United States v. Nolan

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 26, 2021
• Docket: 20-1021
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 26, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-1021 (D.C. No. 1:18-CR-00297-PAB-1) ROBERT CHAD NOLAN, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, BRISCOE, and BACHARACH, Circuit Judges. _________________________________

Robert Chad Nolan appeals his convictions for several drug-related crimes and

possession of a firearm during and in furtherance of a drug trafficking offense.

Specifically, he appeals the district court’s order denying his motion to suppress

evidence seized during a search of his home. In support, he argues the search

warrant for his home fails the particularity requirement because the warrant was

facially deficient. He relies on the fact that the exhibit which listed the items to be

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. seized was no longer physically attached to the warrant at the time it was executed.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

Detective Haley of the La Junta Police Department prepared the application

for a search warrant for Nolan’s residence. The application included Exhibit A

which was Detective Haley’s affidavit in support of the warrant application, and

Exhibit B which listed the items to be searched for and seized.1 Both exhibits were

submitted to the issuing judge as part of the “warrant packet.” R., Vol. IV at 12.

Both exhibits were thus “physically with the Search Warrant” when presented to the

judge. Id. at 15.

Before executing the warrant, Detective Haley briefed the other officers about

the scope of the search. He testified at the suppression hearing that he showed them

1 Exhibit B listed the following categories of items to be searched for:

Substances that can be identified as a controlled substance listed as a Schedule I – IV in the Colorado Revised Statutes.

Items associated with the preparation, consumption and distribution of known controlled substances.

Documentation that relates to the ownership and/or prescriptions for any located substance.

United States currency, recording and monitoring devices (including cell phone devices) used in the facilitation of drug transactions, any weapons used or maintained for the protection of said unlawful enterprise together with any storage devices, computers, books, records, receipts, bank statements, utility

2 the warrant packet, including Exhibit B, “so they [would] understand the totality of

the case and . . . specifically what [they] were to be searching for.” Id. at 13; see also

id. at 20 (testifying that the purpose of the briefing was to give the officers an

“opportunity to review” Exhibit B and to provide “guidance about exactly what the

scope of the search include[d]”).

Detective Haley left the original warrant packet at the station and took a

complete copy with him to Nolan’s residence to execute the search. Before arriving

at the house, Detective Haley and another officer encountered Nolan in his vehicle.

Nolan asked to see the warrant. Detective Haley retrieved the first page of the

warrant from his patrol car and showed it to Nolan, but he left the rest of the warrant

packet, including Exhibit B, in the car, which was parked in front of Nolan’s

residence while officers executed the search. The officers did not have a physical

copy of Exhibit B with them inside the house, but did have the warrant itself.

Nolan conceded that the warrant was sufficiently particular under the Fourth

Amendment when it was issued because Exhibit B was part of the warrant packet

Detective Haley submitted to the judge, and he did not claim it was “invalid because

it was insufficiently particular when it was produced to him” by Detective Haley.

bills, records evidencing the acquisition, concealment, transfer and sale of drugs and narcotics.

Passwords, password files, test keys, encryption codes or other information necessary to access the digital device or data stored on the digital device.

Supp. R. at 36. 3 Supp. R. at 78. He also conceded that “if the supporting documents were physically

attached to the warrant at the time of the execution of the search, and they were

inside a police car parked in front of the house, then . . . a valid warrant was

sufficiently present.” Id. at 75; see also id. at 77. But he maintained that because

Exhibit B was not physically attached to the warrant when it was executed, the

warrant no longer met the particularity requirement. He acknowledged that his

argument was “technical[].” R., Vol. IV at 28. The district court rejected Nolan’s

argument, concluding that the warrant met the particularity requirement when it was

issued and that it “wouldn’t make any sense” to conclude that it was no longer

sufficiently particular upon execution just because the warrant order was in the house

and Exhibit B was in the patrol car, id. at 81.

