” No items were seized pursuant to the “or nearby” or
“but not limited to” language of Exhibit A.
When Sears discovered the discrepancies between the war-
rant as issued and the warrant as executed, he moved to sup-
press “for an illegal search based on a warrant that was never
approved by the judge.” After a hearing, the district court
found Officer Kasper’s account credible. The district court
also stated that the wrong version of Exhibit A was attached
to the warrant and taken to the site of the search “by mistake.”
Based on New York v. Harris, 495 U.S. 14 (1990), and
United States v. Clark, 31 F.3d 831 (9th Cir. 1994), the dis-
trict court ultimately held that “only those items seized pursu-
7278 UNITED STATES v. SEARS
ant to the overbroad part of the warrant would be subject to
suppression.” Because no evidence was seized pursuant to the
overbroad parts of the warrant, the district court effectively
denied Sears’s motion to suppress. Sears pled guilty to pos-
session of cocaine base and cocaine powder in violation of 21
U.S.C. § 841(a)(1), reserving his right to appeal the district
court’s ruling on his suppression motion.
We review a motion to suppress de novo. United States v.
Jones, 286 F.3d 1146, 1150 (9th Cir. 2002). We review the
district court’s underlying factual findings for clear error. Id.II. Analysis
[1] The Fourth Amendment provides 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.” U.S Const.
amend. IV. The Supreme Court has held that “the presump-
tive rule against warrantless searches applies with equal force
to searches whose only defect is a lack of particularity in the
warrant.” Groh v. Ramirez, 540 U.S. 551, 559 (2004). We
have “found warrants to lack sufficient particularity when
they have failed to specify the items to be seized, or the loca-
tion to be searched.” United States v. Hotal, 143 F.3d 1223,
1226 (9th Cir. 1998) (citation omitted).
The particularity requirement serves several purposes. It
prevents “a general, exploratory rummaging in a person’s
belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467
(1971). It also “assures the individual whose property is
searched or seized of the lawful authority of the executing
officer, his need to search, and the limits of his power to
search.” Groh, 540 U.S. at 561 (quoting United States v.
Chadwick, 433 U.S. 1, 9 (1977)); see also Stanford v. Texas,
379 U.S. 476, 485 (1965) (stating that particularity ensures
that “nothing is left to the discretion of the officer executing
the warrant”) (citation and internal quotation marks omitted).
UNITED STATES v. SEARS 7279
We have noted that “the absence of a sufficiently particular
warrant increase[s] the likelihood and degree of confronta-
tion” between the searching officers and the individuals
whose property is subject to search. Ramirez v. Butte-Silver
Bow County, 298 F.3d 1022, 1027 (9th Cir. 2002) (as
amended), aff’d, Groh v. Ramirez, 540 U.S. 551 (2004).
Finally, an invalid warrant deprives individuals “of the means
to be on the lookout and to challenge officers who might have
exceeded the limits imposed by the magistrate.” Id.[2] The government concedes that the changes to Exhibit A
after the warrant was approved by Judge Louie violated the
Fourth Amendment’s particularity requirement. However,
what is at issue in this appeal is not the violation, but the rem-
edy. The parties agree that the exclusionary rule should apply,
but disagree as to its scope. The “prime purpose of the exclu-
sionary rule is to deter future unlawful police conduct and
thereby effectuate the guarantee of the Fourth Amendment
against unreasonable searches and seizures.” Illinois v. Krull,
480 U.S. 340, 347 (1987) (internal quotation marks omitted).
The Supreme Court has instructed:
As with any remedial device, application of the
exclusionary rule properly has been restricted to
those situations in which its remedial purpose is
effectively advanced. Thus, in various circum-
stances, the Court has examined whether the rule’s
deterrent effect will be achieved, and has weighed
the likelihood of such deterrence against the costs of
withholding reliable information from the truth-
seeking process.
