United States v. James Cobb

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 17, 2020
• Docket: 19-4172
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4172

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES TIMOTHY COBB,

Defendant - Appellant.

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AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF WEST VIRGINIA,

Amici Supporting Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Senior District Judge. (1:18-cr-00033-IMK-MJA-1)

Submitted: June 1, 2020 Decided: August 11, 2020 Amended: August 17, 2020

Before WILKINSON and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Traxler wrote the opinion, in which Judge Wilkinson joined. Judge Floyd wrote a dissenting opinion. L. Richard Walker, Senior Litigator, Clarksburg, West Virginia, Kristen Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell, United States Attorney, Sarah E. Wagner, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. Nathan Freed Wessler, Brett Max Kaufman, Ezekiel Edwards, Jason D. Williamson, New York, New York, Jennifer Granick, ACLU FOUNDATION, San Francisco, California; Loree Stark, ACLU OF WEST VIRGINIA FOUNDATION, Charleston, West Virginia, for Amici American Civil Liberties Union and American Civil Liberties Union of West Virginia

2 TRAXLER, Senior Circuit Judge:

Defendant James Timothy Cobb (“Cobb”) entered a conditional guilty plea to

possession of child pornography. He appeals the district court’s denial of his motion to

suppress the images that were seized from his computer pursuant to a search warrant issued

by a state magistrate judge. For the following reasons, we affirm.

I.

On September 7, 2014, Cobb, who was 57 years old at the time, was living with his

parents, James and Freda Cobb, and his cousin, Paul Dean Wilson, in Marion County, West

Virginia. A fight broke out that evening between Cobb and Wilson. Cobb put Wilson in

a chokehold and put his knee in Wilson’s chest. The fight was witnessed by Cobb’s

parents, who called 911 for assistance. Wilson was unresponsive when police arrived, and

he was pronounced dead at the scene by emergency medical personnel. Cobb was arrested

and jailed that evening, charged with the second-degree murder of Wilson.

Unbeknownst to Cobb’s parents, the phone line remained open after the 911 calls

were placed. The parents were recorded begging Cobb to stop, and telling Cobb that

Wilson was “helpless,” and he was “going to end up killing the man.” J.A. 54. During

questioning later by law enforcement, Cobb’s parents gave varying accounts of the events

leading up to the murder. Cobb’s father said the fight started over Wilson’s firearm. The

father also said that Wilson threatened him and his son stepped in to protect him. The

mother, on the other hand, told the officers that Wilson punched her in the mouth because

she yelled at him for being mean to his cat, and that her son was protecting her. In a

recorded jail call on September 8, Cobb and his parents discussed the various versions of

3 the events. During the call, the mother told Cobb that she put cotton in her lip and took a

picture, on the advice of a neighbor, to support her version.

On September 9, 2014, less than 48 hours after the murder, Cobb was recorded in

another jail call telling his father to remove a laptop computer from the bed in Cobb’s room

and to “put it in his father’s room ‘to keep it safe.’” J.A. 163. Cobb told his father that

“Wilson had previously used the computer and put some ‘shit’ on it,” and Cobb requested

that his father “‘wipe down’ or ‘clean’ the computer.” J.A. 163. Cobb also told his parents

to get his cell phone from the jail.

After consulting with the state prosecutor, the investigating officers obtained a

search warrant to search Cobb’s residence for “[a]ny and all firearms belonging to Paul

Dean Wilson Jr., any and all laptop computers, including tablets or desktop computers

belonging to or operated by James Timothy Cobb, any and all cell phones belonging to or

operated by James Timothy Cobb, and any and all evidence of a crime.” J.A. 36. The

probable cause statement reads as follows:

On 09/07/14, at approx. 2355 hrs [d]eputies responded to an altercation at [Cobb’s home]. Once on scene deputies advised that a male subject was unresponsive and started CPR. Once the undersigned arrived on scene the male subject, identified as Paul Dean Wilson Jr., was pronounced dead by EMTs. The undersigned then spoke with witnesses in the residence, James K. Cobb and Freda Cobb, who advised a physical altercation had taken place between James Timothy Cobb and his cousin Paul Dean Wilson Jr. During the altercation between James T. Cobb and Wilson, James T. Cobb placed Wilson in a choke hold and placed his knee on his chest and pulled his head towards his knee. . . . When deputies arrived on scene James T. Cobb still had Wilson restrained and Wilson was unresponsive. On 09/09/14 statements were made by James Timothy Cobb requesting his parents, James Keith Cobb and Freda Cobb, have a subject clean off his laptop and pick up his cellular telephone from the jail. Also upon speaking with James K. Cobb he advised that Paul Dean Wilson Jr. had possession of a hand gun he called

4 a “Beretta” and started the altercation over the firearm not being where Mr. Wilson left the gun. The above events occurred in Marion Co. WV.

J.A. 36, 38. The investigating officers executed the warrant and seized, among other

things, three firearms and a Gateway laptop computer believed to be the computer that

Cobb referred to in the phone call with his father.

On September 23, 2014, the officers obtained a second warrant to search the internal

contents of the Gateway laptop computer for evidence of the murder. The probable cause

statement included in this warrant reads as follows:

On September 7, 2014[,] the Marion County Sheriff’s Dept. responded to a domestic altercation between James Timothy Cobb and Paul Dean Wilson Jr. who are cousins both living with Cobb’s parents at [their residence] in Marion Co. Wilson was pronounced dead at the scene. Cobb was arrested and charged with second degree murder. After new evidence was discovered the second degree murder charge was dismissed and Cobb was [c]harged with first degree murder. . . . During the investigation Cobb’s phone calls from the jail have been monitored. During one conversation Cobb was heard to tell his father to get the computer out of his room and put it in his father’s room. He said there are some things on there that need to be cleaned up before anyone sees them. On at least two other occasions he made reference to his parents about never letting anyone borrow your electronic equipment. On September 16, 2014[,] the Marion County Sheriff’s Dept. served a warrant on Cobb’s residence . . . and seized the Gateway laptop computer reference[d] by James Timothy Cobb.

J.A. 40, 42. The warrant authorized the search of the Gateway laptop computer in evidence

for:

Any material associated with the homicide of Paul Dean Wilson Jr. stored internally on a Gateway laptop computer serial # NXY1UAA0032251C66F1601 dark gray in color belonging to or used by James Timothy Cobb. Any and all other evidence of any other crimes.

J.A. 40.

5 When the executing officer began to open the computer files, he quickly discovered

pornographic photos of underage females in various stages of undress and engaged in

sexual acts. The officer immediately stopped the search, again consulted with the state

prosecutor who concurred that the pornographic images were of prepubescent females, and

sent the computer to the West Virginia State Police Digital Forensic Lab. In a follow-up

interview with Cobb’s parents, “[n]either one of them seemed shocked that there [were]

pornographic images of underage females on their son’s computer,” and “[t]hey both

immediately blamed [Wilson] for the images being on there.” J.A. 68. 1

As noted above, Cobb was initially charged with second-degree murder, but the

charges were upgraded to first-degree murder due, in part, to the 911 calls and the

inconsistent stories relayed to the officers by Cobb’s parents. The officers later suspected

that the child pornography was the motive for the murder. Months later, Cobb’s cellmate

told investigators that Cobb had admitted to killing Wilson because Wilson had discovered

the child pornography on Cobb’s computer and had threatened to turn him in to the

authorities. Cobb ultimately pled guilty to second-degree murder and was sentenced to 20

years’ imprisonment in state prison.

