3/27/25: Important Fourth Amendment Decision

In United States v. Holcomb, --- F.4th ---, No. 23-469 (9th Cir. 2025), the Court reversed the district court’s ruling on Holcomb’s motion to suppress three videos found on his computer, vacated his conviction and sentence for producing child pornography, and remanded for further proceedings.

The opinion is worth reading, especially if you are litigating a suppression issue based on an overbroad warrant or dealing with the good faith exception.  Here are some key points. 

This case raises a variation of the familiar but always troubling issue of whether someone can be prosecuted for despicable criminal conduct based on evidence obtained in violation of the United States Constitution. In the circumstances of this case, respect for the Constitution and the rule of law requires an answer of “no.”

On appeal, Holcomb argues, inter alia, that the second warrant’s dominion and control provision, on the basis of which the examiner located the three videos that led to Holcomb’s indictment, was invalid because it was both overbroad and insufficiently particular. He further argues that, under Ninth Circuit precedent, the good-faith exception does not apply to the examiner’s search of his computer. The Government disputes each of these arguments and also argues that the plain view doctrine independently authorized the examiner’s seizure of the three videos depicting child sexual abuse. 

We agree with the district court that the dominion and control provision was invalid because it was both overbroad and insufficiently particular. However, unlike the district court, we conclude that the good-faith exception does not apply to the examiner’s search. Furthermore, we conclude that the plain view doctrine does not independently justify the examiner’s seizure of the videos.

We first consider the validity of the dominion and control provision of the second warrant. At the outset, we observe that evidence of dominion and control was not at all relevant to the state’s investigation of the alleged assault.

Even assuming, arguendo, that evidence of dominion and control was relevant to the state’s investigation, the warrant’s dominion and control provision still violated the Fourth Amendment’s specificity requirement.

 Our cases have distinguished the Fourth Amendment’s specificity requirement in two respects: breadth and particularity. Breadth is the requirement that a warrant “be limited by the probable cause on which the warrant is based,” while particularity is the requirement that a warrant “clearly state what is sought.” United States v. SDI Future Health Inc., 568 F.3d 684, 702 (9th Cir. 2009) (“SDI”). Together, these requirements protect against “the principal evil” of general warrants, which allowed royal officials during the colonial era to “search and seize whatever and whomever they pleased while investigating crimes or affronts to the Crown.”  “[G]iven the vast amount of data” stored on computers, a “heightened” specificity requirement applies “in the computer context.”

Starting with overbreadth, the Government has failed to identify any meaningful limitation on the scope of the dominion and control provision. Unlike the other provisions of the warrant—which were limited to communications between Holcomb and J.J., surveillance footage depicting Holcomb or J.J., location data, and the computer’s search history—the dominion and control provision was not limited to a particular type of evidence. In addition, again unlike the other provisions, the dominion and control provision lacked any temporal limitation, thereby authorizing the state to open and examine any file from any time period, including files that long predated the alleged assault.

We therefore conclude that the second warrant’s dominion and control provision was overbroad.

We similarly conclude that the dominion and control provision was insufficiently particular. As we have explained, “[t]he purpose of particularizing the items to be seized is to insure that when the warrant is executed, nothing is left to the officer’s discretion.” Because Holcomb’s computer contained thousands of files and because the dominion and control provision did not contain any temporal limitations, the examiner simply exercised his unfettered discretion in determining which files to scroll past and which files to open and examine pursuant to that provision. On that basis alone, we can conclude that the dominion and control provision was insufficiently particular.

Both because it was overbroad and because it was insufficiently particular, the dominion and control provision effectively transformed the second warrant into a general warrant. 

Even if the Government had preserved such an argument, the severability doctrine would not save the examiner’s search because it is clear that the examiner discovered the disputed evidence pursuant to the dominion and control provision alone.

In holding that the dominion and control provision transformed the second warrant into a general warrant, we do not mean to suggest that dominion and control provisions must always contain temporal limitations. However, on the facts of this case, where the Government has failed to establish that evidence of dominion and control was relevant to its search, where the Government knew the exact time period surrounding the incident it sought to investigate, where the affidavit did not establish probable cause to search for evidence outside that period, and where every other warrant provision sought to limit the scope of the warrant to that period, the unlimited dominion and control provision plainly violated the Fourth Amendment’s specificity requirement. Any other holding would allow any warrant with a dominion and control provision to function as a general warrant. The Fourth Amendment forecloses that result. 

Having determined that the dominion and control provision was invalid twice over, we proceed to consider whether the examiner nevertheless complied with the Fourth Amendment by executing the second warrant in good faith. Under the good-faith exception, if officers conduct a search pursuant to a search warrant that is later invalidated, they still satisfy the Fourth Amendment so long as they acted in “objectively reasonable reliance” on that warrant. 

The Supreme Court has recognized “four situations that per se fail to satisfy the good faith exception.” United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013) (discussing United States v. Leon, 468 U.S. 897 (1984)). The four situations are: (1) where the affiant recklessly or knowingly placed false information in the affidavit that misled the issuing judge; (2) where the judge wholly abandons his or her judicial role; (3) where the affidavit is so lacking in indicia of probable cause as to render official belief in its existence utterly unreasonable; and (4) where the warrant is so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid. In each of these situations, an officer “will have no reasonable grounds for believing that the warrant was properly issued.

As the district court acknowledged in this case, it remains unclear whether the Supreme Court intended for “the road between Leon’s good-faith exception and qualified immunity to run both ways.” Needham and Manriquez point in different directions on that question. While Needham suggests that courts should import the heightened qualified immunity standard, Manriquez rejected that approach in favor of the “reasonable officer” standard. Moreover, this three-judge panel cannot clarify the applicable standard without calling for en banc review.

Interesting though this question may be, however, we need not resolve the tension between Needham and Manriquez in this case because we conclude that the good faith exception does not apply under either standard. To begin with, our existing precedents clearly establish that warrant provisions like the second warrant’s dominion and control provision violate a defendant’s Fourth Amendment rights.

Together, Kow, SDI, and the cases on which they rely stand for two clearly established principles. First, when probable cause to search is limited to a particular location, suspect, time period, or type of evidence, any warrant provision that is wholly lacking in any corresponding limitation is overbroad and therefore facially deficient under the Fourth Amendment. Second, an officer who relies on any such provision while executing a search warrant does not act in good faith.

[W]e conclude that the examiner did not act in “objectively reasonable reliance” on the second warrant when he discovered the videos depicting child sexual abuse from November 2016

The Government also argues that the seizure of the three videos depicting child sexual abuse was independently authorized by another exception to the warrant requirement: the plain view doctrine. Under that doctrine, the government may seize evidence without a valid warrant so long as government officials are “lawfully searching the area where the evidence is found” and “the incriminatory nature of the evidence [is] immediately apparent.”  The burden of demonstrating that both requirements are satisfied lies with the Government.

The Government was not “lawfully searching the area where the evidence was found” because it found the three videos while executing a general warrant. Where “the plain view seizure was in the context of officers executing an essentially general warrant,” the “justification for the plain view is . . . absent.” The Government thus fails to satisfy the first requirement of the plain view doctrine.