United States v. Otero

                                                                     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:




                                           -3-
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,


                                          -5-
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

                                         -6-
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.




                                          -7-
                                   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

                                          -8-
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.




                                          -10-
      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

                                          -12-
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

                                           -13-
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

                                         -14-
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.

                                         -15-
      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.




                                         -16-
      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




                                            -17-
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.




                                       -18-
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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