Summary
finding “container rationale” of prior Fourth Amendment cases “equally applicable to nontraditional, technological ‘containers' ” such as the laptop computers at issue there
Summary of this case from People v. SwietlickiOpinion
No. 00SA101
March 5, 2001
Interlocutory Appeal from the District Court Boulder County, Case No. 99CR1198 Honorable Daniel Hale, Judge.
ORDER REVERSED AND CASE REMANDED
No. 00SA101, PEOPLE V. GALL : Constitutional Law - Fourth Amendment - Search and Seizure - Good Faith - Scope of Warrant - Seizure of Computers
On interlocutory appeal, the supreme court reverses the district court's order suppressing evidence seized during a search of the defendant's residence. Exclusion of the evidence was erroneous where the search was conducted in reasonable good faith reliance on the warrant, even though the affidavit failed to include information from which the magistrate could independently evaluate the affiant's identification of the defendant's specific apartment number. Furthermore, the seizure of five laptop computers from the defendant's closet was within the scope of the warrant where they were reasonably likely to contain writings, the seizure of which was separately authorized by the search warrant.
Mary W. Keenan, District Attorney, Twentieth Judicial District, William F. Nagel, Chief Deputy District Attorney, Bryan W. Quiram, Deputy District Attorney, Boulder, Colorado, Attorneys for Plaintiff-Appellant
Paul Grant, Englewood, Colorado, Attorney for Defendant-Appellee
The People appealed pursuant to section 16-12-102(2), 6 C.R.S. (2000), and C.A.R. 4.1, challenging the district court's order suppressing all of the evidence seized during a search of the defendant's residence. Because the executing officers acted in reasonable reliance upon a search warrant and the seizure of five laptop computers, later determined to be stolen, was authorized by the warrant, the district court's order is reversed and the case is remanded for further proceedings consistent with this opinion.
I.
Following the seizure of numerous items, including suspected bomb-making materials; hundreds of documents referencing guns, explosives, and bomb making; writings about the defendant's personal feelings; and a number of desktop and laptop computers; the defendant was arrested and charged with one count of felony theft by receiving and three counts of felony possession of explosives and incendiary devices and parts. The defendant moved to suppress everything seized from his residence on the ground that the supporting affidavit failed to articulate probable cause for the search. In addition, he challenged the seizure of five laptop computers, later determined to be stolen, on the ground that they were outside the scope of the warrant.
§ 18-4-410(1), 6 C.R.S. (2000).
§ 18-12-109(6), 6 C.R.S. (2000).
On the day of the suppression hearing, the court granted the defendant's motion to sever the felony theft by receiving count from the three counts of felony possession of explosives and incendiary devices and parts.
At the February 7, 2000 hearing on the defendant's suppression motion, the People presented a copy of the warrant authorizing the search and the six-page, typewritten, supporting affidavit, as well as the testimony of Detective Hartkopp, who authored and presented the affidavit, and Detective Spraggs, who helped execute the search warrant. In the affidavit, Hartkopp outlined his investigation from June 24-26, 1999, into an alleged conspiracy between the defendant, Michael John Gall, and a co-worker, Byron Kyle Dorethy, to murder two of their supervisors at Amgen Incorporated. Detective Hartkopp was assigned to the case following a report to the Boulder Police Department by several Amgen supervisors. An employee named Israel Ramirez had advised them that the defendant and Dorethy, both security guards at Amgen, had been talking about shooting fellow employees at work, including two of the security supervisors named David Barley and Debbie Payne. In subsequent interviews with the police, Ramirez gave details about the alleged co-conspirators' plans to use explosives during an attack at the Amgen facility and their specific threats to shoot Barley and Payne. Ramirez specifically told Detective Hartkopp that the defendant claimed to have used explosives in the past and to have in his possession an AK-47 high-powered rifle, an AR-15 rifle, and a Beretta handgun.
