UNITEDSTATES DISTRICT COURT
NORTHERNDISTRICT OF TEXAS
DALLASDIVISION
UNITEDSTATES OF AMERICA, ) CRIMINAL ACTIONNO.
)
Plaintiff, ) 3:-01-CR-246-P
)
v. )
)
ELIZABETHP. YYY, )
)
Defendant. )
)
MOTIONTO SUPPRESS ALL ITEMS SEIZED FROM 5302 ANCHOR COVE CIRCLE AND MEMORANDUM OF LAWIN SUPPORT THEREOF
Defendant,Elizabeth YYY, hereby moves this Court to suppress all of the items seized infrom the search of her home on July 27, 2002. In support of this motion, Ms. YYY sets forth the followingfacts and argument
I.FACTS
On or about July 27, 2001, detectives from AlleghenyCounty, Pennsylvania, with the assistance of City of Garland police officers,secured a warrant to search the home of Elizabeth YYY located at 5302 AnchorCove Circle, Garland, Texas. Thewarrant permitted the seizure of the following items: Òfinancial records,telephone records, travel receipts, tape recording equipment and cassettetapes, and shipping receipts and documents.Ó While not noted in the search warrant itself, theseizure was based upon allegations that Ms. YYY committed the offense of Murderin violation of Section 2501 of the Pennsylvania Crimes Code and 19.02 of theTexas Penal Code. The affiant tothe affidavit alleged that, on June 1, 2001, Ms. YYY told the Allegheny Countydetectives and Agent James Christie of the Federal Bureau of investigation thatshe maintained control over Òreceipts/documents etc., pertaining to this caseÓand that she told them Òthat these items (evidence) were currently kept in herhouse at 5302 Anchor Cove Circle, Garland, Texas.Ó
Onor about July 27, 2001 the search of Ms. YYYÕs home was conducted. Almost all ÒdocumentsÓ were removedfrom Ms. YYYÕs home whether or not they had any bearing on this case andregardless of their privileged nature. For example, the homework assignments of her children were seized aswell as correspondence between Ms. YYY and her attorneys. In addition, numerous items that werenot authorized to be seized by the search warrant were, in fact, seized. These items included, but were notlimited to: books on witchcraft, stuffed animals belonging to Ms. YYYÕs youngchildren, jewelry, film (both developed and undeveloped), computers, computerdisks, computer equipment, Òvials of colored liquid,Ó cell phones, etc.... In short, those conducting the searchtook everything that they could get their hands on regardless of whether itfell under the terms of the search warrant or not.
II.ARGUMENT
A.The Information Contained in the Search Warrant Affidavit was Stale
It is axiomatic that allegations of probable causeset forth in a search warrant affidavit must show that probable cause exists atthe time the warrant is issued. Indeed, the United States Supreme Court spoke about ÒstaleÓsearch warrant affidavits as early as 1932 in Sgro v. United States, 287 U.S. 206, 211 (1932): Ò[I]t is manifest thatthe proof [contained in a search warrant affidavit] must be of facts so closelyrelated to the time of the issue of the warrant as to justify a finding ofprobable cause at that time.Ó See also 3 Wright, Federal Practice & Procedure, ¤ 662, p. 23. (ÒProbable cause must exist at thetime it is sought to make the search. It is not enough that at some time in thepast there existed circumstances that would have justified the search in theabsence of reason to believe that those circumstances still exist.Ó).
Inthis case, the affiant to the search warrant affidavit stated that Ms. YYY toldlaw enforcement officials on June 1, 2001 that she had Òreceipts/document etc.,pertaining to this caseÓ in her home. Nevertheless, a search warrant for that home was not sought for another eightweeks. Ms. YYY obviously realized she wasa suspect in this case and it would be reasonable to assume that, had she toldofficials that she had such documents in her home, she would have removed themfrom the home during the fifty-six days it took law enforcement officials to get around to securing a searchwarrants. Documents, easilymobile, could have been removed or destroyed with ease.
Inshort, the search warrant affidavit alleging that Ms. YYY told officials shehad Òreceipts/document etc.,pertaining to this caseÓ in her home eight weeks earlier was stale and therebyrendered the search warrant invalid.
B. The Warrant was Overbroad.
As noted above, the warrant permitted the seizure ofthe following items: Òfinancial records, telephone records, travel receipts,tape recording equipment and cassette tapes, and shipping receipts anddocuments.Ó To characterizethe warrant as ÒoverbroadÓ is an understatement.
ÒOverbroadÓor ÒgeneralÓ warrants were one of the primary concerns leading to the enactmentof the Fourth Amendment to the United States Constitutions. Indeed, the colonists were deeplyconcerned about the type of general warrants the British used to search theirhomes in the hopes of finding some evidence of a crime. Marron v. United States, 275 U.S. 192, 195-96 (1927). As noted by the United StatesSupreme Court:
Generalwarrants, of course, are prohibited by the Fourth Amendment."[T]he problem[posed by the general warrant] is not that of intrusion per se, but of ageneral, exploratory rummaging in a person's belongings.... [The FourthAmendment addresses the problem] by requiring a 'particular description' of thethings to be seized." This requirement "'makes general searches...impossible and prevents the seizure of one thing under a warrant describinganother. As to what is to be taken, nothing is left to the discretion of theofficer executing the warrant.'"
Andersonv. Maryland, 427 U.S. 463, 480 (1976)(citations omitted).