Id. In the interest of deterrence, “evidence should be sup-
pressed ‘only if it can be said that the law enforcement officer
had knowledge, or may properly be charged with knowledge,
that the search was unconstitutional under the Fourth Amend-
ment.’ ” Id. at 348-49 (quoting United States v. Peltier, 422
U.S. 531, 542 (1975)); see also United States v. Leon, 468
7280 UNITED STATES v. SEARS
U.S. 897, 918 (1984) (“[S]uppression of evidence obtained
pursuant to a warrant should be ordered only on a case-by-
case basis and only in those unusual cases in which exclusion
will further the purposes of the exclusionary rule.”).
[3] Based on the Supreme Court’s decision in Krull, we
have set forth three factors that determine whether the exclu-
sionary rule should be applied in a particular case:
(1) whether suppression would affect the group con-
duct that the exclusionary rule was designed to pun-
ish, i.e., police misconduct; (2) the source of the
error in the particular case and whether any evidence
suggested that the source, e.g., issuing magistrates,
was inclined to ignore or subvert the Fourth Amend-
ment; and (3) the basis for believing the exclusion of
evidence will have a significant deterrent effect upon
the source of the error.
United States v. Luk, 859 F.2d 667, 676 (9th Cir. 1988) (inter-
nal citation and quotation marks omitted). Suppression is not
appropriate if “the incremental deterrent value would be mini-
mal.” New York v. Harris, 495 U.S. 14, 20 (1990).
[4] The unusual facts of this case indicate that the deterrent
value of wholesale suppression would be minimal. We accept
the district court’s factual finding that Officer Kasper did not
deliberately exchange a broader version of Exhibit A for the
version approved by Judge Louie. While requiring suppres-
sion of all the evidence seized in this search would likely
make police officers more careful in preparing, printing, and
photocopying warrants, we believe that in this case the incre-
mental deterrent effect would be outweighed by “the costs of
withholding reliable information from the truth-seeking pro-
cess.” It is undisputed that probable cause existed for the
authorized portions of the warrant. Further, there is no evi-
dence that Officer Kasper intended to “ignore or subvert the
Fourth Amendment.”
UNITED STATES v. SEARS 7281
Sears suggests that by replacing Exhibit A with a freshly
printed copy, Officer Kasper violated the Fourth Amendment
requirement that a warrant be approved by the “objective
mind of a neutral magistrate.” United States v. Gantt, 194
F.3d 987, 991 (9th Cir. 1999) (citation and internal quotation
marks omitted). Sears states that “[i]t is simply indisputable
that the list of items seized attached by the police to the war-
rant had never been seen, much less authorized, by any
judge.” He also contends that total suppression would give
police an incentive to “preserve the integrity of the original
search warrant documents reviewed and approved by the
magistrate.”
Although we agree that police officers should handle search
warrant documents with care, Sears’s emphasis on the integ-
rity of the original search warrant documents is misplaced.
We are certain that there would have been no Fourth Amend-
ment violation had the printout of Exhibit A been identical to
the version approved by Judge Louie, just as we are certain
that photocopies of warrants are acceptable, indeed indispens-
able, aids to searching officers. Sears argues that Officer
Kasper’s actions “removed the judge from the warrant review
process.” This is not really true. While Judge Louie had not
seen the actual piece of paper that the searching officers took
to Sears’s residence, he had in fact authorized a search based
on probable cause. The search authorized by Judge Louie was
identical to the search specified in the new Exhibit A with the
exception of the added words “or nearby,” “or nearby,” and
“but not limited to.”
[5] Partial suppression is proper under this circuit’s doc-
trine of severance, which allows a court “to strike from a war-
rant those portions that are invalid and preserve those portions
that satisfy the fourth amendment.” United States v. Gomez-
Soto, 723 F.2d 649, 654 (9th Cir. 1984). Severance means that
“[o]nly those articles seized pursuant to the invalid portions
need be suppressed.” Id.; see also United States v. Washing-
ton, 797 F.2d 1461, 1473 (9th Cir. 1986) (as amended). We
7282 UNITED STATES v. SEARS
have previously allowed severance when a warrant lacked
particularity because of some unduly broad language in the
warrant. In United States v. Clark, 31 F.3d 831 (9th Cir.