1 According to the government, “Cobb’s browsing history showed that his computer was used on at least 13 days in the month leading up to Mr. Wilson’s death to search for and access child pornography, including every day of the seven days immediately preceding Mr. Wilson’s death. On the dates and times that the child pornography found on Mr. Cobb’s computer was downloaded, Mr. Cobb was logged in under his name and/or his known aliases on Facebook and Yahoo from the same IP address.” J.A. 200-01 (footnote omitted). Cobb does not challenge these assertions on appeal. 6 On May 1, 2018, a federal grand jury indicted Cobb for possession of child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Cobb moved to

suppress the child pornography found on the computer during the murder investigation.

He argued that the warrants were unsupported by probable cause as required by the Fourth

Amendment to the United States Constitution. In a supplemental pleading, Cobb asserted

that the second warrant was also invalid under the Fourth Amendment because it lacked

the requisite particularity.

The federal magistrate judge recommended that the district court grant in part and

deny in part the motion to suppress. He concluded that both warrants were supported by

probable cause to believe that evidence of the murder was contained on the computer, and

that the first search warrant was sufficiently particular to satisfy the Fourth Amendment.

With regard to the second search warrant, he concluded that the constitutional sufficiency

of the warrant was not affected by the superfluous “any and all evidence of any other crime”

phrase contained at the end of the warrant, but that the motion to suppress should be granted

because the balance of the second warrant was insufficiently particular to satisfy the Fourth

Amendment. The magistrate judge also recommended that the district court reject the

government’s request that the court apply the good-faith exception to the exclusionary rule,

recognized by the Supreme Court in United States v. Leon, 468 U.S. 897 (1984). The

government filed objections to the magistrate judge’s conclusions that the second warrant

was not sufficiently particular and that the good-faith exception was inapplicable. Cobb

responded, but filed no objections to the magistrate judge’s other recommendations.

7 The district court adopted in part and rejected in part the magistrate judge’s

recommendation and denied the motion to suppress. The court adopted the magistrate

judge’s conclusions that both warrants were supported by probable cause to believe that

evidence of Wilson’s murder would be found on the computer, and that “the constitutional

sufficiency of both warrants was not affected by the superfluous language each contained,”

J.A. 239. Neither conclusion had been objected to by Cobb.

However, the district court rejected the magistrate judge’s recommendation that the

balance of the second warrant be found lacking in the requisite particularity. The warrant

was sufficiently particular under our precedent, the district court reasoned, because it

identified the specific illegal activity under investigation—the murder of Wilson on

September 7, 2014. Relying on our precedent in United States v. Williams, 592 F.3d 511

(4th Cir. 2010), the district court also held that the child pornography was admissible under

the plain-view exception to the warrant requirement. In the alternative, the district court

held that the child pornography was admissible under Leon’s good-faith exception to the

suppression rule.

Cobb thereafter entered a conditional plea of guilty to the child pornography charge,

reserving the right to appeal the district court’s ruling on the motion to suppress. He was

sentenced to 110 months in prison, to be served concurrent with the remainder of his 20-

year state sentence for second-degree murder, followed by a 10-year term of supervised

release.

II.

8 The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the persons or things

to be seized.” U.S. Const. amend. IV. Probable cause exists when, “given all the

circumstances set forth in the affidavit . . . , there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213,

238-39 (1983). “Unlike the probable cause requirement, which concerns the showing made

by an officer seeking a search warrant, the particularity requirement is focused as well on

the officer executing a warrant, and ensures that the search ‘will be carefully tailored to its

justifications’ rather than becoming a ‘wide ranging exploratory search[]’ of the kind the

‘Framers intended to prohibit.’” United States v. Blakeney, 979 F.3d 851, 861 (4th Cir.

2020) (quoting Maryland v. Garrison, 480 U.S. 79, 84 (1987)).

On appeal, Cobb does not challenge the district court’s determination that both

warrants were supported by probable cause to believe that evidence pertinent to the murder

of Wilson would be found on Cobb’s computer. Nor does Cobb contend that the first

warrant was insufficiently particular. Rather, he limits his challenge to a claim that the

second warrant was not sufficiently particular because it was not “tailored to the facts

presented to the police about the homicide,” and failed to explain “the types of files sought,

the location of the files, the timeframe or the relationship between the files and information

about the homicide.” Brief of Appellant at 11. When reviewing a district court’s denial of

a motion to suppress, “we review the district court’s legal conclusions de novo and its

9 factual findings for clear error.” United States v. Phillips, 588 F.3d 218, 223 (4th Cir.

2009).

A.

It is well-settled that the Fourth Amendment “does not set forth some general

‘particularity requirement.’” United States v. Grubbs, 547 U.S. 90, 97 (2006). So long as

there is probable cause to believe that “contraband or evidence of a crime will be found in

a particular place,” Gates, 462 U.S. at 238, the Fourth Amendment “specifies only two

matters that must be ‘particularly described’ in the warrant: ‘the place to be searched’ and

‘the persons or things to be seized.’” Grubbs, 547 U.S. at 97 (alteration omitted); see also

Blakeney, 949 F.3d at 862.

“As always, ‘the ultimate touchstone of the Fourth Amendment is reasonableness.’”

United States v. Lyles, 910 F.3d 787, 791 (4th Cir. 2018) (quoting Fernandez v. California,

571 U.S. 292, 298 (2014)). “When it comes to particularity, we construe search warrants

in a ‘commonsense and realistic’ manner, avoiding a ‘hypertechnical’ reading of their

terms.” Blakeney, 949 F.3d at 862 (quoting Williams, 592 F.3d at 519). “[T]he test for the

necessary particularity is a pragmatic one: The degree of specificity required when

describing the goods to be seized may necessarily vary according to the circumstances and

type of items involved. There is a practical margin of flexibility permitted by the

constitutional requirement for particularity in the description of items to be seized.” United

States v. Jacob, 657 F.2d 49, 52 (4th Cir. 1981) (internal quotation marks and alterations

omitted).

10 The circumstances that lead us to affirm the district court’s decision in this case are

straightforward. The officers had probable cause to believe that the computer seized during

the search of Cobb’s home contained evidence pertaining to Wilson’s murder—largely

because Cobb, within 48 hours of the murder, instructed his parents to remove the computer

from his room and clean it because Wilson had recently used it. The warrant set forth the

justification for the search of the computer in some detail. In addition to setting forth facts

pertaining to the murder of Wilson by Cobb, and the charges that were brought both

initially and as upgraded, the warrant also referenced “Cobb’s phone calls from the jail” to

his parents. J.A. 42.

During one conversation Cobb was heard to tell his father to get the computer out of his room and put it in his father’s room. He said there are some things on there that need to be cleaned up before anyone sees them. On at least two other occasions he made reference to his parents about never letting anyone borrow your electronic equipment.

J.A. 42 (emphasis added).

Clearly, these facts and circumstances amply provided probable cause to believe

that evidence pertinent to Wilson’s murder was located on the computer and that Cobb was

seeking to destroy it—a point no longer in dispute. The challenged warrant, in turn,

specified as much as it reasonably could have: (1) the place to be searched—the internal

contents of the “Gateway laptop computer . . . belonging to or used by James Timothy

Cobb,” identified by a physical description and serial number as the one seized pursuant to

the first search warrant; and (2) the things to be seized—the “material associated with the

homicide of Paul Dean Wilson Jr.,” which occurred during the “domestic altercation” at

their shared home on September 7, 2014. J.A. 40.

11 1.

