The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge
The defendant Kevin Smith is charged in an 11-count Second Superceding Indictment with seven counts of making a false claim for a tax refund, in violation of 18 U.S.C. § 287; one count of aiding and assisting the preparation and presentation of a false income tax return, in violation of 26 U.S.C. § 7206; and three counts of mail fraud, in violation of 18 U.S.C. § 1341. The case was referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 28 U.S.C. § 636(b)(1)(A), on November 4, 2005. On March 31, 2006, and again on May 12, 2006, the defendant moved, inter alia, to suppress evidence seized from his residence pursuant to a search warrant. On December 15, 2006, Magistrate Judge Schroeder issued a Report and Recommendation, recommending, inter alia, that defendant's motion to suppress be granted because the warrant at issue was overbroad.
Both the government and the defendant filed objections to the Report and Recommendation. Oral argument on the objections was held on April 18 and June 14, 2007. Additional briefing was completed on June 26, 2007.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from counsel, the Court adopts in part and declines to adopt in part the proposed findings of the Report and Recommendation.
1. Search Warrant was not Overbroad
The defendant argues that evidence seized pursuant to a search warrant executed at his residence located at 3554 West Oak Hill Road, Ellicott, New York, must be suppressed because, inter alia, the categories of records and things to be seized were overbroad, thereby violating the particularity requirement of the Fourth Amendment. The Court disagrees.
The Fourth Amendment requires that warrants "particularly describ[e]. . .the persons or things to be seized." U.S. Const. amend. IV. The particularity requirement "makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. 192, 196 (1927). The Second Circuit, "however, has recognized that these familiar words from Marron 'ha[ve] not always been applied literally . . . Courts tend to tolerate a greater degree of ambiguity where law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have ensured that all those facts were included in the warrant.'" United States v. Buck, 813 F.2d 588, 590 (2d Cir.), cert. denied, 484 U.S. 857 (1987) (quoting United States v. Young, 745 F.2d 733, 759 (2d Cir. 1984)). In order for a search warrant to comply with the particularity requirement of the Fourth Amendment, it must enable the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize. SeeSteele v. United States, 267 U.S. 498, 503 (1925) (citations omitted).
In this case, the search warrant for defendant's home allowed for the search and seizure of the following items:
1. Financial records, ledgers, bank checks, bank statements and similar documents reflecting receipt and disbursement of funds;
2. Business ledgers, receipts, invoices and bills;
3. Credit cards in various names with various institutions together with credit card applications, statements and receipts;
4. Correspondence to and from banks, credit card companies, insurance companies and/or ...