1994), the warrant authorized a search for “narcotic controlled
substances, drug paraphernalia, marijuana cultivation equip-
ment, instructions, notes, cultivation magazines, currency,
documents, and records and fruits and instrumentalities of [a]
violation of Title 21, U.S.C. § 841(a)(1).” Id. at 836. We held
that the italicized language was overbroad and therefore ren-
dered the warrant partially invalid under the Fourth Amend-
ment. Id. To remedy the violation, we remanded to the district
court with instructions to suppress evidence obtained under
the overbroad portion of the warrant. We specifically
instructed, however, that “[t]he court need suppress . . . only
those items seized pursuant to the invalid portion of a search
warrant.” Id.
Total suppression, on the other hand, is appropriate when
a warrant is wholly lacking in particularity. For instance, in
United States v. Grubbs, 377 F.3d 1072 (9th Cir. 2004), we
held that the particularity requirement was not met when an
anticipatory search warrant failed to specify its triggering
event, and a potentially curative affidavit was not presented
to the persons subject to the search. Id. at 1078-79. Because
we found that the officers “in effect, conducted a warrantless
search,” we held that “all evidence obtained during that
search . . . must be suppressed.” Id. at 1079; see also Hotal,
143 F.3d at 1228 n.7 (holding that wholesale suppression was
appropriate when an anticipatory search warrant failed to
identify its triggering event because the deficient warrant
would not have justified entry into the residence “in the first
place”).
We have also used total suppression as a remedy in other
cases involving warrants with serious particularity defects. In
United States v. McGrew, 122 F.3d 847 (9th Cir. 1997), we
reversed the defendant’s conviction because we found that a
warrant that failed to specify any type of criminal activity sus-
UNITED STATES v. SEARS 7283
pected or any type of evidence sought “lacked the requisite —
indeed, any — particularity.” Id. at 850. The warrant in
McGrew expressly incorporated a curative affidavit, but there
was no evidence showing that the affidavit accompanied the
warrant or was presented to the defendant during the search.
Id. at 849. Similarly, in United States v. Van Damme, 48 F.3d
461 (9th Cir. 1995), the search warrant described the places
to be searched and referred to “ATTACHMENT #1” for the
list of items to be seized. Id. at 465. While the magistrate had
reviewed Attachment #1, the police officer failed to make
photocopies of the attachment to staple to the copies of the
warrant given to the searching officers. Id. at 466. We held
that this mistake did not constitute a mere “technical viola-
tion.” Id. Rather, we held that because “the officers had no
document telling them what to take, and Van Damme could
look at no document specifying what the officers could take,”
the error amounted to “a transfer of power to limit the search
from the neutral magistrate, where the Founding Fathers put
it, to the police.” Id. Nevertheless, we concluded that because
the warrant issued on probable cause and adequately
described the places to be searched, evidence seized because
it had been in “plain view” need not be suppressed. Id. at 466-
67.
[6] The doctrine of severance requires that “identifiable
portions of the warrant be sufficiently specific and particular
to support severance.” United States v. Spilotro, 800 F.2d 959,
967 (9th Cir. 1986). In Spilotro, we found it significant that
the items were not “set forth in textually severable portions.”
Id. at 968. Severance was also improper in the case of a war-
rant where “even the most specific descriptions (checks, jour-
nals, ledgers, etc.) [were] fairly general” and contained no
time or subject matter limitations. United States v. Cardwell,
680 F.2d 75, 78-79 (9th Cir. 1982). By contrast, the invalid
portions of the warrant for the search of Sears’s residences are
severable. Aside from the language that was never reviewed
by Judge Louie, Exhibit A contains specific descriptions of
cocaine and items associated with cocaine trafficking.