We have long recognized that “[a] warrant need not—and in most cases, cannot—

scrupulously list and delineate each and every item to be seized. Frequently, it is simply

impossible for law enforcement officers to know in advance exactly what . . . records the

defendant maintains or how the case against him will unfold.” Phillips, 588 F.3d at 225;

cf. United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988) (“[W]e do not read the

search warrant as a constitutional strait jacket: that only those items particularly described

in a warrant may be seized without regard to the facts and circumstances of the particular

case.”) (internal quotation marks omitted).

Accordingly, “where a warrant does not otherwise describe the evidence to be

seized, that gap can be filled, at least sometimes, if the warrant instead specifies the relevant

offense.” Blakeney, 949 F.3d at 862-63; see also United States v. Dickerson, 166 F.3d 667,

693-94 (4th Cir. 1999) (upholding warrant authorizing officers to seize “[e]vidence of the

crime of bank robbery”), rev’d on other grounds, Dickerson v. United States, 530 U.S. 428

(2000); United States v. Jones, 31 F.3d 1304, 1313 (4th Cir. 1994) (upholding

constitutionality of warrant that “confine[d] the executing inspectors’ discretion by

allowing them to seize only evidence of a particular crime”); United States v. Fawole, 785

F.2d 1141, 1144 (4th Cir. 1986) (warrant authorizing the broad seizure of “address books,

diaries, business records, documents, receipts” was sufficiently particular because it

allowed the officers “to seize only evidence of a particular crime”); United States v. Ladd,

704 F.2d 134, 136 (4th Cir. 1983) (upholding constitutionality of warrant that limited the

officers’ seizure to “items . . . relating to ‘the smuggling, packing, distribution and use of

12 controlled substances”). 2 We hold that the district court correctly concluded that the search

warrant challenged in this case was sufficiently particular because it too confined the

executing officers’ discretion by allowing them to search the computer and seize evidence

of a specific illegal activity—Wilson’s murder on September 7, 2014.

2.

Like the district court, we also reject Cobb’s claim that, in addition to specifying the

crime under investigation, the warrant should have also described the “types of files sought,

the location of the files, the timeframe [and] the relationship between the files and

information” that the police had about Wilson’s murder. Brief of Appellant at 11. Cobb

does not explain, in any meaningful way, exactly how the warrant could have specified the

files that contained the evidence of murder. But even if it were true that the warrant could

have been more specific, the Fourth Amendment simply did not demand that the warrant

be more specific in this case.

The Supreme Court has “previously rejected efforts to expand the scope of [the

particularity] provision to embrace unenumerated matters.” Grubbs, 547 U.S. at 97; see

id. at 97-99 (rejecting challenge to the particularity of an anticipatory warrant because the

warrant did not include the conditions precedent to execution of the warrant); see also

Dalia v. United States, 441 U.S. 238, 257 (1979) (“Nothing in the language of the

2 In like vein, a warrant need not “always . . . specify the crime for which the executing officers may seek evidence” United States v. Blakeney, 949 F.3d 851, 862 (4th Cir. 2020) (emphasis added). “Particularity with respect to the criminal activity suspected is [also] not on that list” of things that the Fourth Amendment demands. Id.

13 Constitution or in this Court’s decisions interpreting that language suggests that . . . search

warrants also must include a specification of the precise manner in which they are to be

executed.”). And, to the extent any question remained, this circuit recently made clear that

“a warrant may satisfy the particularity requirement either by identifying the items to be

seized by reference to a suspected criminal offense or by describing them in a manner that

allows an executing officer to know precisely what he has been authorized to search for

and seize.” Blakeney, 949 F.3d at 863. The warrant need not satisfy both criteria. See id.

To the extent Cobb’s challenge speaks more to the requisite specificity as to the

“place” to be searched when the “place” is a computer, it also fails. In United States v.

Williams, we addressed a similar challenge to a warrant that authorized the search of a

defendant’s computer for evidence of specific crimes, during which the officers

inadvertently discovered images of child pornography. In addressing the application of the

plain view exception to the warrant requirement, we held that, so long as the Fourth

Amendment’s basic requirements of probable cause and particularity are met, the executing

officers are “impliedly authorized . . . to open each file on the computer and view its

contents, at least cursorily, to determine whether the file [falls] within the scope of the

warrant’s authorization—i.e., whether it relate[s] to the designated . . . crimes.” Williams,

592 F.3d at 521-22. 3

3 Cobb’s argument that Williams does not apply because the ruling was based on the fact that the crimes being investigated were computer-based crimes does not avail him. Although the Williams court did hold that the child pornography seized was within the scope of the warrant, the court also held, in the alternative, that the evidence was admissible under the plain view doctrine because the officers were implicitly authorized to open, at (Continued) 14 Here, the warrant authorized a search of the specific computer that Cobb had asked

his parents to retrieve from his bedroom, keep safe in their room, and “clean” because

Cobb’s victim had recently used it. It is true that the officers suspected the computer might

contain evidence explaining why Cobb killed Wilson, and whether he planned to murder

him, by suffocation or by other means. And it is arguable that the evidence of child

pornography was the evidence of motive that Cobb sought to wipe from the computer. But,

as the district court correctly observed, the officers had no way of knowing when they

applied for the warrant exactly what the evidence was that Cobb sought to destroy, or where

Cobb had placed the evidence on the computer. The officers had probable cause to believe

that Cobb’s computer contained evidence pertinent to Cobb’s murder of Wilson on

September 7, 2014, and that Cobb’s parents were willing to lie, destroy evidence, and

manufacture evidence to support the narrative that Cobb’s murder of Wilson was defensive

in nature. Accordingly, more specificity was not required under the Fourth Amendment,

nor was limiting the scope of the computer search practical or prudent under the

circumstances of this investigation.

In sum, even if the Fourth Amendment might require more specificity as to the place

to be searched or the items to be seized in some computer searches, Cobb has failed to

convince us that the Fourth Amendment demanded that the descriptions of the place to be

searched and the things to be seized needed to be more specific in this case. At bottom, his

argument boils down to the claim that, even though probable cause existed to believe that

least briefly, the computer files to locate the evidence of the specific crime referenced in the warrant. 15 incriminating evidence pertaining to the murder of Wilson was located on that computer,

and that Cobb was seeking to destroy it, the police could not search the computer because

the police could not foretell the murder evidence that was located on the computer or the

location of that evidence within the contents of the computer. That is not what the Fourth

Amendment demands.

B.

We also affirm the district court’s ruling that the constitutionality of the warrant was

unaffected by the superfluous language included at the end of the warrant. Although we

agree that the phrase “[a]ny and all evidence of any other crimes,” standing alone, is

overbroad, it did not render the entire warrant invalid.

Under the severance doctrine, “the constitutionally infirm portion” of a warrant—

“usually for lack of particularity or probable cause—is separated from the remainder and

evidence seized pursuant to that portion is suppressed; evidence seized under the valid

portion may be admitted.” United States v. George, 975 F.2d 72, 79 (2d Cir. 1992). “This

notion that a search conducted pursuant to a warrant held unconstitutional in part does not

invalidate the entire search is signaled in cases stating that only those items seized beyond

the warrant’s scope must be suppressed.” Id. “[T]he social gains of deterring

unconstitutional police conduct by suppressing all evidence seized pursuant to a partially

invalid warrant often are outweighed by the social costs occasioned by such an across the

board ruling.” Id.; see also United States v. Sells, 463 F.3d 1148, 1154-55 (10th Cir. 2006)

(“In accordance with the purposes underlying the warrant requirement and the exclusionary

rule, every federal court to consider the issue has adopted the doctrine of severance,

16 whereby valid portions of a warrant are severed from the invalid portions and only material

seized under the authority of the valid portions, or lawfully seized while executing the valid

portions, are admissible.”) (footnotes omitted).