The affidavit also recounted conversations with another employee named Dan Brunson. Although Brunson was unsure of any specific plans to hurt anyone or damage property, he indicated that the defendant had talked about keeping a fully automatic AK-47, an AR-15, and a Beretta handgun at his residence; that once while criticizing someone else for improperly handling explosives, the defendant had explained to Brunson how to make a bomb; and that Dorethy was an emotionally unstable and disgruntled employee. In addition, the affidavit described the discovery by Amgen supervisors of a five-page computer printout in a paperwork box belonging to Dorethy. The final page of the printout was dated the evening of June 23, and contained the address of David Barley, including detailed directions and time of travel from the Amgen building to Barley's residence. The full printout also contained multiple references to AR-15 and AK-47 rifles and other weapons; laudatory comments about the effects of the recent mass shooting at Columbine High School; characterization of the author's own thoughts about killing as "unhealthy;" and use of the name "Mike" in reference to the person to whom his comments were directed. The defendant was the only person with the first name "Mike" known to the security supervisors to be working at the Amgen facility at the same time as Dorethy.
The affidavit also included a number of corroborating details learned by the police during their investigation. These included comments by co-workers about the anger of both the defendant and Dorethy at the impending replacement of the security guards at Amgen by another service; discovery that the work schedules of the defendant and Dorethy placed them as the only two guards in the security office on the shift immediately preceding the discovery of the computer printout; and learning from the FBI that the defendant did not have a permit allowing him to possess a fully automatic weapon. Finally, the affidavit listed a street address as the defendant's residence, learned through the telephone directory, and a second street address, which named officers had personally visited and observed.
Detective Spraggs testified that he participated in the execution of the warrant for the defendant's residence. Although he did not recall seeing the affidavit prior to executing the warrant, he was aware that it authorized the seizure of writings, journals, and other information involving the use of explosives, reflecting the thoughts of the defendant, or otherwise referencing a plan to execute some type of "event" at Amgen. In addition to hundreds of written documents and other things seized during the execution of the warrant, the police also seized two desktop model computers and five laptop computers. Additional warrants were later obtained to search the hard drive memories of these computers for evidence of the suspected conspiracy.
The precise language of the warrant authorized the seizure of:
Any and all firearms and ammunition;
Any and all explosives or incendiary devices, or parts, as defined under CRS 18-12-109;
Any and all written or printed material which provides instructions or examples concerning the production or use of any firearms, ammunition, and explosive or incendiary devices or parts;
Any and all written or printed material which shows an intent to do physical harm or physical damage against any person or building;
Any documents or materials that show the occupier or possessor of the premises and vehicle.
At the conclusion of the hearing, the court delayed its ruling to consider questions concerning the identification of the defendant's residence that had not previously been addressed by the parties. On February 11, it issued a written order concluding that the search warrant for the defendant's apartment was invalid and that the executing officers could not have relied on it in good faith because of the supporting affidavit's failure to identify the defendant's street address as an apartment complex or to specify his apartment number. The district court therefore suppressed everything seized in the search.
On February 23, the People requested a rehearing, without objection, making clear their intent to appeal and asking that the court rule as well on the original grounds asserted in the defendant's motion to suppress, in order to avoid piecemeal litigation of the suppression issues. The court set the rehearing for April 4, almost two months later. While not opening the hearing for additional evidence, the court heard argument and completed its ruling on the defendant's motion to suppress. Specifically, it addressed the defendant's challenge to the seizure of the five laptop computers. In this subsequent ruling, the district court found that although the computers were lawfully viewed by the police, there was nothing in their immediate appearance giving the officers any reason to connect them with criminal behavior. The court indicated that it was unable to conclude that a computer is analogous to a writing, journal, notebook, letter, or any other type of document. It ruled that the People failed to prove that this was the basis for the seizure of the computers and that the computers were lawfully within the scope of the warrant.
On April 14, the People filed their notice of interlocutory appeal in this court pursuant to C.A.R. 4.1.
