The investigation in Sheppard related to a homicide which occurred on Saturday, May 5, 1979. That day, the officers received information which led them to focus their investigation on Sheppard and, as a result, they sought to obtain a warrant to search Sheppard's house. An affidavit was prepared, but by that time, it was Sunday and the officers had difficulty in locating an appropriate warrant application and form. The warrant they ultimately used was a form warrant which was designed to authorize a search for "controlled substances"; i.e., illegal drugs. Although the officers and the judge who issued the warrant attempted to modify the form warrant, everyone omitted changing that part of the warrant which authorized a search for "controlled substances". The search was conducted pursuant to the warrant and the items found were eventually introduced during Sheppard's trial after which he was found guilty. The trial court and the majority of the justices on the Supreme Judicial Court for Massachusetts found that the warrant was constitutionally defective "because the description in the warrant was completely inaccurate and the warrant did not incorporate the description found in the affidavit." 104 S. Ct. at 3428, n. 5. The state courts found, however, that the officers believed that the warrant authorized the search that they conducted and that there was an objectively reasonable basis for the officers' mistaken belief. 104 S. Ct. at 3428-3429. The Supreme Court affirmed, noting that "a reasonable police officer would have concluded [as did the officers in Sheppard ] that the warrant authorized a search for the material outlined in the affidavit." 104 S. Ct. at 3429.
The instant case is distinguishable from Sheppard for a number of reasons. In Sheppard "the scope of the ensuing search was limited to items listed in the affidavit." In that case the police found a pair of blood stained boots, blood stains on a concrete floor, a blood stained envelope, a pair of men's jockey shorts and women's leotards with blood on them, three types of wire, and a woman's hair piece, subsequently identified as the victim's. 104 S. Ct. at 3428 n. 4. When one reads the affidavit and the description of the items which were the subject of the search, and compares that description with what was actually found and seized by the officers, it is clear that the officers seized only those items described in the affidavit. Although the Sheppard affidavit did not disclose the exact items to be seized, for example, "an earring" or "a blood stained envelope", it did authorize a search for, among other things, "any possessions of Sandra D. Boulware, similar type wire and rope that matched those on the body of Sandra D. Boulware, or in [the defendant's automobile]. . . . A blunt instrument might have been used on the victim, men's or women's clothing that may have blood, gasoline burns on them. Items that may have finger prints of the victim." 104 S. Ct. at 3427. Such language was sufficient to comply with the requirements of the Fourth Amendment. That language was also consistent with what was found at the scene of the crime.
The problem was that the warrant itself did not give a description of the property to be seized and the warrant did not incorporate the descriptions contained in the affidavit. Id.
Here, of course, the facts differ. Neither the warrant nor the affidavit describe the items to be seized other than those six items which were described with particularity. See Parts II and III, supra. Rather, it was left up to the agents and the officers to decide what was evidence demonstrating a violation of 18 U.S.C. §§ 1461 and 1462. Necessarily, they had to decide what was obscene. The lack of particularity in this case allowed the officers to rummage, at will, through the defendant's room as is evidenced by the items seized during the search.
A further distinction is that this case, unlike Sheppard or Leon, involves First Amendment issues. This is not a case where officers were directed to seize specific tangible items such as weapons, or drugs, or gambling paraphernalia. Here they were told to seize material which was obscene. "To tell the officers to seize anything which, in their opinion, [is obscene] is not ' scrupulous exactitude '. Nor does it become such by adding 'of the same tenor' as three named magazines; especially when the sameness is so broadly defined as to include any communicative material, from books to prints to motion pictures." United States v. Guarino, 729 F.2d 864, 867 (1st Cir. 1984) (en banc). In Guarino, there was a dissent, but it seems unlikely that the dissent would have upheld the present warrant because the dissent found that the particularity requirement in that case was satisfied by the magistrate's order which sought to define obscenity for the officers executing the warrant. 729 F.2d at 872 (Breyer, J. dissenting).
Nor can this Court accept the government's oral argument that in conducting the search the officers were concerned that the defendant, a suspected pedophile, was likely to seek to contact children and that therefore this somehow justified the broad language of the warrant and the scope of the search actually conducted. The government, after seizing the material, may have attempted to contact the parents of some of the children named or pictured in the defendant's albums. But, as the Court has observed, those pictures were not suggestive of any illegal activity; rather they were family scenes some of which included the defendant, and some of which included pictures of children taken with their parents. If those albums had not been connected with this defendant, it is extremely doubtful that anyone would have given a second thought to them. The above actions of the officers demonstrates the risk of a general warrant, especially in a First Amendment case. No evidence was presented at the time of the issuance of the warrant, or at the time of the hearing in this case, that suggested that the defendant was attempting to contact children for any illegal activity. The comments of the Court in this regard are not to be taken as an overall criticism of the agents and officers conducting the search; indeed, this Court believes that they were only attempting to conduct a legitimate search because of suspected activities of the defendant and for the protection of any children who may have been involved. But the issue before the Court cannot be based upon the intuition of the agents and officers, but rather, must be based upon the requirements of the Fourth Amendment.