7284 UNITED STATES v. SEARS
Although the items to be seized are not set forth in separate
paragraphs, it is feasible to excise the eight offending words
— two instances of “or nearby” and the phrase “but not lim-
ited to” — that render the warrant overbroad.
[7] We also take into account the relative size of the valid
and invalid portions of the warrant in determining whether
severance is appropriate. In Spilotro, we declined to sever and
permit seizure of items that “were only a relatively insignifi-
cant part of the sweeping search for evidence of any viola-
tion” of thirteen enumerated statutes. Id. at 967. Yet severance
was “practicable” when “only one of thirteen descriptions”
was insufficiently particularized. Gomez-Soto, 723 F.2d at
654. We have also held that severance is appropriate when
search warrants were overbroad as to “only nine of the
twenty-two persons or entities named,” and “documents of the
persons or entities for which there was probable cause consti-
tuted the focus, and the vast majority, of the files searched.”
In re Grand Jury Subpoenas Dated December 10, 1987, 926
F.2d 847, 858 (9th Cir. 1991). Although the unreviewed parts
of Exhibit A enlarged the scope of the warrant, the items for
which Judge Louie found probable cause — in particular,
cocaine and narcotics paraphernalia — formed “the focus, and
the vast majority” of the search.
[8] Our case law on searches that exceed the terms of valid
warrants also supports a remedy of partial suppression. “Ordi-
narily, only evidence that is obtained in violation of a warrant
is suppressed.” United States v. Chen, 979 F.2d 714, 717 (9th
Cir. 1992). However, “in cases where there is a ‘flagrant dis-
regard’ for the terms of the warrant, the district court may
suppress all of the evidence, including evidence that was not
tainted by the violation.” Id. Wholesale suppression is an “ex-
traordinary remedy” that is appropriate “only when the offi-
cers transform the search into an impermissible general search
by ignoring the terms of the warrant and engaging in indis-
criminate fishing.” Id.UNITED STATES v. SEARS 7285
[9] When officers violate the terms of a warrant in execu-
tion, partial suppression is the norm unless the officers
engaged in a general search. In United States v. Mittelman,
999 F.2d 440 (9th Cir. 1993), the FBI conducted an overbroad
search of a law office. Id. at 441-42. We vacated the district
court’s order to suppress all evidence seized during the search
and remanded for a determination of whether the officers’
actions “amounted to an ‘impermissible general search’ ”
warranting wholesale suppression. Id. at 445 (citing Chen,
979 F.2d at 717). We further held that “[i]f the violations of
the search warrant were not so extreme as to justify this
extraordinary remedy, the district court should determine
what evidence, if any, was seized in violation of the warrant
and order the suppression of that evidence only.” Id.; see also
United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir. 1985)
(“We do not condone the seizure of items not described in the
warrant, but we hold that the agents’ violation of the war-
rant’s terms was not flagrant and did not invalidate the seizure
of relevant items.”); United States v. Offices Known as 50
State Distrib. Co., 708 F.2d 1371, 1376 (9th Cir. 1983) (when
overbreadth does not rise to the level of a “general warrant,”
“[t]he remedy is not a return of all items seized but selective
suppression or return of the items improperly seized”).
[10] Even with the wrong version of Exhibit A, the warrant
in this case fell far short of authorizing a “general search,”
and Officer Kasper’s accidental attachment of the wrong ver-
sion did not rise to the level of “flagrant disregard.” Though
the Exhibit A attached to the warrant was overbroad com-
pared to the version of Exhibit A authorized by Judge Louie,
it significantly constrained the searching officers’ discretion
in terms of the places they could search and the items they
could seize.
