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5th Circuit Says “Close Enough Is Good Enough” for Search Warrants By EVAN DAVIS

You could be forgiven for thinking that law enforcement officers have to identify the location to be searched accurately when asking a judge to sign a search warrant.  The Fifth Circuit decided on March 4, 2020, that missing the address by ½ and not even describing the actual premises to be searched, aren’t big enough problems to throw out evidence obtained during the search.

Robert Scully co-owned (with his nephew and a third man) and operated a frozen-meals business that imported shrimp from Thailand.  Scully and his nephew arranged for relatives to inspect shrimp in Thailand, paid the relatives, and then skimmed some of the inspection commissions and didn’t report the receipt of the skimmed commissions on his tax returns.  The third owner uncovered the skim and reported Scully to the authorities.

Seeking evidence of tax and wire fraud crimes, the IRS Special Agent prepared and submitted a search warrant for Scully’s house at 1015 East Cliff Drive in Santa Cruz, California.  The SA really wanted to search Scully’s home office, which wasn’t connected to the house but was instead a separate structure behind the house.  The search warrant was defective in two important (although apparently not that important) ways: (1) had the SA checked utility records or with the post office, he would have learned that the home office had a different address than the residence: 1015 ½ East Cliff Drive; and (2) although the SA knew that the home office was unconnected to the house and he had even checked satellite images of the property, the SA didn’t even include the home office within the “premises to be searched” in the search warrant.  It isn’t fair to put all of the blame on the SA for the second error, as the local U.S. Attorney’s Office reviewed the search warrant before submitting it to a Magistrate Judge, and the Magistrate Judge reviewed it before signing it.  The second problem was obvious from the face of the warrant, as the SA described the home office as well as its importance in his affidavit in support of the search warrant, yet neither the AUSAs nor the Magistrate Judge noticed that the warrant itself (frequently the only document that agents assisting in the search will read) failed to mention the home office.

Recognizing that including the wrong address on the search warrant and not even mentioning the home office were both problems, the government paid lip service to the argument that the warrant was accurate, but fell back on the “good faith” defense to search warrant errors.  This defense is designed to save searches that were done in good faith reliance on the warrant that a Magistrate Judge had signed.  Appellate law has a low bar for the government to clear: so long as the search didn’t involve a “deliberate, reckless, or grossly negligent violation,” any evidence seized in a later-invalidated warrant can still be admitted against a defendant.

Taking up the two errors in the warrant, the Court of Appeals brushed past the government’s argument that the warrant sufficiently described the premises – no surprise, given that the address was wrong and the warrant didn’t mention the home office that yielded the evidence at issue – and marshalled facts to show that the errors weren’t deliberate, reckless, or grossly negligent.  The saving grace appears to have been that the SA who signed the search warrant affidavit (and made the aforementioned mistakes) briefed his fellow agents and personally took part in the search, permitting him to guide his fellow agents to the home office, avoid another structure on the property that was rented to someone else, and ensure that agents searched the right premises.  Further, the affidavit described the home office, so there was little doubt that the Magistrate Judge actually found probable cause to search the home office; the defect was just in the warrant and not in the affidavit and the warrant, which presumably would have been more troubling for the Court.  Left unsaid is that the agents did, in fact, search the right premises.  If they had searched and seized evidence of a crime at the wrong premises, such as the additional structure on the property rented to a third party, then the result could have been different.  It’s hard to ignore the effect of hindsight in situations like this.

The decision also underscores that trimming, as opposed to expanding, an indictment in response to post-indictment knowledge, is generally acceptable.  Here, prosecutors learned through deposing witnesses in Thailand that an allegation in the Indictment was incorrect, and they superseded the Indictment to eliminate that allegation and charges against the nephew, who died while awaiting trial.  The Court focused on whether the defendant had been prejudiced, and found none. Additionally, and not surprisingly, the Court rejected the defendant’s Speedy Trial violation argument, noting that the vast majority of the years-long trial delay was due to the defendant’s requests for more time.

The overall takeaway from the case?  The Affiant for any search warrant should brief his or her fellow agents and participate in any search to blunt the effect of any errors in the warrant.  On the flip side, the absence of the Affiant should be highlighted by any defense counsel seeking suppression.

EVAN J. DAVIS – For more information please contact Evan Davis – davis@taxlitigator.com or 310.281.3288. Mr. Davis is a principal at Hochman Salkin Toscher Perez PC.  He spent 11 years as an AUSA in the Office of the U.S. Attorney (C.D. Cal), spending three years in the Tax Division of the where he handed civil and criminal tax cases and 11 years in the Major Frauds Section of the Criminal Division where he handled white-collar, tax, and other fraud cases through jury trial and appeal.  As an AUSA, he served as the Bankruptcy Fraud coordinator, Financial Institution Fraud coordinator, and Securities Fraud coordinator.  Among other awards as a prosecutor, the U.S. Attorney General awarded him the Distinguished Service Award for his work on the $16 Billion RMBS settlement with Bank of America.  Before becoming an AUSA, Mr. Davis was a civil trial attorney in the Department of Justice’s Tax Division in Washington, D.C. for nearly 8 years, the last three of which he was recognized with Outstanding Attorney awards. 

Mr. Davis represents individuals and closely held entities in criminal tax (including foreign-account and cryptocurrency) investigations and prosecutions, civil tax controversy and litigation, sensitive issue or complex civil tax examinations and administrative tax appeals, and federal and state white-collar criminal investigations including campaign finance, FARA, money laundering, and health care fraud. 

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