United States v. Hurd ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30592
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00404-AJB
ADONIS LATRELL HURD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
July 12, 2007—Portland, Oregon
Filed August 24, 2007
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
10507
UNITED STATES v. HURD 10509
COUNSEL
Stephen R. Sady, Chief Deputy Federal Public Defender,
Portland, Oregon, for the defendant-appellant.
John C. Laing, Assistant United States Attorney, Portland,
Oregon, for the plaintiff-appellee.
10510 UNITED STATES v. HURD
OPINION
MILAN D. SMITH, JR., Circuit Judge:
In this appeal we consider the constitutionality of a search
of a defendant’s residence pursuant to a search warrant signed
by a judge who initialed portions of the search warrant
describing the person and automobile of the defendant, but
failed due to an “oversight” to initial the portion of the search
warrant describing the defendant’s residence. Because an
objective assessment of the circumstances surrounding the
issuance of the warrant, the contents of the warrant, and the
circumstances of the search clearly indicates that the resi-
dence was within the authorized scope of the warrant, we hold
that the search of the residence was constitutional. We find no
error in the district court’s denial of the defendant’s motion to
suppress. See United States v. Hitchcock, 286 F.3d 1064,
1071-72 (9th Cir.), as amended by 298 F.3d 1021 (9th Cir.
2002).
I. Background and Prior Proceedings
Based on police investigations and surveillance, including
at least three instances in which Adonis Latrell Hurd sold
crack cocaine to undercover officers, Portland Police Officer
Brad Clifton prepared a search warrant application and a sup-
porting affidavit requesting a warrant to search Hurd, his
vehicle, and his residence for evidence of drug trafficking.
Officer Clifton selected a warrant form from the police
department computer with which he was not familiar, and
which, when filled in, contained three distinct paragraphs
describing the person and places to be searched. The first
paragraph described Hurd’s person, the second described his
residence, and the third described his vehicle. Each of these
paragraphs was preceded by a short blank line. Before going
to a judge, Officer Clifton reviewed the warrant application
and affidavit with a police supervisor and a deputy district
UNITED STATES v. HURD 10511
attorney, both of whom agreed that the evidence justified a
request to search Hurd, his vehicle, and his residence.
On September 9, 2005, at approximately 5:20 p.m., Officer
Clifton presented the search warrant and the accompanying
affidavit to Multnomah County Circuit Judge Paula J. Kursh-
ner. Because it was after hours, Officer Clifton met with
Judge Kurshner at her home. After placing Officer Clifton
under oath, Judge Kurshner reviewed the affidavit with Offi-
cer Clifton before having him sign it to affirm the truth of its
contents. Judge Kurshner then affixed the date, time, her sig-
nature, and her handwritten name to the affidavit.
Judge Kurshner then signed the search warrant. In light of
the testimony of Officer Clifton and Judge Kurshner at the
suppression hearing, the district court determined that Judge
Kurshner told Officer Clifton that “his warrant request was
‘fine’ (or words to that effect)” as she signed the warrant.
United States v. Hurd, 427 F. Supp. 2d 984, 986 (D. Or.
2006). In addition to signing the warrant and checking the
space allowing for ten-day return service, Judge Kurshner
placed her initials on the blank lines immediately preceding
the paragraphs describing Hurd and his vehicle, but she did
not initial the blank preceding the description of Hurd’s resi-
dence.1
On September 15, 2005, police officers stopped and
searched Hurd and his vehicle pursuant to the search warrant.
Officer Clifton read the entire search warrant to Hurd, includ-
ing the portion that Officer Clifton believed authorized the
search of the residence. The officers later went to the resi-
dence described in the second paragraph of the search warrant
1
As discussed at greater length below, Judge Kurshner testified at the
suppression hearing, and the district court subsequently found, that her
failure to initial the blank line preceding the description of Hurd’s resi-
dence was “an oversight” rather than an indication that she did not autho-
rize the search of the residence. Hurd, 427 F. Supp. 2d at 986, 989.
10512 UNITED STATES v. HURD
and forced entry because no one was at home. After the offi-
cers secured the residence, Nakia Clay, an occupant of the
residence, arrived at the scene. Officer Clifton read the entire
search warrant to Ms. Clay, stating that the warrant authorized
the search of the residence. Although the searches of Hurd’s
person and his vehicle failed to produce any useful evidence,
the search of the residence resulted in the seizure of crack
cocaine, a scale, and over $3,000 in cash.