Although this court has not yet referred to the “severance doctrine” by name in a

published opinion, we have applied it in similar circumstances. In United States v. Jacob,

we agreed that “the general tail of [a] search warrant,” which seemingly authorized a search

for violations of any federal criminal law, did not defeat the otherwise sufficiently-

particular portion of the warrant. Jacob, 657 F.2d at 51-52. “[C]onsistent with the standard

of our circuit which seeks to avoid the suppression of evidence seized pursuant to a warrant

because of ‘hypertechnical’ errors,” we held that “a defective qualifying phrase will not

defeat a warrant which is otherwise sufficiently specific.” Id. at 52. Rather, “the

challenged phrase should properly be treated as merely superfluous and falls within the

‘practical margin of flexibility’ afforded warrants in cases of this type.” Id.

Since then, at least two panels of this court have recognized this severance doctrine

in unpublished cases. In United States v. Prince, for example, we declined to invalidate a

warrant which contained “broad boilerplate language authorizing seizure of every

conceivable item without tying these items to the alleged crimes or circumstances of the

case.” 187 F.3d 632, 1999 WL 511003, at *6 (4th Cir. 1999).

We have held that, in order to avoid the suppression of lawfully seized evidence, a warrant that properly identifies some items “will not be defeated by other ambiguous or conclusionary language” so long as the warrant was “sufficiently particularized with respect to the items seized.” United States v. Jacob, 657 F.2d 49, 52 (4th Cir. 1981). In other words a court will “sever” the too general portion of the warrant from the sufficiently specific portion. See United States v. George, 975 72, 79 (2d Cir. 1992).

17 Id. In such cases, “[t]he evidence obtained pursuant to the lawful portion of the warrant

[is] rightly admitted [and] the remainder of the warrant, while too broad, provides no basis

for reversal.” Id. at *7.

And in United States v. Walker, 403 F. Appx. 803, 805-06 (4th Cir. 2010), we held

that, although the warrant at issue improperly authorized the seizure of items (controlled

substances) that was not supported by probable cause, the offending phrase would be

redacted and the balance of the warrant upheld.

[A]bsent a showing of pretext or bad faith on the part of the police or the Government, the invalidity of part of a search warrant does not require the suppression of all the evidence seized during its execution. See United States v. Fitzgerald, 724 F.2d 633, 636-37 (8th Cir. 1983). Thus, even if the portion of the warrant permitting seizure of [controlled substances] is invalid, the Fourth Amendment does not require the suppression of anything described in the valid portions of the warrant or “lawfully seized [] on plain-view grounds, for example—during their execution.” Id. at 637; see also United States v. George, 975 F.2d 72, 79 (2d Cir. 1992) (holding that, where warrant as a whole is not invalid, a redacted warrant may justify a police intrusion, permitting admission of items found in plain view).

Id. at 806.

We agree with these applications of the severance doctrine, and hold that the

challenged phrase “[a]ny and all evidence of any other crimes” in the warrant before us,

while overbroad in isolation, was easily and properly severed from the balance of the

warrant which, as we have explained, was sufficiently particularized. Rather than

invalidate the entire warrant and require suppression of the evidence of child pornography

found in plain view on the computer, “the challenged phrase [was] properly . . . treated as

merely superfluous and falls within the ‘practical margin of flexibility’ afforded warrants

in cases of this type.” Jacob, 657 F.2d at 52.

18 Perhaps because this point is so well established, we also note that Cobb failed to

properly preserve appellate review of it. The magistrate judge noted in his report and

recommendation our holdings that such “generalizing” or “catch-all” phrases will not

ordinarily invalidate an otherwise sufficiently particular warrant, J.A. 186, and ruled only

that the first part of the warrant was not sufficiently particular. And because “[n]either

party objected to [the magistrate judge’s] conclusion that the constitutionality of [the]

warrants was unaffected by the superfluous language included in [them],” the district court

adopted the finding and ruled accordingly. J.A. 250. Cobb, therefore, failed to preserve

appellate review of the substance of the magistrate judge’s recommendation. See Martin

v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (“A plaintiff is deemed to have waived an

objection to a magistrate judge’s report if he does not present his claims to the district

court.”) (internal quotation marks and alterations omitted). Moreover, although Cobb

obliquely asserts in his opening brief that the catch-all phrase in the second warrant made

the first part of the warrant “worse,” Appellant’s Brief at 11-12, he did not directly

challenge the district court’s ruling on the effect of the superfluous language, nor did he

brief the issue in his opening brief to this court. See Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993) (“As this court has repeatedly held, issues raised for the first time on appeal

generally will not be considered.”); see also Cavallo v. Star Enter., 100 F.3d 1150, 1152

n.2 (4th Cir. 1996) (“[A]n issue first argued in a reply brief is not properly before a court

of appeals.”).

C.

19 We also affirm the district court’s application of the plain view doctrine to the

evidence of child pornography. “Once it is accepted that a computer search must, by

implication, authorize at least a cursory review of each file on the computer, then the

criteria for applying the plain-view exception are readily satisfied.” Williams, 592 F.3d at

522. The officer “has a lawful right of access to all files, albeit only momentary,” and

“when the officer then comes upon child pornography, it becomes immediately apparent

that its possession by the computer’s owner is illegal and incriminating.” Id. (internal

quotation marks and citations omitted).

Cobb’s sole challenge to the district court’s application of the plain view exception

is based upon his argument that the warrant was not sufficiently particular and, therefore,

that the officers could not have been lawfully present at the place where the child

pornography was plainly viewed. In light of our ruling on the particularity of the warrant,

we affirm the district court’s determination that the child pornography was admissible

under the plain view doctrine.

D.

Finally, we reject Cobb’s belated request, supported by the ACLU’s amicus brief,

that we not follow our prior holding in United States v. Williams, and hold instead that

ordinary principles of Fourth Amendment jurisprudence, including the plain view doctrine,

should not apply to computer searches. In Williams, we rejected the defendant’s nearly

identical claim that “traditional Fourth Amendment rules cannot be successfully applied in

th[e] context” of computer searches because computers “hold so much information,

touching on virtually every aspect of a person’s life,” and that “a new approach is needed

20 for applying the Fourth Amendment to searches of computers and digital media.” 592 F.3d

at 517.

Even if Cobb had raised such a direct challenge below or in his opening brief, we

are powerless to overrule the decision of a prior panel of this court. See McMellon v. United

States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc) (explaining the “basic principle that

one panel cannot overrule a decision issued by another panel”). Nor would we reject

Williams’ application to the warrant in this case. As we have explained above, “[n]othing

in the language of the Constitution or in [the Supreme] Court’s decisions interpreting that

language suggests that, in addition to the requirements set forth in the text, search warrants

also must include a specification of the precise manner in which they are to be executed.”

Dalia, 441 U.S. at 257. “On the contrary, it is generally left to the discretion of the

executing officers to determine the details of how best to proceed with the performance of

a search warrant—subject of course to the general Fourth Amendment protection ‘against

unreasonable searches and seizures.’” Id. (footnote omitted, emphasis added); see also

Dickerson, 166 F.3d at 694 (“[T]he law of this Circuit . . . allow[s] some discretion to the

officers executing a search warrant, so long as the warrant at least minimally ‘confines the

executing officers’ discretion by allowing them to seize only evidence of a particular

crime.’” (quoting Fawole, 785 F.2d at 1144)). Reasonableness in the description of the

place to be searched and the things to be seized is all that the Fourth Amendment demands,

21 and the warrant to search this computer, based upon the circumstances and the type of

evidence sought in this case, was sufficiently particular in both respects. 4

III.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED

4 In light of our holding, we need not address the district court’s alternative ruling that the Leon good faith exception applies. See United States v. Leon, 468 U.S. 897 (1984).