[11] For the reasons Judge Kozinski gives in his dissent, we
do not condone the sloppy police work that resulted in the
violation of Sears’s Fourth Amendment rights. Specifically,
we do not condone reprinting from a computer file a docu-
7286 UNITED STATES v. SEARS
ment that is thought to be the same as that contained in an
approved search warrant, as was done here, instead of photo-
copying the document itself. Indeed, if Officer Kasper’s
actions in this case had been shown to be standard practice in
the SFPD, and the resulting problem seen here to be anything
other than unusual and unforeseen, this would be a very dif-
ferent case. However, based on the facts of the case before us,
we conclude that the district court properly ordered suppres-
sion of only that evidence seized pursuant to the unreviewed
portions of the warrant.
AFFIRMED.
KOZINSKI, Circuit Judge, 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 autho-
rized 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
UNITED STATES v. SEARS 7287
serving the probable cause statement at the time a warrant is
executed), there would have been no constitutional problem.
But Officer Kasper did something far more exotic. He logged
into his computer and printed a document titled Exhibit A.
The file Officer Kasper used to print the document was not
the same one he had used to print the Exhibit A and probable
cause statement he had presented to Judge Louie. Rather, he
printed a different file, one that contained only an Exhibit A,
hoping (in vain, as it turns out) that it would contain a
description of seizable items and searchable areas identical to
the one Judge Louie had approved. Officer Kasper then
attached this new Exhibit A to the search warrant without pro-
viding any indication of what he had done.
The majority is “certain that there would have been no
Fourth Amendment violation had the printout of Exhibit A
been identical to the version approved by Judge Louie, just as
[it is] certain that photocopies of warrants are acceptable,
indeed indispensable, aids to searching officers.” Maj. op. at
7281. Not so fast. Making a photostatic image copy of the
warrant the magistrate has actually seen and reviewed is very
different from copying another document that is, in the words
of the majority, “identical” to it. For example, I’m not at all
prepared to say it would have been permissible for Officer
Kasper to photocopy Exhibit A from a different warrant than
the one approved by Judge Louie for 7 Maddux—even if
Officer Kasper thought the two Exhibits A were identical.
Photocopying the very document seen by the judge requires
no judgment and leaves room for few mistakes. Copying
another document opens up the possibility of reproducing
something different from the original; it crosses the fine line
between duplication and forgery.
The risk of error or manipulation is much greater when the
substitution is made using a computer rather than a photoco-
pier. In order to duplicate a document by reprinting it, an offi-
cer first has to find the correct file on the computer—in the
case of an institution like a police department, often choosing
7288 UNITED STATES v. SEARS
from among dozens of similar files. Once he has identified the
right document, the officer must confirm that it was not
altered by someone else and refrain from introducing changes
of his own. The danger that the wrong file will be selected,
or that the right file will be altered, is not trivial. This is espe-
cially true where, as here, the officer deliberately prints a file
he knows is not the one he used to print the original docu-
ment.
Exacerbating the problem is the fact that there is no good
way for a reviewing court to distinguish between inadvertent
and intentional alterations. It seems unlikely that an officer
who purposely alters a warrant will admit it when called to
testify in court. And, because the process of accessing a com-
puter file involves a single person using a machine for just a
few moments, there is no effective way to impeach an officer
who claims he chose the wrong file by mistake.
Of course, distinguishing between intentional and negligent
errors only becomes an issue if the discrepancy is detected.
This is far from certain, as this case illustrates. The diver-
gence between the two versions of Exhibit A came to light
only because Sears filed an earlier motion to suppress,
prompting the government to respond with a declaration from
Officer Kasper in which he revealed how he altered the
judicially-approved warrant before giving it to the leader of
his search team. Without this fortuitous chain of events, Offi-
cer Kasper’s actions would no doubt have remained undiscov-
ered.
An officer who logs into his computer to reprint a file thus
faces a negligible chance of detection if he selects the wrong
file or makes changes to the right one. Human experience
teaches that carelessness and temptation are most easily
avoided when the risk of exposure is high and the penalty
stiff. The corollary is that processes insulated from effective
scrutiny and subject to meager sanctions tend to encourage
sloppiness—or worse.