The defendant contends that this court lacks jurisdiction to hear this interlocutory appeal because the People failed to file their notice of appeal within 10 days of the district court's initial order of February 11. We have previously held that a trial court is not only permitted but under certain circumstances has a duty to reconsider suppression orders, and if it does so, the prosecution may appeal its modified ruling within the time limitations of C.A.R. 4.1. People v. Melton, 910 P.2d 672, 675 n. 5 (Colo. 1996); People in the Interest of J.C., 844 P.2d 1185, 1188 (Colo. 1993). It is even more clear that by accepting an invitation to complete an earlier ruling on a motion to suppress, a trial court demonstrates that the later, rather than the earlier, ruling constitutes its completed ruling on the motion, from which an appeal may be taken.
II.
After the suppression hearing, the district court determined from its own observations that the affidavit, as distinguished from the warrant presented along with it, did not indicate that the defendant's address was an apartment complex or specify the number of the defendant's apartment. After articulating grounds to believe that both the defendant and Dorethy were involved in the conspiracy, and that items connected to the crime would be found at their respective residences, the affidavit stated that officers determined from the telephone directory that the defendant, Michael John Gall, lived at 3161 Madison in Boulder. It then described a second residence in greater detail at 664 Tantra Drive, noting that it was actually visited by the police. However, each page of the affidavit also contained the annotation, "Search Warrant: 3161 Madison N302," and the warrant presented to the magistrate along with the affidavit identified the premises to be searched as 3161 Madison Avenue, Apt. N302. The warrant further described that address as a "four-story apartment building, constructed of brick with brown siding and beige trim," and indicated that apartment "N302" was located on the "North/West side" of the building, with an east front entrance, and that it had a rust colored door with a window, beige trim, a brass door handle, and rust colored numbers "N302" on its right side. The warrant also specifically incorporated by reference the affidavit of Detective Hartkopp, and both the warrant and affidavit cross-referenced Attachment A, containing the list of items for which seizure was authorized by the warrant.
Rather than finding that the affidavit failed to establish probable cause to believe the defendant was committing a crime or that items connected to the crime would be discovered at his residence, the district court found that Hartkopp's affidavit failed to identify the specific apartment that was the defendant's residence and failed to request a warrant to search that apartment. The court ultimately concluded that the affidavit "was so lacking in indicia of probable cause as to render the executing officer's reliance entirely unreasonable."
The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. U.S. Const. amend. IV.; People v. Altman, 960 P.2d 1164, 1167 (Colo. 1998). Although search warrants are not required by the text of the Fourth Amendment, the jurisprudence of the Supreme Court has consistently expressed a strong preference for warrants issued by neutral magistrates. United States v. Leon, 468 U.S. 897, 914 (1984); United States v. Ventresca, 380 U.S. 102, 106-07 (1965); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.1(a) (3d ed. 1996 Supp. 2001). Even the text of the Fourth Amendment specifies, however, that warrants may issue only upon probable cause and must particularly describe the place to be searched and the person or things to be seized. U.S. Const. amend. IV.
Probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment, and probable cause involves probabilities similar to the factual and practical questions of everyday life upon which reasonable and prudent persons act. People v. Grazier, 992 P.2d 1149, 1153 (Colo. 2000); People v. MacCallum, 925 P.2d 758, 762 (Colo. 1996). Similarly, the information that can be relied upon to establish probable cause need not be admissible evidence, but relatively complex rules have developed concerning the nature and sources of information that may be considered sufficiently reliable. Ventresca, 380 U.S. at 109. Furthermore, unlike probable cause to arrest, which merely entails sufficient grounds to believe that a crime was committed and that the suspect committed it, MacCallum, 925 P.2d at 762, probable cause for a search implicitly requires both sufficient grounds to connect the sought-after items to a crime and grounds to believe those items will be located in the place to be searched at the time of the search, People v. Quintana, 785 P.2d 934, 936 (Colo. 1992).