Based on the evidence seized during the search of the resi-
dence, Hurd was charged with possession with intent to dis-
tribute crack cocaine in violation of 21 U.S.C. §§ 841(a),
(b)(1)(A). Hurd then filed a motion to suppress the seized evi-
dence alleging that the search warrant did not authorize the
officers to search the residence. In denying Hurd’s motion to
suppress, the district court did not address whether the search
of Hurd’s residence was within the scope of the warrant. See
Hurd, 427 F. Supp. 2d at 989. Instead, the district court con-
cluded that even if the search went beyond the scope of the
warrant, the exclusionary rule should not be applied in this
case based on the balancing test set forth in United States v.
Luk, 859 F.2d 667, 675 (9th Cir. 1988), and employed in
United States v. Sears, 411 F.3d 1124, 1128 (9th Cir. 2005).
Hurd, 427 F. Supp. 2d at 989-90.2
After the denial of his motion to suppress, Hurd entered a
conditional guilty plea to the amended indictment charging
the drug quantity listed in 21 U.S.C. § 841(b)(1)(B)(iii). In his
plea agreement, Hurd specifically reserved the right to appeal
the denial of his motion to suppress.
2
The Luk/Sears test balances three factors: “(1) whether suppression
would affect the group conduct that the exclusionary rule was designed to
punish, i.e., police misconduct; (2) the source of the error in the particular
case and whether any evidence suggested that the source, e.g., issuing
magistrates, was inclined to ignore or subvert the Fourth Amendment; and
(3) the basis for believing the exclusion of evidence will have a significant
deterrent effect upon the source of the error.” Sears, 411 F.3d at 1128(quoting Luk, 859 F.2d at 675).
UNITED STATES v. HURD 10513
We affirm the district court’s denial of the motion to sup-
press on the ground that the residence was within the scope
of the warrant, and, therefore, that the search of the residence
was constitutional and the evidence discovered therein was
properly admissible. Accordingly, we do not reach the appli-
cability of Luk/Sears to the facts of this case.
II. Standard of Review and Jurisdiction
Whether a search is within the scope of a warrant is a ques-
tion of law subject to de novo review. United States v. Can-
non, 264 F.3d 875, 878 (9th Cir. 2001). We review the district
court’s factual findings for clear error. United States v. How-
ard, 447 F.3d 1257, 1262 n.4 (9th Cir. 2006).
The district court had jurisdiction under 18 U.S.C. § 3231and we have jurisdiction under 28 U.S.C. § 1291.
III. Discussion
Under the Fourth Amendment, “no Warrant shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the per-
sons or things to be seized.” Hurd does not dispute that Offi-
cer Clifton’s signed affidavit provided probable cause to
search Hurd’s person, his vehicle, and his residence. Nor does
he dispute the particularity of the description of the places to
be searched or the things to be seized.3 Hurd merely argues
3
Although Hurd argues in his brief that the search of his residence vio-
lated the “particularity” requirement, he asserts that argument only as part
of his overarching claim that the issuing judge failed to authorize the
search of the residence rather than as a separate challenge to the adequacy
of the description of the places to be searched or the items to be seized.
See Groh v. Ramirez, 540 U.S. 551, 558 (2004). Hurd does not challenge
the sufficiency of the descriptions in the warrant; he only argues that
Judge Kurshner did not authorize the search of the residence and thus the
officers’ search went beyond the scope of the search warrant that issued
for his person and his vehicle.
10514 UNITED STATES v. HURD
that Judge Kurshner never authorized the search of the resi-
dence and thus a search warrant for the residence did not
“issue.”
[1] A search is unreasonable under the Fourth Amendment,
and thus unconstitutional, if it is performed without proper
judicial authorization. See Groh v. Ramirez, 540 U.S. 551,
562-63 (2004); McDonald v. United States, 335 U.S. 451, 453
(1948). Suppression is generally the proper remedy when the
police go beyond the scope of an authorized search warrant by
searching places or seizing evidence not included in the war-
rant. See United States v. Mittelman, 999 F.2d 440, 445 (9th
Cir. 1993) (holding that “the district court should determine
what evidence, if any, was seized in violation of the warrant
and order suppression of that evidence”); United States v.
Chen, 979 F.2d 714, 717 (9th Cir. 1992) (“Ordinarily, only
evidence that is obtained in violation of a warrant is sup-
pressed.”); United States v. Crozier, 777 F.2d 1376, 1381 (9th
Cir. 1985) (holding that “those items which fall outside the
scope of the warrant need be suppressed”). To determine
whether the search of a specific location is within the scope
of a valid warrant, we look to the Hitchcock test: “Whether a
search exceeds the scope of a search warrant is an issue we
determine through an objective assessment of the circum-
stances surrounding the issuance of the warrant, the contents
of the search warrant, and the circumstances of the search.”
Hitchcock, 286 F.3d at 1071.
