• Search Warrants and the Definition of Probable Cause
• The Issue of Overbreadth in Search Warrants

Including in an affidavit for a search warrant authorization to search for “any firearm,” where it is known only that one specific firearm is in a felon’s residence, is not overbroad.

A person unrelated to this appeal got into a violent domestic dispute with his live-in girlfriend (referred to herein only as “the girlfriend”), threatening her with a firearm and then pistol-whipping her with it across the face.  Although he got busted as a result, the girlfriend apparently forgave all because she later talked to him while he was in jail in a conversation that was overhead by police.  In this conversation, he told her to take the gun he’d hit her with from their residence and give it to defendant.  When the police confronted her about this, she admitted to having dutifully done as she had been instructed, describing the particular firearm in some detail (i.e., a “large silver & gold revolver” of an unknown caliber).  It was quickly determined that defendant was a convicted felon and could not legally possess a firearm.  So a search warrant was obtained for his home, receiving permission from the magistrate to search for the specific revolver in question.  Additionally, however, the warrant also authorized officers to search for “any firearm,” plus various other firearm-related items (what “items” not being described in the case decision).  Executing the warrant, the officers found not only the revolver as described by the girlfriend, but three other firearms as well (which, as a matter of interest to some, but unrelated to the issues described in the brief, included an AK-style .545 by 39mm caliber fully automatic machine gun rifle, later determined to have been stolen from an army base).  Defendant was charged in federal court with being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).  After his motion to suppress the firearms was denied, he pled guilty and was sentenced to 7½ years in prison.  Defendant appealed.

The Ninth Circuit Court of Appeal affirmed.  The primary issue on appeal was the validity of the search warrant, with defendant arguing that as written, the warrant was unconstitutionally “overbroad.”  Of particular concern was the search warrant magistrate’s authorization for officers to search for and seize “any firearm,” when the only evidence of a firearm being in defendant’s home was the girlfriend’s statements to police about the one, specifically described firearm that she gave to defendant.  The Court held here that under the facts of this case, however, the magistrate’s authorization to search for and seize “any firearm” was not overbroad.  The Court first noted some Fourth Amendment fundamental principles, applicable to search warrants.  First, and probably most obvious, is that “(a) warrant must be supported by probable cause.”  “Probable cause” requires only that there be a “fair-probability that contraband or evidence of a crime will be found in a particular place based upon the totality of the circumstances.”  (Illinois v. Gates (1983) 462 U.S. 213.)  This, in turn, requires only that there be “circumstances which warrant suspicion,” (Locke v. United States (1813) 11 U.S. 339, 348.), further noting that probable cause “requires ‘less . . . evidence [than that] which would justify condemnation, and may rest upon evidence which is not legally competent in a criminal trial.’” (United States v. Bridges (9th Cir. 2003) 344 F.3rd 1010, 1014-1015.)  Secondly, a search warrant must not be overbroad.  “The scope of a warrant must be limited by its probable cause.”  (United States v. SDI Future Health, Inc. (9th Cir. 2009) 568 F.3rd 684, 702.)  It must never include in its authorization to search for more than is justified by that probable cause. (United States v. Whitney (9th Cir. 1980) 633 F.2nd 902, 907.)  Applying these principles to the warrant’s authorization to search for “any firearm,” the Court found that the warrant in this case was not overbroad, and thus did not violate the Fourth Amendment.  In so finding, the Court noted the following significant factors:  Defendant was known to have a felony record, with the officer describing the nature of those felonies.  It was also known that he took possession of a specifically described revolver from the girlfriend.  In his affidavit, the investigating officer explained how and why he suspected that other weapons might be present in defendant’s residence, specifically noting how “other ‘individuals [may] arrive at the scene of [the] search’ and that, in his experience (after detailing in the affidavit his “training and experience”), ‘many of these individuals are found to be in possession of weapons.’”  More importantly, the officer explained that, as a felon, any firearm found in defendant’s possession would constitute evidence of a felon-in-possession offense; a crime it was already known that he was committing by accepting the one revolver from the girlfriend.  The Court held that based upon this, the magistrate was not incorrect in determining that there was, at the very least, a “fair probability” that other firearms might be found in defendant’s home and that if so, they would constitute evidence of a crime.  Knowing that defendant accepted and hid a revolver from law enforcement in his home, in the Court’s opinion, “raised the fair inference that (he) possessed other firearms.”  “After all, the (domestic violence) suspect wouldn’t have entrusted the revolver to (defendant) if the suspect didn’t believe (defendant) was willing and able to covertly store firearms. That (defendant) seemingly served as a ‘safe deposit box’ for the (domestic violence) suspect’s firearm made it likely that (defendant) did the same for other firearms.”  Based upon these assumptions, the Court found that the warrant was not overbroad when it authorized the searching officers to look for and seize “any firearm” that might be in defendant’s house.  As a backup justification, the Court further held that the searching officers relied upon the validity of the warrant in good faith, having no reason to believe there might be an overbreadth issue.  As such, the Court found no Fourth Amendment violation.

In reading this case, I found the Court’s justifications for upholding the warrant to be a bit strained.  I mean, really:  The likelihood that other armed persons might show up during the execution of a search warrant, with police officers all over the place   How likely is that really   But I don’t disagree with the result.  Had I been the author of this opinion, I might have simply concluded that where there’s probable cause to believe a felon knowingly possesses at least one firearm in his house, there’s at least a fair probably that he might have more.  Period.  End of issue.  The affiant to a search warrant should certainly venture an opinion in a case like this that based upon his training and experience, under the circumstances of this case, he believes that other firearms might be found in the house; i.e., that known felons who possess a firearm in their homes often have more than one.  But that is all it should really take.  Including other firearms in a warrant affidavit in a case like this seems to me to be a non-issue.  But at least now we have a case decision that says just that.