22 FLOYD, Circuit Judge, dissenting:

I disagree with my colleagues in the majority as to the constitutionality of the search

warrant that authorized the search of the laptop. For the reasons explained herein, I would

hold that the search warrant was unconstitutional for lack of particularity as to the items to

be seized, that the government cannot rely on the plain-view exception for the seizure of

the child pornography found on the laptop, and that the good-faith exception to the

exclusionary rule does not apply. As a result, I would hold that the district court erred and

that the child pornography should be suppressed.

In September 2014, James Cobb was living with his parents, James Keith Cobb

(Cobb Sr.) and Freda Cobb (Ms. Cobb), near Fairmont, West Virginia. Cobb’s cousin,

Paul Dean Wilson, also lived at the home.

On September 7, 2014, a feud occurred between Cobb and Wilson. By the end of

this family feud, Cobb had suffocated Wilson to death. During a 911 call made at the time

of the altercation, Ms. Cobb was heard telling her son: “he’s helpless” and “you[’re] going

to end up killing the man.” J.A. 54. Cobb was subsequently charged with second-degree

murder. 1

1 The charge was later upgraded to first-degree murder. However, as discussed below, Cobb eventually pleaded guilty to second-degree murder.

23 In the course of the murder investigation, three conflicting stories emerged as to

what started the altercation between Cobb and Wilson. Cobb told investigators that the

fight started because Wilson’s firearm was not in the place where he had left it. However,

Cobb’s parents gave different accounts. Cobb Sr. told investigators that the fight started

because Wilson was threatening Cobb Sr. and Cobb stepped in. By contrast, Ms. Cobb

claimed that the fight started because Wilson was mean to his cat and, when Ms. Cobb told

Wilson to stop, Wilson punched her in the mouth, prompting Cobb to step in. 2

A couple of days after the killing, on September 9, 2014, Cobb told Cobb Sr. in a

recorded jail call to get his laptop out of Cobb’s bedroom and put it in his room “to keep it

safe,” and that he should “clean” it. J.A. 163. In this phone call, Cobb stated that Wilson

borrowed the laptop and that he had put some “shit” on it. J.A. 163.

On September 16, 2014, after listening to the recorded jail phone call, the police

sought and obtained a search warrant for the home (the “first search warrant”). The search

warrant stated that the following list of items were to be seized:

Any and all firearms belonging to Paul Dean Wilson Jr., any and all laptop computers, including tablets or desktop computers belonging to or operated by James Timothy Cobb, any and all cellphones belonging to or operated by James Timothy Cobb, and any and all evidence of a crime.

J.A. 36.

2 Notably, Ms. Cobb’s account of the events was brought into question in a recorded jail telephone call. Ms. Cobb told Cobb that a neighbor had told her to put cotton in her lip and take a picture, and that she had heeded the advice and provided the picture to police.

24 On the same day, the police executed the first search warrant, seizing a Gateway

laptop (the “laptop”), among other items.

On September 23, 2014, the police requested and were granted another search

warrant to search the contents of the laptop (the “second search warrant”). The second

search warrant authorized a search for:

Any material associated with the homicide of Paul Dean Wilson Jr. stored internally on a Gateway laptop computer serial #NXY1UAA0032251C66F1601 dark gray in color belonging to or used by James Timothy Cobb. Any and all evidence of any other crimes.

J.A. 40. The probable cause statement in the second search warrant was as follows:

On September 7, 2014[,] the Marion County Sheriff’s Dept. responded to a domestic altercation between James Timothy Cobb and Paul Dean Wilson Jr.[,] who are cousins both living with Cobb’s parents . . . in Marion Co. Wilson was pronounced dead at the scene. Cobb was arrested and charged with second degree murder. After new evidence was discovered the second degree murder charge was dismissed and Cobb was [c]harged with first degree murder. . . . During the investigation Cobb’s phone calls from the jail have been monitored. During one conversation Cobb was heard to tell his father to get the computer out of his room and put it in his father’s room. He said there are some things on there that need to be cleaned up before anyone sees them. On at least two other occasions he made reference to his parents about never letting anyone borrow your electronic equipment. On September 16, 2014[,] the Marion County Sheriff’s Dept. served a search warrant on Cobb’s residence . . . and seized the Gateway laptop computer referenced by James Timothy Cobb.

J.A. 40, 42.

When the executing officer, Sgt. Alkire, executed the second search warrant and

began opening computer files, he stumbled upon photos of prepubescent girls.

On August 29, 2017, Cobb entered a plea of guilty to second-degree murder in state

court in Marion County, West Virginia. He was sentenced to 20 years in state prison.

25 On May 1, 2018, a federal jury in the Northern District of West Virginia returned

an indictment charging Cobb with possession of child pornography in violation of 18

U.S.C. § 2252A(a)(5)(B), (b)(2). On June 15, 2018, Mr. Cobb entered a plea of not guilty.

On July 6, 2018, Cobb moved to suppress the evidence seized per the first and

second search warrants. Relevant for purposes of this appeal, Cobb argued that the second

search warrant allowing a search of the contents of the laptop was unconstitutionally broad

in scope and “entirely lack[ed] particularity of the information or electronic files to be

seized[,] . . . leav[ing] all of Mr. Cobb’s personal information contained in the laptop at the

unfettered discretion of the State.” J.A. 94.

On July 19 and 23, 2018, a suppression hearing was held before a federal magistrate

judge. The government called no witnesses. Cobb called two witnesses to testify: Sgt.

Alkire, the attesting officer to the second search warrant, and Magistrate Cathy Reed-

Vanata, the state magistrate who issued the second search warrant.

Sgt. Alkire described his role in the investigation, including that he assisted in

executing the first search warrant and drafted and obtained the second search warrant.

According to his testimony, Sgt. Alkire had previously applied for search warrants

involving computers, including the internal contents of a computer, and that he drafted the

second search warrant in the same manner that he had drafted such warrants in the past.

Sgt. Alkire testified that he used the language “[a]ny and all evidence of any other crime”

in nearly every search warrant that he had drafted because that was the way he had been

taught to draft warrants. J.A. 114.

26 In obtaining the second search warrant, Sgt. Alkire testified that, although he did

not show the county prosecutor, Pat Wilson, a copy of the warrant, he did confer with him

in getting the warrant. Sgt. Alkire testified that the magistrate judge did not question the

“any and all evidence of other crimes” language, and that in the approximately 100 search

warrants that Sgt. Alkire had obtained with such language, no one had ever told him that

he should not include the phrase. In fact, Sgt. Alkire testified that it was “pretty much

standard practice for us. We –– we do that on about every one and we’ve never been told

otherwise.” J.A. 146.

Having obtained the second search warrant, Sgt. Alkire returned to his office and,

despite never searching a computer before, conducted the search of the laptop. He testified

that he was mainly looking for “[p]hotographs and files” relating to suffocation or any

other evidence that might shine light on the motive for the killing. J.A. 126. According to

Sgt. Alkire, it did not “take very long” to find child pornography. J.A. 125. After he found

a few photos of prepubescent girls in various stages of undress and engaged in sexual acts,

he sent the laptop to the lab for further forensic analysis.

Magistrate Reed-Vanata testified she was not provided any other information

regarding the investigation not contained in the four corners of the affidavit and that she

did not ask any questions as that was not the “appropriate practice.” J.A. 166. She also

testified that the phrase “any and all evidence” was not new to her and had been proposed

to her before in search warrants that she had granted. J.A. 166.