UNITED STATES v. SEARS 7289
Given the low likelihood of detection and the relatively
wide margin for error or chicanery, I don’t find it at all self-
evident that an officer may duplicate a warrant by printing it
afresh from a computer file. We should be very reluctant to
approve such manipulation of court-approved documents. I
would be more inclined to acquiesce in the procedure if it
served some legitimate purpose that could not easily be
achieved otherwise. Photocopying the warrant approved by
the magistrate, for example, has no ready substitute and is, as
the majority notes, indispensable to the execution and service
of warrants. But the clandestine process adopted by the police
in this case is completely unnecessary. The police depart-
ment’s policy of not including the statement of probable cause
when serving the warrant could easily be satisfied by covering
up or detaching the sections relating to probable cause when
the warrant is photocopied, or by printing the probable cause
statement as a separate document in the first place. There was
simply no need for Officer Kasper to play mix-and-match
with the pages of the search warrant after it had been consid-
ered and authorized by Judge Louie.
2. In any event, we need not decide the esoteric question of
whether the warrant would be valid if Officer Kasper had suc-
ceeded in printing a file identical to Exhibit A. The fact is that
he did not; the file he printed was substantively different from
the Exhibit A approved by Judge Louie, and he omitted the
Exhibit A that Judge Louie had approved. Without the
approved list of seizable items, the warrant was a legal nul-
lity; it was as if Officer Kasper had attached his grocery list
as Exhibit A. The warrant, and hence the search of 7 Maddux,
was entirely invalid. See Groh v. Ramirez, 540 U.S. 551, 557
(2004).
3. The Supreme Court has emphasized that the exclusion-
ary rule is to be applied pragmatically, balancing the costs of
excluding evidence with the benefits of deterring overreach-
ing by law enforcement officers. See Illinois v. Krull, 480
U.S. 340, 347 (1987); United States v. Leon, 468 U.S. 897,
7290 UNITED STATES v. SEARS
906-07 (1984). Relying on cases dealing with overbroad war-
rants, my colleagues conclude that partial suppression—
which in this case means suppression of nothing at all—is the
appropriate remedy. But overbreadth analysis applies to situa-
tions where the warrant, as issued by the reviewing judge,
authorizes searches too general to satisfy constitutional
demands, or includes objects for which there is no probable
cause. See, e.g., United States v. Clark, 31 F.3d 831, 836 (9th
Cir. 1994); In re Grand Jury Subpoenas Dated Dec. 10, 1987,
926 F.2d 847, 857-58 (9th Cir. 1991). Severing and preserv-
ing the valid portions of such warrants is appropriate because
those portions have been authorized in advance by a judicial
officer, and because overbreadth problems are easily detected
and frequently litigated. There is thus little risk that the con-
stitutional defect will go undiscovered; the remedy need be no
broader than the harm.
What we have here, by contrast, is an officer who doctored
a judicially-approved warrant and told no one what he had
done. This conduct was completely unauthorized, quite dan-
gerous and could easily have remained undetected. Now that
it’s come to light, it just won’t do to say “close enough for
government work.” We must make sure that no police officer
even thinks of pulling a stunt like this again.
My colleagues say that “if Officer Kasper’s actions in this
case had been shown to be standard practice in the SFPD, and
the resulting problem seen here to be anything other than
unusual and unforeseen, this would be a very different case.”
Maj. op. at 7286. But why? Fourth Amendment rights are
individual, not collective; I am aware of no doctrine that pro-
vides a different remedy for their violation depending on
whether the rights of others are similarly violated. If Officer
Kasper’s conduct was impermissible and resulted in a viola-
tion of defendant’s rights, as the majority eventually recog-
nizes, see id., then defendant is entitled to the same relief
whether he is the lone victim or one of many. Antiseptic sup-
pression of the seized evidence—and a stern warning that this
UNITED STATES v. SEARS 7291
conduct will never be tolerated—is the only appropriate rem-
edy.