The notion of sufficient connection with a crime was long ago expanded beyond contraband, fruits of a crime, and instrumentalities used to commit a crime, to include even "mere evidence" of a crime. Warden v. Hayden, 387 U.S. 294, 301 (1967); People v. Torano, 622 P.2d 562, 567 (Colo. 1981).
Although exceptions to the warrant requirement are recognized in narrowly defined circumstances, where executive branch officers present their grounds for a search to a judicial magistrate and rely on a judicial determination of probable cause rather than their own, the public policy encouraging warrants dictates that probable cause be reviewed with deference to the issuing magistrate. See Illinois v. Gates, 462 U.S. 213, 239 (1983). The appropriate question for a court reviewing a search authorized by a warrant is therefore whether the issuing magistrate had a substantial basis for issuing the search warrant rather than whether the reviewing court would have found probable cause in the first instance. Id.; see also Ventresca, 380 U.S. at 109; People v. Randolph, 4 P.3d 477, 482 (Colo. 2000); Quintana, 785 P.2d at 937.
However, even where no substantial basis is found to support issuance of a search warrant, the exclusionary rule will not be applied if its purposes would be more costly than beneficial. Leon, 468 U.S. at 920-21. The exclusionary rule is designed to deter police misconduct and to hold the executive branch accountable for official police misconduct. Id. at 916; Altman, 960 P.2d at 1170; People v. Deitchman, 695 P.2d 1146, 1152 (Colo. 1985) (Erickson, C.J., concurring). Because neutral judicial officers have no stake in the outcome of particular criminal proceedings, the threat of exclusion cannot be expected to significantly modify their behavior. Leon, 468 U.S. at 916; see also Deitchman, 695 P.2d at 1152 (Erickson, C.J., concurring); id. at 1160 (Dubofsky, J., concurring). Therefore, where a police officer relies in good faith on a facially valid warrant, the purpose of the exclusionary rule is not furthered by the suppression of relevant and probative evidence. Leon, 468 U.S. at 926, Deitchman, 695 P.2d at 1160 (Dubofsky, J., concurring).
While it may be presumed that an officer was acting in good faith if he was acting pursuant to a warrant, see § 16-8-301(1), 6 C.R.S. (2000);Randolph, 4 P.3d at 483; Altman, 960 P.2d at 1169-70, see also United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir 1985) (Leon good faith principle creates a presumption that when an officer relies upon a warrant, the officer is acting in good faith), exclusion is still called for whenever the officer "lacks reasonable grounds for believing that the warrant was properly issued." Leon, 468 U.S. at 923, Altman, 960 P.2d at 1169-70. In Leon, the Court specified four situations in which this would be the case. An officer lacks reasonable grounds where (1) the warrant was issued on the basis of a deliberately false affidavit; (2) the issuing magistrate or judge has wholly abandoned his or her neutral and detached role; (3) the warrant is so facially deficient that the executing officer cannot reasonably believe the warrant is valid; or (4) the affidavit is so lacking in indicia of probable cause that official belief in its existence is unreasonable.Leon, 468 U.S. at 923. Where the warrant is not facially deficient and the there is no suggestion of misbehavior by the police or magistrate, the exclusionary rule will therefore generally fail in its purposes unless it would be apparent to a reasonably well-trained officer that the affidavit was inadequate. Id. at 926; Altman, 960 P.2d at 1169-70 (officer's good faith reliance not to be impugned unless "entirely unreasonable" to believe the affidavit supported issuance of the warrant).
After the testimony and argument at the original suppression hearing, the district court observed what neither counsel had detected. In the body of the affidavit, the street address attributed to the defendant from the telephone directory did not include an apartment number. Moreover, the affidavit made a specific request for a warrant to search the Tantra Drive address, not the Madison Avenue address. Focusing on the distinction between the warrant and the affidavit, the district court concluded that the affidavit by itself failed to identify or request a warrant to search the defendant's apartment and that the information included in the warrant could not be considered to remedy that omission.