A. Circumstances surrounding the issuance of the
warrant
To determine whether the search of Hurd’s residence was
within the scope of the warrant, we first conduct “an objective
assessment of the circumstances surrounding the issuance of
the warrant . . . .” Hitchcock, 286 F.3d at 1071.
Officer Clifton applied for a warrant authorizing the search
of Hurd’s person, his residence, and his vehicle. In support of
UNITED STATES v. HURD 10515
the warrant application, Officer Clifton submitted a sworn
affidavit setting forth probable cause for the search of the resi-
dence described in the warrant.4 Officer Clifton notes in the
affidavit that he and other officers witnessed Hurd on multiple
occasions drive to the residence described in the warrant,
enter the apartment, and then return to his vehicle and imme-
diately proceed to the site where he sold drugs to a police
informant. Following these transactions, Hurd would return to
the residence described in the warrant. The affidavit also
notes that Hurd’s personal information in the police data sys-
tem lists the apartment described in the warrant as his perma-
nent residence.
[2] When Officer Clifton presented this affidavit and the
search warrant to Judge Kurshner at her home, the judge
placed Officer Clifton under oath and reviewed the affidavit.
She then instructed Officer Clifton to sign the affidavit and
she also signed it herself. Judge Kurshner did not ask any
questions about the information in the affidavit or the request
to search Hurd, his residence, and his vehicle. She did not
give any indication that probable cause only supported part of
the requested search warrant, nor did she give any indication
that there were any other problems with the warrant request.
To the contrary, Judge Kurshner told Officer Clifton that “his
warrant request was ‘fine’ (or words to that effect)” before
signing the search warrant itself. Judge Kurshner signed the
warrant promptly after reviewing and signing Officer Clif-
ton’s affidavit, and that affidavit indisputably described the
probable cause for searching Hurd’s residence. It is likely that
if Judge Kurshner did not intend to authorize the search of
Hurd’s residence, she would have done something to call
Officer Clifton’s attention to whatever deficiency she found
in the warrant request and she would not have simply indi-
cated her approval of the warrant. An objective assessment of
the circumstances surrounding the issuance of the warrant
4
Hurd does not dispute that the affidavit sets forth probable cause to
search his residence.
10516 UNITED STATES v. HURD
thus supports the conclusion that Judge Kurshner authorized
the search of Hurd’s residence along with the search of his
person and his vehicle.
B. Contents of the search warrant
We next consider “the contents of the search warrant . . . .”
Hitchcock, 286 F.3d at 1071.
The face of the search warrant contains three paragraphs
describing what was to be searched. The first describes
Hurd’s person, the second describes his residence, and the
third describes his vehicle. The residence is described in
detail:
The residence and curtilage at 3644 Southeast 88th
Avenue apartment A, in the City of Portland, Mult-
nomah County, Oregon. The residence at 3644
Southeast 88th Avenue apartment A, Portland, Mult-
nomah County, is within the Spring Garden Apart-
ments, located at the south end of SE 88th Avenue,
south of SE Lafayette Street. The apartment is within
a two story apartment building located on the west
side of the apartment complex. The building is yel-
low in color with white trim and red brick accents.
The numbers “3644”, black in color, are set into the
brick on a post to the right of the front door. Apart-
ment A is at the south end of the building. The front
door, green in color, faces east. The letter “A”, gold
in color, is posted on the front door at eye level. The
residence at 3644 SE 88th Avenue, apartment A is
within the City of Portland, County of Multnomah,
State of Oregon.
A short blank line immediately precedes the paragraph
describing Hurd’s residence as well as the paragraphs describ-
ing Hurd’s person and his vehicle. Judge Kurshner initialed
the lines next to the first and third paragraphs (describing
UNITED STATES v. HURD 10517
Hurd’s person and vehicle), but not the line next to the second
paragraph (describing Hurd’s residence). The search warrant
also contains two paragraphs that specifically describe the
items to be seized, including crack cocaine, drug parapherna-
lia such as razor blades and scales, and cash. Judge Kursh-
ner’s signature appears at the end of the warrant.
[3] Hurd argues that Judge Kurshner’s initials next to the
paragraphs describing Hurd’s person and his vehicle, and the
absence of her initials next to the paragraph describing Hurd’s
residence, indicate that the judge only authorized a search of
the person and the vehicle, but not the residence. We find that
an objective assessment of the contents of the warrant does
not lead to this conclusion. Because a neutral and detached
judge signed the warrant, and because that warrant was sup-
ported by a sworn affidavit clearly establishing probable
cause and describing with particularity the places to be
searched and the items to be seized, it met all of the constitu-
tional requirements for a valid search warrant. U.S. Const.
amend. IV. Judge Kurshner’s words and actions as she exam-
ined and signed the warrant indicate that her failure to initial
the description of Hurd’s residence was a minor technical
error rather than evidence of a constitutional deficiency in the
contents of the search warrant. This assessment is buttressed
by Judge Kurshner’s testimony at the suppression hearing that
her failure to initial the blank line next to the paragraph
describing the residence was merely an “oversight” rather
than an indication that she did not authorize the search of the
residence. She also noted at the suppression hearing that she
normally crosses out any deficient portions of a search war-
rant before signing her name at the end of the document. In
this case, Judge Kurshner left the entire warrant intact, includ-
ing the paragraph describing Hurd’s residence. Thus, an
objective assessment of the contents of the search warrant
also indicates that the warrant was lawfully authorized, and
that Hurd’s residence was within its scope.
