Process of applying severance doctrine to save evidence seized under partially defective search warrant is clarified

SEARCH & SEIZURE United States v. Sells, No. 04-5167, ___ F.3d ___ (10th Cir. Sep. 19, 2006)(N.D. Oklahoma). Appeal of district court’s ruling on suppression motion in case involving unlawful possession of explosive device and firearms. HELD: Under severability doctrine, infirm parts of search warrant require suppression of evidence seized under defective parts of warrant but doctrine does not require suppression of things described in valid portions of warrant or lawfully seized during execution of valid portions (e.g., on plain view grounds). Application of severance doctrine requires use of specific form of analysis. First, warrant is divided in commonsense manner into individual clauses, portions, paragraphs, or categories and then constitutionality of each individual part is examined to determine whether it satisfies probable cause and particularity requirements of Fourth Amendment. If no part of warrant particularly describes items to be seized for which there is probable cause, then severance does not apply, and all items seized by such warrant should be suppressed. If, however, at least part of warrant is sufficiently particularized and supported by probable cause, then it is necessary to determine whether valid portions are distinguishable from invalid portions. If parts may be meaningfully severed, then warrant is examined to determine whether valid portions make up “greater part of warrant.” This analysis ensures severance does not render Fourth Amendment’s warrant requirement meaningless. If valid portions make up greater part of warrant, then those portions are severed and evidence seized under portions failing to meet Fourth Amendment’s warrant requirement is suppressed and evidence seized under valid portions is not. Read the opinion here.