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By Lance J. Rogers
Jan. 7 — Drugs and guns seized during the execution of a valid search warrant needn't be suppressed just because some of the officers took advantage of the situation to steal an iPhone, a PlayStation and other items from the suspects' home, the U.S. Court of Appeals for the Tenth Circuit ruled Jan. 5.
The ordinary remedy when officers seize items not listed in a warrant is suppression of the improperly seized items, not all the evidence, the court said in an opinion by Judge Stephanie K. Seymour.
Blanket suppression is only called for in those very rare cases where officers so flagrantly disregard the limitations of a warrant that they effectively turn the search into a fishing expedition, the court said.
The district court granted Ricky D. Webster's habeas petition on the ground that his lawyer was ineffective for failing to file a motion to suppress because members of an elite tactical team stole cash and several electronic devices from his home while they “secured” the residence prior to its search by the team of narcotics officers who had obtained the search warrant.
Counsel's deficient performance prejudiced Webster, the district court said, because a motion to suppress would have been granted under United States v. Medlin, which ordered blanket suppression of all the evidence seized—not just that which is illegally seized—when officers exhibited “flagrant disregard” for the warrant's terms by taking more than 660 items not named in the warrant.
The Tenth Circuit reversed, saying that Medlin was distinguishable. Medlin, it said, presented a unique situation because the officers used the warrant as a pretext to launch a “fishing expedition.” Their “wholesale seizure” converted the legitimate warrant into a “general warrant,” it said.
By contrast, it said, the officers in the Webster search didn't use the warrant as an excuse to seize everything in sight; they pocketed four distinct items.
Another critical difference between the search here and the fishing expedition in Medlin is the fact that the narcotics officers were not in league with the tactical team, the court said. The taint in Medlin was much greater because all the officers took part in the illegal search, it said.
It also distinguished Medlin on the ground that the officers located the items named in the warrant in the first hour of the search but continued to rummage through the premises for another six hours seizing “anything of value.”
The court rejected Webster's argument that application of the exclusionary rule would operate as a strong deterrent against this type of misconduct, noting that the rogue officers had been prosecuted and convicted.
“We cannot imagine any better deterrence than criminal prosecution,” it said.
Judges Paul J. Kelly Jr. and Scott M. Matheson Jr. joined the opinion.
Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, Kansas City, Mo., represented Webster. The Department of Justice, Washington, represented the government.
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