10518 UNITED STATES v. HURD
C. Circumstances of the search
Finally, we consider “the circumstances of the search” to
determine whether Hurd’s residence was within the scope of
the warrant. Hitchcock, 286 F.3d at 1071.
On September 15, 2005, Officer Clifton executed the
search warrant with the help of other officers. They stopped
and searched Hurd and his vehicle, and Officer Clifton read
the entire search warrant to Hurd, including the portion
describing Hurd’s residence. Later that day, the officers went
to the residence described in the warrant and forced entry
because no one was at home. At the residence, Officer Clifton
read the entire search warrant to Ms. Clay, an occupant of the
apartment who arrived at the scene shortly after the police.
Officer Clifton stated that the warrant authorized the search of
the residence.5
[4] Hurd does not allege, nor does the record indicate, that
the officers committed any procedural misconduct during the
search. They confined their search to the specific locations
described in the warrant. Officer Clifton kept a detailed record
of the seized evidence, all of which was listed among the
items authorized for seizure in the warrant. The day after the
search, Officer Clifton properly returned the warrant to Judge
Douglas G. Beckman, in Judge Kurshner’s absence. On the
“Return of Search Warrant” form, Officer Clifton openly
stated that the search included the residence as described in
the warrant. Neither Judge Beckman nor Judge Kurshner ever
5
The district court found that Officer Clifton did not notice the absence
of Judge Kurshner’s initials on the blank line next to the paragraph
describing the residence when he read the warrant aloud to Hurd and Ms.
Clay. We do not address the legitimacy of this finding because “our
inquiry is an objective one, [and so] we need not be concerned with the
state of mind of the officer who executed the warrant.” Hitchcock, 286
F.3d at 1072 n.9; see also United States v. Ewain, 88 F.3d 689, 694 (9th
Cir. 1996) (holding that an officer’s subjective intent is irrelevant to the
determination of whether a search is within the scope of a warrant).
UNITED STATES v. HURD 10519
told Officer Clifton, or anyone else, that the officers had gone
beyond the scope of the warrant by searching the residence.
[5] In sum, “[t]he circumstances surrounding the issuance
of the search warrant, the contents of the warrant, and the cir-
cumstances surrounding the execution of the warrant” all sug-
gest that the search of Hurd’s residence was within the scope
of the search authorized by Judge Kurshner. Hitchcock, 286
F.3d at 1072. The only evidence to the contrary is the absence
of Judge Kurshner’s initials from the blank line next to the
paragraph describing Hurd’s residence. In light of all the rele-
vant objective factors, most importantly the nature of Officer
Clifton’s interaction with Judge Kurshner and her affirmative
statement that the warrant was fine, “the record indicates that
the only reason the search warrant [lacked Judge Kurshner’s
initials] was the court’s inadvertence.” Id.; see also Massa-
chusetts v. Sheppard, 468 U.S. 981, 989-90 (1984) (“[W]e
refuse to rule that an officer is required to disbelieve a judge
who has just advised him, by word and by action, that the
warrant he possesses authorizes him to conduct the search he
has requested.”).
[6] Accordingly, we hold that it was objectively reasonable
for Officer Clifton to believe that Judge Kurshner authorized
the search of Hurd’s residence, despite her failure to initial the
appropriate line on the search warrant.6
6
Hurd argues that we would create an inter-circuit conflict with United
States v. Angelos, 433 F.3d 738 (10th Cir. 2006), by finding that the search
of the residence was within the scope of the warrant in this case. However,
Angelos is readily distinguishable. Most notably, in that case (1) the search
warrant did not include the same locations that were described in the sup-
porting affidavit, (2) the officers searched a location that was not
described anywhere on the face of the warrant, and (3) the issuing judge
did not give an affirmative indication that the location in question was
within the scope of the warrant. Angelos, 433 F.3d at 743-45.
10520 UNITED STATES v. HURD
IV. Conclusion
We conclude that the search of Hurd’s residence was
within the scope of a properly authorized warrant and we
affirm the district court’s denial of Hurd’s motion to suppress.
AFFIRMED.