Discussion

1. Legal Standards

When reviewing the denial of a motion to suppress, we view the evidence in

the light most favorable to the government, uphold the district court’s factual

findings unless clearly erroneous, and review its legal determinations, including

whether the warrant at issue is sufficiently particular, de novo. United States v.

Williamson, 1 F.3d 1134, 1135 (10th Cir. 1993).

The Fourth Amendment states unambiguously that “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; Groh v. Ramirez, 540 U.S. 551, 557 (2004) (emphasis omitted).

4 “A description is sufficiently particular when it enables the searcher to reasonably

ascertain and identify the things authorized to be seized.” United States v. Leary, 846

F.2d 592, 600 (10th Cir. 1988) (internal quotation marks omitted). The Fourth

Amendment “requires particularity in the warrant, not in the supporting documents,”

but a warrant may “cross-referenc[e] other documents,” Groh, 540 U.S. at 557, and

the particularity of an affidavit identifying the items to be seized may cure an

overbroad warrant if it is physically connected to the warrant and the warrant

expressly refers to the affidavit and incorporates it by reference, Leary 846 F.2d at

603.

2. Application

As he did before the district court, Nolan concedes on appeal that the warrant

was sufficiently particular when issued because it referred to Exhibit B which was

referenced on the face of the warrant as containing a description of the items to be

seized and Exhibit B was included as part of the warrant application. And he does

not argue that the search exceeded the scope of the warrant.2 His sole contention is

2 Nolan also does not contend that suppression was required because Detective Haley “gave [him] an incomplete copy of the warrant packet.” Aplt. Br. at 20. See United States v. Grubbs, 547 U.S. 90, 98 (2006) (“The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is . . . evidence that the requirement of particular description does not protect an interest in monitoring searches.” (internal quotation marks omitted)); United States v. Pulliam, 748 F.3d 967, 973 (10th Cir. 2014) (“[U]nder Grubbs, persons targeted by a search warrant have no right rooted in the Fourth Amendment’s particularity clause in using their copy of the warrant in an attempt to monitor or control the search during its execution.”). 5 that the warrant did not meet the particularity requirement when executed because it

was no longer physically attached to Exhibit B. We disagree.

“[T]he plain language of the Fourth Amendment requires us to focus solely on

the warrant as issued to police.” United States v. Pulliam, 748 F.3d 967, 973

(10th Cir. 2014); see U.S. Const. Amend. IV (“[N]o Warrants shall issue” without

probable cause and a sufficiently particular description of the place to be searched

and things to be seized. (emphasis added)). The focus on the warrant as issued in

determining whether it is sufficiently particular is consistent with the purpose of the

particularity clause—“to prevent general searches” and “assure[] the individual

whose property is searched or seized of the lawful authority of the executing officer,

his need to search, and the limits of his power to search,” Groh, 540 U.S. at 560-61

(internal quotation marks omitted).

In Groh, the Supreme Court ruled that an unattached and unincorporated

affidavit and application were insufficient to cure a warrant lacking in particularity,

explaining that:

unless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the [issuing judge] actually found probable cause to search for, and to seize, every item mentioned in the affidavit.

540 U.S. at 560. Judging the sufficiency of the warrant at the time of issuance, not

the time of execution, the Court held that the warrant was “obviously deficient”

because it “did not describe the items to be seized at all,” id. at 558 (emphasis

omitted), and rejected the government’s argument that the warrant was nevertheless

6 valid because when executing it, the officer “orally described . . . the items to be

seized” and “did not exceed the limits intended by the [issuing judge],” id. Contrary

to Nolan’s assertion, nothing in Groh suggests that a warrant that is sufficiently

particular when issued is no longer valid when executed if the exhibit describing

items to be seized is no longer physically attached to the warrant.