On August 24, 2018, the federal magistrate judge issued a report and

recommendation concluding that the second search warrant lacked sufficient particularity

27 because it did not identify the items to be seized from the laptop. Further, the magistrate

judge held that the Leon good-faith exception to the exclusionary rule did not apply and so

the child pornography should be suppressed. See United States v. Leon, 468 U.S. 897, 923

(1984).

On November 10, 2018, the district court issued its decision adopting in part and

rejecting in part the magistrate judge’s report and recommendation. The district court held

that the second search warrant was sufficiently particular. United States v. Cobb,

No. 1:18CR33, 2018 WL 4907764, at *5 (N.D. W. Va. Oct. 10, 2018). Moreover, the

district court held that even if the second search warrant was not sufficiently particular, the

evidence would be admissible under the plain-view exception. Id. Further still, the district

court held that even if the search violated the Fourth Amendment, the Leon good-faith

exception to the exclusionary rule applied. Id. at *5–6. As a result, the district court denied

Cobb’s motion to suppress. Id. at *7.

Thereafter, on October 12, 2018, Cobb entered a conditional guilty plea to

possessing child pornography, reserving his right to appeal the denial of his motion to

suppress. Cobb was sentenced to 110 months of imprisonment (to be served concurrently

with his state murder conviction) and 10 years of supervised release. This appeal followed.

On appeal, Cobb raises three main issues. First, he contends that the second search

warrant was unconstitutional for lack of particularity. Second, he contends that the plain-

view exception to the Fourth Amendment’s warrant requirement is inapplicable. Finally,

28 he argues that the government cannot rely on the Leon good-faith exception to the

exclusionary rule.

This Court reviews factual findings in a suppression motion for clear error and the

legal conclusions de novo. United States v. Pratt, 915 F.3d 266, 271 (4th Cir. 2019).

First, I turn to the issue of whether the district court erred in holding that the second

search warrant was sufficiently particular. On appeal, Cobb argues that the second search

warrant violated the Fourth Amendment’s particularity requirement as it did not specify

the types of evidence investigators were looking for on the laptop beyond evidence

“associated with the homicide of [Wilson].” J.A. 40.

Under the Fourth Amendment, a warrant must “particularly describe[e] the place to

be searched, and the persons or things to be seized.” U.S. Const. amend. IV. This is

referred to as the “particularity requirement.” The Fourth Amendment and its particularity

requirement sprung from colonial opposition to “indiscriminate searches and seizures

conducted under the authority of ‘general warrants’” known as writs of assistance. Payton

v. New York, 445 U.S. 573, 583 (1980). Such writs of assistance gave customs officials

“broad latitude to search houses, shops, cellars, warehouses, and other places for smuggled

goods” imported in violation of British tax laws. United States v. Wurie, 728 F.3d 1, 3 (1st

Cir. 2013); see Stanford v. Texas, 379 U.S. 476, 481 (1965). In a 1761 case challenging

the use of such writs in Massachusetts, James Otis famously decried that writs of assistance

were the “worst instrument of arbitrary power,” as they placed “the liberty of every man in

the hands of every petty officer.” Stanford, 379 U.S. at 481.

29 The opposition to the use of writs of assistance was not a novel pushback against

perceived government overreach. In fact, the struggle in the early years of this Nation

against the use of writs of assistance was preceded by an “earlier . . . struggle against

oppression which had endured for centuries” in England. Id. at 482. During the sixteenth,

seventeenth, and eighteenth centuries, the Crown used general warrants in enforcing

literature licensing and, later, in prosecuting seditious libel. Id. Such general warrants

“typically authorized of all persons connected of the premises of all persons connected with

the publication of a particular libel, or the arrest and seizure of all the papers of a named

person thought to be connected with a libel.” Id. at 482–83.

The resistance to such Government intrusion culminated in landmark English cases

such as Entick v. Carrington. 19 How. St. Tr. 1029 (1765). John Entick was the author of

a publication titled Monitor or British Freeholder. Stanford, 379 U.S. at 483. A warrant

was issued naming him and his publication and authorizing his arrest for seditious libel and

seizure of his “books and papers.” Id. In executing the warrant, over the course of four

hours the King’s Messengers ransacked Entick’s house, breaking open doors, locks, boxes,

chests, and drawers; reading all of Entick’s private papers and books; and carrying away

many of Entick’s papers. In the famous case, Lord Camden declared the warrant to be

unlawful. “This power,” Lord Camden stated, “so assumed by the secretary of state is an

execution upon all the party’s papers, in the first instance.” Id. at 484 (citing Entick, 19

How. St. Tr. at 1064). “His house is rifled; his most valuable secrets are taken out of his

possession, before the paper for which he is charged is found to be criminal by any

competent jurisdiction, and before he is convicted either of writing, publishing, or being

30 concerned in the paper.” Id. (quoting Entick, 19 How. St. Tr. at 1064). After this case, the

House of Commons “passed two resolutions condemning general warrants, the first

limiting its condemnation to their use in cases of libel, and the second condemning their

use generally.” Id. The case of Entick v Carrington has been described by our Supreme

Court as the “wellspring of the rights now protected by the Fourth Amendment.” Id.

Considering this history, the Supreme Court has stated that the purpose of the

particularity requirement is to make general searches “impossible.” Marron v. United

States, 275 U.S. 192, 196 (1927). A sufficiently particular warrant therefore avoids “a

general, exploratory rummaging in a person’s belongings.” Andresen v. Maryland, 427

U.S. 463, 480 (1976); see also United States v. Dargan, 738 F.3d 643, 647 (4th Cir. 2013)

(stating that the particularity requirement precludes “officers from conducting fishing

expeditions into the private affairs of others”). As this Court has stated: “The particularity

requirement is fulfilled when the warrant identifies the items to be seized by their relation

to designated crimes and when the description of the items leaves nothing to the discretion

of the officer executing the warrant.” United States v. Williams, 592 F.3d 511, 519 (4th

Cir. 2010).

Here, the second search warrant authorized a search for “[a]ny material associated

with the homicide of [Wilson] stored internally on [the laptop] . . . . Any and all evidence

of other crimes.” J.A. 40. The question is whether the limiting language that the material

had to be “associated with the homicide” of Wilson made the warrant sufficiently

particular. For the reasons explained below, I conclude that it did not.

31 The particularity requirement of the Fourth Amendment is “a pragmatic one: The

degree of specificity required when describing the goods to be seized may necessarily vary

according to the circumstances and type of items involved.” United States v. Dickerson,

166 F.3d 667 (4th Cir. 1999), rev’d in part on other grounds, 530 U.S. 428 (2000); see also

United States v. Yusuf, 461 F.3d 374, 395 (3d Cir. 2006) (“[T]he breadth of items to be

searched depends upon . . . the information available to the investigating agent that could

limit the search at the time the warrant application is given to the magistrate.”); United

States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986) (“The specificity required in a warrant

varies depending on the circumstances of the case and the type of items involved. Warrants

which describe generic categories of items are not necessarily invalid if a more precise

description of the items subject to seizure is not possible.”).

Here, at the time the second search warrant was issued, there were three different

explanations for what prompted the altercation between Cobb and Wilson—namely,

Wilson being unable to find his firearm, Cobb stepping in to protect Cobb Sr., and Wilson

being mean to his cat and punching Ms. Cobb when she stepped in. Adding a possible

fourth explanation to the mix, Sgt. Alkire knew, based on Cobb’s recorded jail calls, that

Wilson may have downloaded something on the laptop in the days before the altercation.