TheUnited States Court for the Fifth Circuit in upholding a search warrant in theface of an overbroad challenge where the home searched doubled as a business,issued a strong statement that applies directly to this case:
Ourholding today should not be read as a broad authorization for the issuance ofall records searches of homes. We caution law enforcement agencies to draftwarrants carefully to ensure the mandates of the Fourth Amendment are satisfiedand note that it is only in extreme cases, such as the one before us today,that we will uphold warrants of this type.
UnitedStates v. Humphrey, 104 F.3d 65, 69 n.2(5th Cir.), cert. denied, 520U.S. 1235 (1997). Nevertheless,this was, without question, an Òall documentsÓ search of Ms. YYYÕs home; thevery type of search the Fifth Circuit states it would not authorize. Indeed, in this case, the warrantcalled for the wholesale seizure of all document in Ms. YYYÕs home as well asall her financial records regardless of whether they related to the death ofJohn YYY. A review of theÒdocumentsÓ seized include the homework of Ms. YYYÕs children and otherÒdocumentsÓ purely of a personal nature.
UnitedStates v. Blitzstein, 800 F.2d 959 (9thCir. 1986) is very instructive. The warrants at issue in that case Òauthorize[d] wholesale seizures ofentire categories of items not generally evidence of criminal activity, andprovide[d] no guidelines to distinguish items used lawfully from those thegovernment had probable cause to seize.Ó Id. at 964.[2]Ultimately the Court concluded that the warrants at issue did Ònot describe theitems to be seized with sufficient particularityÓ and that the warrants couldnot be distinguished from warrants held to be invalid in other cases because oftheir general terms. Id. at 965. See also, UnitedStates v. Falon, 959 F.2d 1143 (1st Cir.1992) (Affirming District court order suppressing defendant's checkbooks,canceled checks, telephone records, address indexes, message slips, mail, telexand facsimile records, calendars and diaries, memory typewriters, word processors,computer discs, both hard and floppy, and other electronic storage media andrelated software, where those items had been insufficiently described withparticularity in warrant.).
Moreover,in this case, the searches did not even limit themselves to those items setforth in the overbroad warrant. Asnoted above, numerous items that were not authorized to be seized by the searchwarrant were, in fact, seized. These items included, but were not limited to: books on witchcraft,stuffed animals belonging to Ms. YYYÕs young children, jewelry, film (bothdeveloped and undeveloped), computers, computer disks, computer equipment,Òvials of colored liquid,Ó cell phones, etc.... The United States Court of Appeals for the FifthCircuit has made it clear that:
Blatantdisregard by executing officers of the language of a search warrant cantransform an otherwise valid search into a general one and, thus, mandatesuppression of all evidence seized during the search. United States v.Rettig, 589 F.2d 418, 423 (9th Cir. 1978); UnitedStates v. Medlin, 842 F.2d 1194, 1199 (10thCir. 1988). The execution of a search warrant "must be one directedin good faith toward the objects specified in the warrant." Gurleskiv. United States,405 F.2d 253, 258(5th Cir. 1968), cert. denied,395 U.S. 981, 89 S. Ct. 2140, 23 L. Ed. 2d 769 (1969).
UnitedStates v. Kimbrough, 69 F.3d 723, 728 (5thCir. 1995), cert. denied, 517U.S. 1157 (1997).
Inshort, if the Court reviews the items seized from Ms. YYYÕs home, it will beclear that the search was simply a free-for-all in which all documents wereseized whether they had anything to do with the case and almost all other itemswere seized, even a childÕs teddy bear, regardless of whether they had anythingto do with the case and regardless of whether they were specified in the searchwarrant. The warrant in this case was totally overbroad and the search thatresulted from it was a general search. Therefore, the items seized from Ms. YYYÕs home must be suppressed.
C. Even Assuming that the Warrant was not Overbroad and thatthe Information Contained in theSearch Warrant Affidavit was not Stale, Items Not Permitted to be Seized Underthe Terms of the Warrant Must be Suppressed.
Evenassuming that the warrant in this case was valid, as explained immediatelyabove, numerous items not specified in the warrant were, nevertheless, seizedin blatant disregard of the terms of the warrant. While Ms. YYY acknowledges that items not provided for in awarrant could be seized if the warrant was valid and it was ÒimmediatelyapparentÓ those items seizedoutside the warrant were evidence of a crime, Ms. YYY submits that none of the items seized from here home that were notprovided for in the warrant were immediately apparent to be evidence of acrime. For example, how could itbe that it was immediately apparent that a stuffed animal was evidence of acrime? Likewise, despite the factthat all of Ms. YYYÕs computers were turned off at the time of the search, allof the computers were seized despite the fact that the warrant did not permittheir seizure. Of course, acomputer in the off position is no more evidence in a murder trial than astuffed animal.
Therefore,even assuming arguendo the warrant wasvalid in this case, all items seized that were not provided for in the warrantand which were not immediately apparent to be evidence in John YYYÕs death,must be suppressed.
III.CONCLUSION
For the foregoing reasons, all of the items seizedfrom the search of Ms. YYYÕs home at 5302 Anchor Road Circle.
Respectfullysubmitted,
F.Clinton Broden
Tx.Bar 24001495
Broden& Mickelsen
2715Guillot
Dallas,Texas 75204
214-720-9552
214-720-9594(facsimile)
Attorneyfor Defendant
ElizabethP. YYY
CERTIFICATE OF SERVICE
I,F. Clinton Broden, certify that on April 20, 2002, I caused the foregoingdocument to be served by first class mail, postage prepaid, on William C.McMurrey, Assistant United States Attorney, 1100 Commerce Street, Third Floor,Dallas, Texas 75242.
_________________________________
F.Clinton Broden