The distinction between a search warrant and a supporting affidavit, however, is not so technical or inflexible. Each performs a separate function, but the Fourth Amendment does not mandate that certain information appear in a document entitled, "Warrant," and other information appear in a document entitled, "Affidavit." Here, both documents were prepared by the same officer and presented to the magistrate at the same time. There can be no doubt that the affidavit, which contained on every page the annotation, "Search Warrant: 3161 Madison N302," and which accompanied an unsigned warrant to search Apartment N302 of the four-story apartment complex at 3161 Madison Avenue in Boulder, was an affidavit in support (and requesting issuance) of the warrant to search that apartment. Under these circumstances, there was never any danger of confusion about the specific apartment for which the search was authorized. Similarly, when the warrant and annotation are considered along with the statement in the body of the affidavit identifying the defendant's address as 3161 Madison, there can be no doubt that the affiant effectively identified apartment N302 at 3161 Madison Avenue as the defendant's residence, one of the two residences for the search of which the affidavit provided probable cause.
Regardless of the form of the documents, however, a search warrant must be supported by probable cause to search a specific place. Randolph, 4 P.3d at 481. This requires sufficient information to permit the issuing magistrate to evaluate the source and reliability of the affiant's information. Gates, 462 U.S. at 238; Randolph, 4 P.3d at 484. While the information contained in the affidavit and warrant in this case adequately identified a specific apartment as the defendant's residence, it nevertheless failed to indicate the affiant's source of that information. With respect to this single link in the chain of inferences required for probable cause to search the particular apartment that was searched, the affidavit was silent and therefore arguably failed to provide a substantial basis for the issuing magistrate's action.
Even under these circumstances, however, the exclusionary sanction should not have been applied unless the affidavit was so lacking in indicia of probable cause that official belief in its existence was unreasonable. Leon, 468 U.S. at 926; Altman, 960 P.2d at 1169-70. Such an affidavit has been characterized as a "bare bones" affidavit, referring to its conclusory nature. Randolph, 4 P.3d at 482; Altman, 960 P.2d at 1170. Although a well-trained officer must be expected to know that a magistrate must be given sufficient information to enable the magistrate to evaluate the conclusions asserted by the affiant, a number of courts have found it easy to understand how an officer, and even an issuing magistrate, might overlook a lack of detail on a point that is so common or public that it can often be established by the telephone book or the name on a mailbox. See United States v. Shutters, 163 F.3d 331, 337-38 (6th Cir. 1998) (where affidavit describes defendant's address with such particularity that the common sense inference is the affiant personally observed the residence, or determined through investigation defendant was associated with premises, the omission does not render the affidavit "bare bones"), cert. denied, 526 U.S. 1077 (1999); United States v. Procopio, 88 F.3d 21, 28 (1st Cir. 1996) (affidavit is not "bare bones" where only omission is affiant's failure to express how he knew given address was the defendant's, as it is "easy to understand how both the officer applying for the warrant and the magistrate might overlook a lack of detail on a point often established by the telephone book or the name on a mailbox"), cert. denied, 519 U.S. 1138 (1997); see also United States v. Shea, 211 F.3d 658, 666 (1st Cir.) (while questioning whether expressly providing basis for knowledge of defendant's residence in affidavit is a required link in the chain, court ultimately concluded that even if it was a necessary link omission of this information was a minor, and not necessarily infrequent, error encompassed by the Leon good faith exception), cert. denied, 69 U.S.L.W. 3553 (U.S. Feb. 20, 2001); United States v. Brown, 832 F.2d 991, 994-96 (7th Cir. 1987) (officer's belief that warrant authorized search, even though containing only a conclusory statement linking defendant to premises to be searched, was objectively reasonable and good faith exception applied), cert. denied, 485 U.S. 908 (1988);State v. Varnado, 675 So.2d 268, 270-71 (La. 1996) (officer and magistrate's failure to notice omission of information linking the defendant to the searched residence was objectively reasonable and application of exclusionary rule could serve no remedial purpose); Braxton v. State, 720 A.2d 27, 48 (Md.Ct.Spec.App. 1998) (where affidavit reasonably implied residence to be searched was the defendant's, and probable cause existed to search defendant's residence, good faith doctrine could fill any potential gap in the factual basis underlying the affiant's assertions).