Like Groh, our decisions in Leary and Williamson examined the sufficiency of

the challenged warrants when they were issued, not when they were executed. In

Leary, we held that a sufficiently particular affidavit “may cure an overbroad warrant” if

the affidavit and warrant are “physically connected so that they constitute one

document.” 846 F.2d at 603. We invalidated a facially overbroad warrant that did not

incorporate the supporting affidavit, noting that “there is no clear evidence in the record

to support the government’s assertion that the affidavit was a part of the warrant.” Id.

(internal quotation marks omitted). And we expressly declined to assess the particularity

of the warrant at the time of execution, rejecting the government’s argument that “the

facial overbreadth of the warrant is not fatal because any doubts about what was to be

seized could be resolved by resort to the affidavit which was a part of the warrant . . . the

agents had with them at the location of the search.” Id. (internal quotation marks

omitted).

Then, in Williamson, we invalidated a warrant as insufficiently particular when

issued because it “provide[d] no meaningful description of the premises” to be

searched, and we rejected the government’s argument that the executing officer’s

knowledge of the actual location of the business alone cured the defective warrant.

7 1 F.3d at 1136. Relying on one sentence in a footnote in Williamson, Nolan maintains

that the rule in this circuit is that to satisfy the particularity requirement, an unspecific

warrant and the documents providing the necessary particularity must be attached at the

time of execution. Read in context, however, our statement in Williamson does not stand

for that broad proposition.

Annotating our conclusion in Williamson that the warrant was not sufficiently

particular and was therefore invalid when issued, the footnote addressed the

government’s argument that other documents available at the time of execution could

cure the deficiency in the warrant as issued. We acknowledged that, under Leary, an

overbroad warrant can be cured by an incorporated affidavit if the documents are

“physically connected so that they constitute one document,” but we declined to consider

whether “the contents of the warrant application or its accompanying affidavit” could

cure the deficient warrant because there was “no evidence in the record that either the

affidavit or the warrant application were attached to the search warrant at the time of

execution.” Id. at 1136 n.1 (emphasis added, internal quotation marks omitted). Nothing

in Williamson suggests, however, that the warrant and supporting documents were

attached and met the Leary “one document” rule when the warrant application was

submitted to the issuing judge. Accordingly, and contrary to Nolan’s contention,

Williamson does not stand for the proposition that a warrant that is valid when issued

based on an attached exhibit providing the necessary particularity is no longer valid

when executed if the exhibit and warrant do not remain physically attached.

8 Indeed, since Williamson, we have expressly held the opposite, albeit in an

unpublished decision. Specifically, in United States v. Perez, 145 F.3d 1347, *4 & n.2

(10th Cir. 1998) (unpublished), we held that in determining whether a warrant satisfies

the particularity requirement, courts may consider incorporated documents that were

physically attached to the warrant when it was issued but not when it was executed if the

officer who applied for the warrant was one of the officers who conducted the search and

the defendant does not contend that the executing officers exceeded the scope of the

items listed in the attachment. That is precisely the scenario presented here. Detective

Haley prepared the warrant application which included his affidavit as Exhibit A and

Exhibit B listing the items to be seized. He submitted them as one document to the

issuing judge, provided the other officers with a copy of the complete warrant packet and

briefed them about the purpose and scope of the search, and was one of the officers who

conducted the search. Nolan concedes that the warrant was valid when issued, and he

does not claim the executing officers exceeded the scope of the warrant. Accordingly, we

reject his challenge to the sufficiency of the warrant. See id.3

Having concluded that the warrant satisfied the particularity requirement, we

need not address Nolan’s argument that the good faith exception to the exclusionary

rule “cannot save the search in this case,” Aplt. Br. at 23.

3 Perez did not suggest, nor do we, that these are the only circumstances in which a court may consider incorporated documents that were physically attached to the warrant when it was issued but not when it was executed. 9 Conclusion

We affirm the district court’s order denying Nolan’s motion to suppress and

therefore affirm his conviction.

Entered for the Court

Mary Beck Briscoe Circuit Judge