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Search Warrants and the Flagrant Disregard Doctrine

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by: Ryan • September 24, 2011 • no comments

Assume the police get a search warrant for the defendant's house. There is probable cause for evidence of X. But in executing the search warrant, the police go way beyond just a search for evidence of X. They seize everything they can get their hands on. Okay, you already know that you may have a good argument for suppressing those items that aren't covered in the warrant. But can you suppress even the evidence of X, for which there was legitimate probable cause, by relying on the Flagrant Disregard Doctrine?

In other words, the execution of a legitimate warrant can turn the warrant, in effect, into a general warrant, at which point everything might get suppressed.

The following is taken from a petition for cert in Srivastava v. USA.

A. The Decision Below Deepens A Conflict Among The Federal Courts Of Appeals And State Courts Of Last Resort Concerning The Validity And Scope Of The "Flagrant Disregard" Doctrine In the operative opinion under review, the Fourth Circuit held that the beliefs of the officers concerning the scope of the warrants were irrelevant for purposes of the application of the "flagrant disregard" doctrine. See App., infra, 57a-58a. The lower courts are in substantial disagreement as to the relevance of officers' subjective views to the analysis, with some courts holding that they are relevant, others holding that they are not, still others taking an agnostic or ambiguous position, and still others refusing to recognize the "flagrant disregard" doctrine at all. All of the federal courts of appeals with jurisdiction over criminal matters, moreover, have now spoken to the issue in some manner. The resulting disarray merits the Court's review. 1. Three circuits-the District of Columbia, Ninth, and Tenth-have explicitly considered officers' state of mind in determining the applicability of the "flagrant disregard" doctrine. See United States v. Heldt, 668 F.2d 1238, 1259 (D.C. Cir. 1981) (per curiam), cert. denied, 456 U.S. 926 (1982); United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978) (Kennedy, J.); United States v. Foster, 100 F.3d 846, 850 (10th Cir. 1996). In Rettig and Heldt-the two seminal cases for the proposition that there are circumstances under which "the entire fruits of the search, and not just those items as to which there was no probable cause to support seizure, must be suppressed," Waller v. Georgia, 467 U.S. 39, 43 n.3 (1984)-the courts framed the standard for blanket suppression in terms of the officers' state of mind. In Rettig, the Ninth Circuit heavily relied on the fact that, while the warrant in question allowed the officers to search for evidence of marijuana dealing, the officers had obtained the warrant only as a pretext to search for evidence of cocaine smuggling. See 589 F.2d at 421-422. After noting "the breadth of the search that took place," id. at 421, and "[the officers'] intent to conduct a search the purposes and dimensions of which are beyond that set forth in the [warrant application]," id. at 423, the court concluded that the warrant, "[a]s interpreted and executed by the agents, * * * became an instrument for conducting a general search." Ibid. And in Heldt- which first referred to the "flagrant disregard" doctrine, 668 F.2d at 1259-the District of Columbia Circuit explained that, while the relevant inquiry focuses on "the reasonableness of [the] search," id. at 1260, "the reasonableness of the execution of a search can be determined from the subjective and objective behavior of the participants during the search." Id. at 1268 (emphasis added). The court concluded that, in that case, there was "no persuasive evidence that the search was merely a subterfuge to examine or seize other evidence not specified in the warrant," ibid., and thus held that blanket suppression was inappropriate, id. at 1269. In its subsequent decision in Foster, the Tenth Circuit tied the standard for blanket suppression even more explicitly to a finding concerning the officers' state of mind. In that case, the court determined, based on testimony from the executing officers, that the officers "viewed the warrant [at issue] as a general warrant and executed the warrant in accord with those views." 100 F.3d at 850. The court upheld the suppression of the evidence at issue, on the ground that "the officers' disregard for the terms of the warrant was a deliberate and flagrant action taken in an effort to uncover evidence of additional wrongdoing." Id. at 851. Notably, the court made clear that the "flagrant disregard" doctrine was applicable not only when officers obtained a warrant in bad faith, but also when they acted in bad faith in executing it. See ibid. At least one state court of last resort has likewise considered officers' state of mind in applying the "flagrant disregard" doctrine. In State v. Valenzuela, 536 A.2d 1252 (1987) (Souter, J.), cert. denied, 485 U.S. 1008 (1988), the New Hampshire Supreme Court noted that the executing officers had "improperly seized and removed voluminous papers for later examination into possible evidentiary value." Id. at 1267. The court nevertheless held that the "flagrant disregard" doctrine was inapplicable, based on the trial court's findings that "the dominant concern of the officers was to find the evidence they were authorized to seize" and that "execution of the warrant was no mere subterfuge for a general search." Ibid.