In this case, the suspect was not unidentified, a fugitive from justice, or a transient without regular living quarters. He was a security guard, employed by the very company initiating the investigation, living at an apartment complex in the city, with an address listed in the telephone book. The affidavit recounted conversations with his co-workers and supervisors over a three-day investigation and gave a detailed description of the exterior of his apartment, clearly requiring someone's first-hand observations. Nothing in the six-page affidavit suggests any irregularity in the defendant's living arrangements or reason to suspect stealth or deception with regard to the location of his residence. Furthermore, neither the police nor the magistrate noticed the omission when the warrant was issued, and neither the attorneys nor the district court specifically identified a problem with the source of the apartment number, even at the suppression hearing or on appeal.
Not every instance of insufficient attention to detail by police officers, any more than by attorneys or judges, is unreasonable. See Deitchman, 695 P.2d at 1158 (Dubofsky, J., concurring) (failure of affiant to include how he knew defendant's address was not so "egregious" as to render reliance on the warrant "entirely unreasonable"). If the good faith exception to the exclusionary rule applied only to matters as to which reasonable minds could differ, it would add nothing to the substantial basis standard of review that predated its development. At least where, as here, the affidavit merely fails to provide support for an easily obtained and seemingly obvious piece of information, that omission does not render an otherwise detailed and complex affidavit a "bare bones" affidavit. In the absence of any evidence of a deliberately false affidavit, abandonment by the judge of his duty, or a facially deficient warrant, the exclusion of evidence discovered in reliance on the search warrant in this case was improper.
III.
For separate reasons the defendant challenged the seizure of five laptop computers, which were later determined to be stolen and provided the basis for a charge of felony theft by receiving. At the suppression hearing, Detective Spraggs testified that in addition to hundreds of writings and bomb-making materials, the police seized two desktop computers that had been assembled in the defendant's living room, five laptop computers found in individual carrying cases on the floor of one of the defendant's closets, a fax machine, and a projector. Spraggs also related his understanding that the warrant authorized the seizure of any written or printed items pertaining to guns, explosives, the making of explosives, the defendant's personal thoughts, or plans to execute some type of "event" at Amgen. He further made clear his personal awareness, prior to executing the warrant, that the Internet could be used to obtain and download materials on bomb making and that people routinely use computers as word processors and for the exchange of e-mail.
Although the trial court did not initially rule on this challenge, it ultimately ruled that computers were not analogous to writings, and therefore seizure of the computers was outside the scope of the warrant. The court premised this ruling on its recollection that the People had not presented any evidence indicating that this was "the type of thing typically stored on a computer," and that the People had not proven by a preponderance of the evidence that this was the purpose for seizing these computers.