At the suppression hearing, Sgt. Alkire testified that he was looking for evidence of motive

that could help justify the first-degree murder charge and that he wanted to look at

photographs, files, and searches about suffocations. As the federal magistrate judge

concluded rightly: “All of this information could have been used to limit the search. The

search warrant could have been limited to the files that were testified to by Sgt. Alkire at

32 [the] suppression hearing—internet searches about suffocations and files—with the

addition of a time limit—that have been accessed and/or added within the previous two

weeks (or some time limit).” J.A. 180. Although the authorities had some suggestions as

to possible motives, they failed to cabin the search warrant to the facts known at the time.

Instead, the second search warrant lacked any particularity beyond information “associated

with the homicide” of Wilson. Sgt. Alkire could have limited—and, in my view, was

constitutionally required to limit—the search based on the information known to authorities

at the time. United States v. Fuccillo, 808 F.2d 173, 176 (1st Cir. 1987) (“In light of the

information available to the agents which could have served to narrow the scope of the

warrant and protect the defendants’ personal rights, the warrant was inadequate.” (quoting

United States v. Klein, 565 F.2d 183, 190 (1st Cir. 1977)).

It is true that this Court has recognized that, where a warrant does not sufficiently

describe the evidence to be seized, the particularity “gap can be filled, at least sometimes,

if the warrant instead specifies the relevant offense.” United States v. Blakeney, 949 F.3d

851, 862–63 (4th Cir. 2020) (emphasis added); see also id. (“[A] warrant may satisfy the

particularity requirement either by identifying the items to be seized by reference to a

suspected criminal offense or by describing them in a manner that allows an executing

officer to know precisely what he has been authorized to search for and seize.”). However,

the government and the majority’s reliance on this line of cases is misplaced. See Maj. Op.

12–13; Gov’t Br. 11–16. A warrant merely specifying the relevant offense only satisfies

the particularity requirement when “a more precise description [is] not possible in the

circumstances” and where the crime listed generates “quite distinctive evidence.”

33 Dickerson, 166 F.3d at 674 (first quoting United States v. George, 975 F.2d 72, 76 (2d Cir.

1992)). Neither of those preconditions are close to being satisfied here.

First, as discussed above, the government had information as to potential motives

for the murder. In fact, Sgt. Alkire testified that he knew the general contours of the

information he was seeking, namely, photographs, files, and searches about suffocations.

Such information could have, and should have, been included in the warrant to provide a

more “precise definition” of the evidence sought to be seized. Id. By way of example, the

warrant could have authorized the search of recently downloaded files, recent search

history, or communications between Wilson and Cobb.

Secondly, this is not a case in which the crime specified, the “homicide of [Wilson],”

would allude to distinctive evidence. This is because there are no typical “tools of the

trade” for murder, especially when the evidence sought is on a personal computer, which

stores gigabytes of data, including documents, pictures, emails, videos, search history,

instant messages, and the like.

Dickerson provides the best contrast with this case. In Dickerson, this Court held

that a warrant for the search of a residence was sufficiently particular when it stated that

the evidence to be seized was “evidence of the crime of bank robbery.” 166 F.3d at 694.

In doing so, we recognized that warrants identifying the items to be seized as “evidence of

[a] [specific crime]” are sometimes upheld as constitutional “where a more precise

description was not possible in the circumstances.” Id. at 693 (second alteration in original)

(citing George, 975 F.3d at 76). However, we explained that a warrant authorizing a search

for evidence relating to ‘“a broad criminal statute or general criminal activity’ such as ‘wire

34 fraud,’ ‘fraud,’ ‘conspiracy,’ or ‘tax evasion,’ is overbroad because it ‘provides no readily

ascertainable guidelines for the executing officers as to what items to seize.’” Id. at 694

(quoting George, 975 F.3d at 76). A warrant authorizing a search for evidence relating to

a “specific illegal activity” such as “narcotics” or “theft of fur coats,” by contrast, was

“sufficiently particular.” Id. Because we held that the specific crime of bank robbery was

“specific illegal activity that . . . generates quite distinctive evidence,” such as guns, masks,

bait money, dye-stained bills and clothes, and carrying bags, we held the warrant in

Dickerson adequately distinguished “between those items which are to be seized and those

which are not.” Id.

In this case, unlike search warrants pertaining to crimes involving narcotics, the

“theft of fur coats,” or bank robbery, the mere reference to first-degree murder when

applied to a laptop does not readily make the evidence that is the subject of the warrant

“reasonably subject to identification.” Id. As a result, this is not a case where the

particularity requirement is satisfied by merely referencing the charged offense. 3

3 Unlike the majority, I do not address our decision in Williams in the context of the particularity analysis. See Maj. Op. 14–15. In Williams, the search warrant specified that the following items were to be seized: “Any and all computer systems and digital storage media, videotapes, videotape recorders, documents, photographs, and Instrumentalities indicat[ive] of the offense of [harassment by computer in violation of Va. Code Ann. §18.2-152.7:1].” 592 F.3d at 515–16 (first alteration in original). In executing the warrant, officials found a DVD containing child pornography. Id. at 516. Williams moved to suppress the DVD, arguing that the warrant did not “authorize[] officers to view each file on the computer, but rather . . . authorized a search of only those files in his computer related to the designated state offenses.” Id. at 518–19. In assessing whether the authorities exceeded the scope of the search warrant—a legal question distinct from whether a warrant is sufficiently particular—this Court held that the seizure of the child pornography was within the scope of the warrant. Id. at 520–21. In the alternative, the (Continued) 35 In summary, in the course of their investigation the authorities had gathered enough

information to provide a more precise definition of the evidence sought. The officers were

required to use this information to limit the breadth of the search warrant. By failing to do

so, they failed to cabin the search warrant to the facts known at the time. Instead, the

warrant, as drafted, provided a general warrant to rifle through the entire contents of the

laptop and failed to adequately distinguish “between those items which are to be seized

and those which are not.” Id. To countenance the current warrant would be to permit ill-

defined fishing expeditions into the vast oceans of personal information stored on citizens’

digital devices. For the above reasons, the second search warrant was facially

unconstitutional for lack of particularity as to the items to be seized. 4

Even though the second search warrant was unconstitutional, I next consider

whether the district court erred in holding that the child pornography evidence is

Court held under the plain-view exception, discussed below, that the officers had the authority to “open each file on the computer and view its contents, at least cursorily, to determine whether the file fell within the scope of the warrant’s authorization.” Id. at 521. Even though this Court’s decision in Williams gives law enforcement broad latitude under the plain-view exception to search the contents of a computer, it does not absolve them of their responsibility to obtain a warrant that satisfies the Fourth Amendment’s particularity requirement. 4 Given that I hold the operative parts of the warrant are invalid, unlike my colleagues, I do not reach the additional question of whether the superfluous phrase “[a]ny and all evidence of any other crimes” can be severed from the rest of the warrant. See Maj. Op. 16–19. Excising such a phrase would not save the warrant.

36 nevertheless admissible under the plain-view exception. For the reasons explained below,

I conclude that the plain-view exception is inapplicable.

As a general rule, warrantless searches or seizures are per se unconstitutional.

Williams, 592 F.3d at 521. However, the Supreme Court has recognized “a few specifically

established and well-delineated exceptions.’” Mincey v. Arizona, 437 U.S. 385, 390 (1978)

(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One such exception is that

“under certain circumstances the police may seize evidence in plain view without a

warrant.” Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) (plurality opinion).

