Particularity.—"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."117 This requirement thus acts to limit the scope of the search, inasmuch as the executing officers should be limited to looking in places where the described object could be expected to be found.118 The purpose of the particularity requirement extends beyond prevention of general searches; it also assures the person whose property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows, therefore, that the warrant itself must describe with particularity the items to be seized, or that such itemization must appear in documents incorporated by reference in the warrant and actually shown to the person whose property is to be searched.3
117 Marron v. United States, 275 U.S. 192, 196 (1927). See Stanford v. Texas, 379 U.S. 476 (1965). Of course, police who are lawfully on the premises pursuant to a warrant may seize evidence of crime in "plain view" even if that evidence is not described in the warrant. Coolidge v. New Hampshire, 403, U.S. 443, 464-71 (1971).
118 "This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-58 (1931); see United States v. Di Re, 332 U.S. 581, 586-87 (1948). The scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Mr. Justice Fortas concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-68 (1964); Agnello v. United States, 296 U.S. 20, 30-31 (1925)." Terry v. Ohio, 392 U.S. 1, 18-19, (1968). See also Andresen v. Maryland, 427 U.S. 463, 470-82 (1976), and id. at 484, 492-93 (Justice Brennan dissenting). In Stanley v. Georgia, 394 U.S. 557, 569 (1969), Justices Stewart, Brennan, and White would have based decision on the principle that a valid warrant for gambling paraphernalia did not authorize police upon discovering motion picture films in the course of the search to project the films to learn their contents.
3 Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did not describe the items to be seized was “plainly invalid”; particularity contained in supporting documents not cross-referenced by the warrant and not accompanying the warrant is insufficient). United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (because the language of the Fourth Amendment “specifies only two matters that must be ‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or things to be seized[,]’ . . . the Fourth Amendment does not require that the triggering condition for an anticipatory warrant be set forth in the warrant itself.”
Last modified: June 9, 2014