In deciding whether items discovered during the execution of a search warrant are within the scope of the warrant, police officers are not obliged to interpret its terms narrowly. United States v. Hill, 19 F.3d 984, 987 (5th Cir.) (quoting United States v. Stiver, 9 F.3d 298, 302-03 (3d Cir. 1993)), cert. denied, 513 U.S. 929 (1994); see also United States v. Somers, 950 F.2d 1279, 1285 (7th Cir. 1991), cert. denied, 504 U.S. 917 (1992); United States v. Lucas, 932 F.2d 1210, 1215-16 (8th Cir.), cert. denied, 502 U.S. 949 (1991). They may search the location authorized by the warrant, including any containers at that location that are reasonably likely to contain items described in the warrant. See In re D.F.L., 931 P.2d 448, 451-52 (Colo. 1997); People v. Press, 633 P.2d 489, 492-93 (Colo.App. 1981) (upholding officer's removal and subsequent search of defendant's safe at another location where safe was reasonably believed to contain items sought pursuant to a valid search warrant); see also United States v. Gomez-Soto, 723 F.2d 649, 654-55 (9th Cir. 1983) (upholding seizure of briefcase where warrant authorized seizure of books, papers, diaries, and receipts), cert. denied, 466 U.S. 977 (1984). This container rationale is equally applicable to nontraditional, technological "containers" that are reasonably likely to hold information in less tangible forms. See United States v. Meriwether, 917 F.2d 955, 958 (6th Cir. 1990) (upholding search of "pager" where warrant authorized seizure of phone numbers); Gomez-Soto, 723 F.2d at 654-55 (upholding seizure of cassette tapes where warrant authorized seizure of books, papers, diaries, and receipts). Similarly a warrant cannot be expected to anticipate every form an item or repository of information may take, and therefore courts have affirmed the seizure of things that are similar to, or the "functional equivalent" of, items enumerated in a warrant, as well as containers in which they are reasonably likely to be found. See Hill, 19 F.3d at 987-89 (check stubs as functional equivalent of cash disbursement journals), cert. denied, 513 U.S. 929 (1994); United States v. Word, 806 F.2d 658, 661 (6th Cir. 1986) (patient sign-in sheets, receptionist day sheets, encounter sheets and forms, and admission records deemed to be the functional equivalent of medical records, payment records, and appointment records), cert. denied, 480 U.S. 922 (1987); United States v. Reyes, 798 F.2d 380, 383 (10th Cir. 1986) (cassette tapes as functional equivalent of writings.);United States v. Musson, 650 F. Supp. 525, 531-32, 539 (D.Colo. 1986) (computer disks and diary as functional equivalent of various specified types of documents, writings, and records evidencing money laundering or narcotics trafficking); see also LaFave, supra, § 4.11(c), at 692.
Contrary to the holding of the trial court, the computers found in the defendant's closet were reasonably likely to serve as "containers" for writings, or the functional equivalent of "written or printed material," of a type enumerated in the warrant. The executing officers were authorized to seize materials that provided instructions or examples concerning the production or use of any firearms, ammunitions, and explosive or incendiary devices or parts, as well as materials showing an intent to do physical harm or physical damage against any person or building. The computers were not found in a packaged state or in any way suggesting that they could not have been used for the purposes for which they were designed. The officers had already found an abundance of written materials in the defendant's residence that were described in the warrant, and the unchallenged testimony of Detective Spraggs made clear his conscious consideration of the computers' usefulness for correspondence and downloading information from the Internet. In any event, the subjective motive of an executing officer is inconsequential to the seizure of items pursuant to a search warrant. A policeman's ulterior motive could no more bar a search within the scope of a properly issued warrant than could his pure heart entitle him to exceed the scope of the warrant. United States v. Ewain, 88 F.3d 689, 694 (9th Cir.),cert. denied, 519 U.S. 944 (1996); see also Whren v. United States, 517 U.S. 806, 813 (1996) (subjective intentions of police officers play no role in ordinary, probable-cause Fourth Amendment analysis); Scott v. United States, 436 U.S. 128, 137-38 (1978) (officer's actions, and not his underlying intent or motivation, are determinative in a Fourth Amendment analysis.); Altman, 938 P.2d at 146.
Rather than attempting to "search" the computers at the scene, the officers merely seized the computers and sought further search warrants to inspect their contents. For various policy reasons, the removal of a sealed container, which may amount to an "over-seizure," is not only authorized but preferred in limited circumstances, including where "the sorting out of the described items from the intermingled undescribed items would take so long that it is less intrusive merely to take that entire group of items to another location and do the sorting there." LaFave, supra, at § 4.11(a), p. 686; see also United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) (seizure of filing cabinets for later search off-site reasonable where impractical to sift through all records on site), cert. denied, 523 U.S. 1079 (1998); United States v. Schilling, 826 F.2d 1365, 1369-70 (4th Cir. 1987) (seizure of filing cabinet for search at another location permissible where volume of documents in cabinets made on-site search for authorized documents impractical), cert. denied, 484 U.S. 1043 (1988); United States v. Johnson, 709 F.2d 515, 516 (8th Cir. 1983) (permissible for officers to remove locked safe reasonably believed to contain items sought pursuant to valid warrant from the premises to another location where it could be opened); United States v. Abrahams, 493 F. Supp. 310, 313 (S.D.N.Y. 1980) (reasonable for officers to remove locked safe and locked filing cabinet where these "containers" could likely hold items sought via search warrant and exigent circumstances justify removal for search at different location).