The Supreme Court has not held that all the government must do to override the exclusionary rule is to show that the search was authorized by a warrant signed by a detached and neutral magistrate. If that was the import of the ruling then it would seem that defendants would have lost the right to challenge the sufficiency of a warrant, for under such a ruling, a victory would be academic. Indeed, the Supreme Court has stated that, "depending on the circumstances of a particular case, 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 is valid." Leon, 104 S. Ct. at 3422 (citation omitted, emphasis the Court's). The instant case is such a case.
Here the warrant is so general that the executing officers could not reasonably presume it to be valid. While the officers are not experts in the First and Fourth Amendments, the fact that the warrant and affidavit gave them unfettered discretion to seize anything which in their opinion is evidence of a violation of one or both of the involved federal statutes should have been enough to give them reason to pause. For these reasons, nothing in this case demonstrates that the exclusionary rule should not be applied.
The Court has concluded that the warrant is a general warrant, and further, that there is no basis not to apply the exclusionary rule. The question remains whether the seizure of the six items described with particularity in the warrant can be upheld by severing the general part of the warrant. In other words, may the government now use the materials originally intercepted on March 27, 1984, in its prosecution of the defendant.
It is clear that once the six items were intercepted by the governments agents and determined to be "obscene" by the magistrate, and once delivery was made to the defendant, there was probable cause to issue the search warrant. See Part I, note 3, supra. It is also clear that the six items were described in the warrant with "scrupulous exactitude". Thus, if the offending part of the warrant may be severed, the remaining part is valid.
A number of courts have held severance to be appropriate where a part of the warrant is invalid. See United States v. Fitzgerald, 724 F.2d 633 (8th Cir. 1983), cert. denied, 466 U.S. 950, 104 S. Ct. 2151, 80 L. Ed. 2d 538 (1984); Sovereign News Co. v. United States, 690 F.2d 569 (6th Cir. 1982), cert. denied, 464 U.S. 814, 104 S. Ct. 69, 78 L. Ed. 2d 83 (1983); United States v. Riggs, 690 F.2d 298 (1st Cir. 1982); United States v. Christine, 687 F.2d 749 (3d Cir. 1982); United States v. Freeman, 685 F.2d 942 (5th Cir. 1982); United States v. Torch, 609 F.2d 1088 (4th Cir. 1979). In Freeman, the court observed that "if the police have probable cause to search for Item A but not for Item B, and a warrant is issued for both, it seems unfair to law enforcement officials not to allow A in if the search was otherwise properly conducted." 685 F.2d at 952 (citation omitted).
Moreover, although most of the above cases relate to searches for property other than allegedly "obscene" materials, a search for obscene materials was involved in Sovereign News, Riggs and Torch. In Sovereign News, the magistrate issued a warrant for specifically identified films and magazines said to be obscene, and authorized the seizure of "other magazines of the same kind and nature." The defendant argued that the warrant was impermissibly broad but the court stated that, "we refuse to invalidate the entire warrant as appellant requests. Where the police and the issuing magistrate have listed the titles of the primary targets of the search, we will not invalidate the entire warrant. Rather, we will sever those portions containing the overbroad language and allow the items seized under the proper section to stand as evidence." 690 F.2d at 576 (citations omitted). The court in Riggs reached the same result. It severed the impermissible part of the warrant and upheld that part which described the film to be seized with particularity. 690 F.2d at 300-301. Finally, the court in Torch recognized that the district court had properly severed the invalid part of the warrant and upheld that part of the warrant which described the film to be seized. 609 F.2d at 1089.
The Court of Appeals for this circuit has had occasion to address the issue of severance. See In Re Search Warrant Dated July 4, 1977, 215 U.S. App. D.C. 74, 667 F.2d 117 (1981), cert. denied, sub-nom, Hubbard v. United States, 456 U.S. 926, 102 S. Ct. 1971, 72 L. Ed. 2d 440 (1982); Huffman v. United States, 152 U.S. App. D.C. 238, 470 F.2d 386 (1971). In Huffman, the warrant incorporated the supporting affidavit which described the items to be seized as "Modern Girls" and "Girls", which had been viewed by the judge who issued the warrant, "as well as other magazines of a similar appearance and contents." The court recognized the severability of the seized evidence and upheld the seizure of the items described with particularity. U.S. App. D.C. at 245, n. 7, 470 F.2d at 393, n. 7.
The Court concludes then that it is proper to sever the offending portions of the warrant and uphold so much of the warrant as described the six items with particularity.
In sum, this Court holds that the warrant read in its entirety amounts to a general warrant which is impermissibly broad and in violation of the Fourth Amendment to the Constitution. The Court further holds that there is no basis not to apply the exclusionary rule in this case. Finally, the Court rules that the offending portions of the warrant may be severed and that the search and seizure of the six items described with particularity in the warrant may be upheld.
An appropriate Order has been issued.