Under the plain-view exception, police may seize evidence during a lawful search if:

“(1) the seizing officer is lawfully present at the place from which the evidence can be

plainly viewed; (2) the seizing officer has a lawful right of access to the object itself; and

(3) the object’s incriminating character [is] . . . immediately apparent.” Williams, 592 F.3d

at 521 (alteration in original) (quotation marks omitted). The exception is grounded in the

rationale that when “police are lawfully in a position to observe an item first-hand, its

owner’s privacy interest in that item is lost.” Illinois v. Andreas, 463 U.S. 765, 771 (1983).

Here, the analysis begins and ends at first element. Although the first search warrant

gave officers the lawful ability to seize the laptop, it did not give them the authority to

search the laptop. That authority was purportedly conferred by the second search warrant,

which, as discussed above, was facially unconstitutional. As a result, the officers did not

have the lawful authority to search the laptop from which the alleged plain view occurred.

In other words, when Sgt. Alkire was searching the laptop, he was not “lawfully present at

37 the place from which” the child pornography was viewed. Williams, 592 F.3d at 521.

Therefore, the evidence is not admissible under the plain-view exception.

Lastly, I turn to the question of whether the evidence is nonetheless admissible

pursuant to the Leon good-faith exception to the exclusionary rule.

The suppression of evidence obtained in violation of the Fourth Amendment (called

the “exclusionary rule”) is not a remedy found in the Constitution but rather a “judicially

created prescription for . . . a violation.” United States v. Seerden, 916 F.3d 360, 366 (4th

Cir. 2019); see United States v. Calandra, 414 U.S. 338, 347 (1974) (holding that the

exclusionary rule provides that “evidence obtained in violation of the Fourth Amendment

cannot be used in a criminal proceeding against the victim of the illegal search and

seizure”). The exclusionary rule is “primarily proscriptive” in that it is “designed to

safeguard Fourth Amendment rights through its deterrent effect.” Seerden, 916 F.3d at

366. For that reason, “evidence should be suppressed ‘only if it can be said that the law

enforcement officer had knowledge, or may properly be charged with knowledge, that the

search was unconstitutional under the Fourth Amendment.’” Illinois v. Krull, 480 U.S.

340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)).

In Leon, the Supreme Court recognized a good-faith exception to the exclusionary

rule, “under which evidence obtained by an officer who acts in objectively reasonable

reliance on a search warrant will not be suppressed, even if the warrant is later deemed

invalid.” United States v. Thomas, 908 F.3d 68, 72 (4th Cir. 2018) (citing Leon, 468 U.S.

at 922). Importantly, however, in Leon Court delineated several situations in which the

38 good-faith exception would not apply, including where, “depending on the circumstances

of the particular case, [the warrant is] 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 to be valid.” 668 U.S. at 923. Here, Cobb argues that the warrant

was so facially deficient that no reasonable officer could presume it to be valid.

As discussed above, the second search warrant was facially overbroad in that it

allowed for the search for “[a]ny material associated with the homicide of [Wilson]” on the

laptop. The second search warrant failed to specify the categories of information sought

on the laptop; instead, it merely referred to the homicide and did not adequately distinguish

ex ante “between those items which are to be seized and those which are not.” Dickerson,

166 F.3d at 693.

The fact that the second search warrant was facially deficient, however, is not the

end of the good-faith inquiry. We must look to the circumstances of the case, as evidenced

by Leon’s companion case, Massachusetts v. Sheppard. 468 U.S. 981, 987 (1984); see also

Dickerson, 166 F.3d at 694 (stating that the inquiry depends “upon the understanding of a

reasonable officer in light of the totality of the circumstances”). Sheppard involved a

facially deficient warrant. But rather than categorically excluding the evidence, the

Supreme Court examined the totality of the circumstances, including the officer’s

knowledge and actions as well as the officer’s reliance on the statements of a district

attorney and the judge who issued the warrant. 468 U.S. at 989. Although Sheppard

involved a murder investigation, the officer used a form search warrant stating that

controlled substances were the object of the search. The officer raised the issue with the

39 judge, and the judge assured the officer that he would make the necessary corrections to

the warrant and that the warrant was valid. Id. at 995–96. Yet the judge failed to correct

the warrant, and the officer failed to notice the error before executing the search. In holding

that the evidence should not be suppressed for lack of particularity, the Supreme Court held

that the officers had taken “every step that could reasonably be expected of them,” id. at

989, and stated that it was “the judge, not the police officers, who made the critical

mistake,” id. at 990.

The Supreme Court again dealt with the Leon good-faith exception as it applies to

facially deficient warrants in the case of Groh v. Ramirez, 540 U.S. 551, 563 (2004). There,

the Supreme Court affirmed the denial of summary judgment in a 42 U.S.C. § 1983 action

to an officer who sought to rely on a search warrant in which he failed to particularize the

items sought. The warrant in Groh merely described the respondent’s two-story house,

rather than the items—firearms—sought to be seized. Id. at 554. Contrasting the case with

Sheppard, the Supreme Court in Groh stated that “because petitioner himself prepared the

invalid warrant, he may not argue that he reasonably relied on the Magistrate’s assurance

that the warrant contained an adequate description of the things to be seized and was

therefore valid.” Id. at 564. Ultimately, the Supreme Court held that the officer did not

have qualified immunity because the warrant was so facially deficient. Id. at 565.

Turning to the circumstances of this case, unlike in Sheppard, there is nothing in the

record that suggests Sgt. Alkire received express affirmation from the magistrate that the

warrant was valid (other than, of course, her signature). Additionally, like in Groh, Sgt.

Alkire prepared the warrant himself, without assistance from the magistrate, like in

40 Sheppard. To be sure, Sgt. Alkire consulted with the local county prosecutor, Pat Wilson,

about the warrant. See United States v. Clutchette, 24 F.3d 577, 581–82 (4th Cir. 1994)

(consultation with government attorney is relevant to a finding of good faith). But that fact

does not weigh against suppression, as the government claims. See Gov’t Br. 27. The

record reveals that Mr. Wilson’s involvement could generously be characterized as

minimal, with Sgt. Alkire failing to even show him a copy of the second search warrant.

Mr. Wilson’s guidance as to the second search warrant was confined to simply insisting

that Sgt. Alkire “[j]ust do it.” J.A. 123.

Overall, the facts of this case are much closer to Groh than Sheppard. Here, Sgt.

Alkire prepared an utterly facially deficient warrant without the strong reassurances by

magistrates and prosecutors present in Sheppard. The second search warrant, which

essentially provided for the indiscriminate rummaging through the contents of laptop, was

“so facially deficient . . . that the executing officers [could not] reasonably presume it to be

valid.” Leon, 668 U.S. at 923. As a result, Sgt. Alkire’s reliance on the warrant was not

objectively reasonable. Therefore, the Leon good-faith exception to the exclusionary rule

is inapplicable, so the child pornography should be suppressed.

Justice Frankfurter observed that, though “criminals have few friends,” the

encroachment on the Fourth Amendment “reach[es] far beyond the thief or the

blackmarketeer.” Harris v. United States, 331 U.S. 145, 156 (1947) (Frankfurter, J.,

dissenting). The encroachment in this case could reach anyone with a computer. By failing

to persist in our historical commitment to the particularity requirement in this context, I

41 believe that the majority further opens the door to unrestricted searches of personal

electronic devices. In today’s modern world, such unrestricted searches are in many ways

more invasive than the rifling of one’s home. Because “I cannot give legal sanction to

what was done in this case without accepting the implications of such a decision for the

future,” id., I respectfully dissent.