Courts in other jurisdictions have found this rationale for the seizure and removal of containers not only applicable but in fact compelling with regard to computers. In addition to the problems of volume and commingling, the sorting of technological documents may require a search to be performed at another location "because that action requires a degree of expertise beyond that of the executing officers," LaFave, supra, § 4.11(a), 686, not only to find the documents but to avoid destruction or oversearching. See United States v. Upham, 168 F.3d 532, 535-36 (1st Cir.) (permissible for agents to seize computer, computer equipment, and disks where search on the premises could not readily be performed), cert. denied, 527 U.S. 1011 (1999);United States v. Schandl, 947 F.2d 462 (11th Cir.) (holding that to force agents to conduct a thorough search of a large volume of written documents and computer discs on-site would actually amount to more intrusive search requiring substantially longer amount of time), cert. denied, 504 U.S. 975 (1991); United States v. Scott-Emuakpor, No. 1:99-CR-138, (W.D.Mich. Jan. 25, 2000) (seizure of computer permissible where warrant authorized seizure of "certain computer files" and officer could not perform the necessary search to locate these files on-site);United States v. Hunter, 13 F. Supp.2d 574, 583 (D.Vt. 1998) (affirming the wholesale seizure of computer and computer equipment on grounds that it often is simply impractical to search computers on site; recognizing that computers are extremely vulnerable to tampering, hiding, and destruction; and stating that "until technology and law enforcement expertise render on-site computer records searching both possible and practical, wholesale seizures, if adequately safeguarded, must occur"); United States v. Sissler, No. 1:90-CR-12 (W.D.Mich. Aug. 30, 1991) (concluding that computer functions as a container for written "records," and holding it reasonable for officers to seize computer and discs for subsequent search to be performed at another location by computer expert).
In fact, the more substantial problem that may arise is properly limiting a search of the contents of a lawfully seized computer, which is not at issue here. See In re Subpoena Duces Tecum, 846 F. Supp. 11, 13-14 (S.D.N.Y. 1994) (quashing subpoena as too broad and noting technical methods of narrowing search of computer data to balance privacy in irrelevant documents intertwined with relevant documents sought by government); Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. Tech. 75, 78, 87-89 (1994). Here, the officers merely seized and inventoried the computers for a subsequent search pursuant to a second, more detailed warrant. At least where the police were executing a search warrant authorizing the seizure of written materials typically composed, sent, received, or stored on a personal computer, and the executing officers had actually found written materials at the defendant's residence within the scope of the warrant, it was reasonably likely that apparently operable personal computers also found at that residence would contain similar materials or their functional equivalent. Seizure of the computers was therefore authorized by the warrant.
IV.
In sum, the issuing magistrate was presented with a specific request for a warrant to search 3161 Madison Avenue Apartment N302, and the warrant he signed specifically authorized a search of that apartment. Although the affidavit failed to include information from which the magistrate could independently evaluate the affiant's identification of apartment N302 as the defendant's residence, under the circumstances of this case that omission was understandable and not so egregious as to render official belief in the existence of probable cause unreasonable. Finally, in the circumstances present here, the five laptop computers discovered in the defendant's closet were reasonably likely to contain items identified in the warrant, and their seizure was authorized by the warrant. Therefore, the order of the district court suppressing everything seized from the defendant's residence, including the five laptop computers, is reversed, and the case is remanded for further proceedings consistent with this opinion.
JUSTICE MARTINEZ dissents, and JUSTICE HOBBS and JUSTICE BENDER join in the dissent.