The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-469
D.C. No.
Plaintiff - Appellee,
2:21-cr-075-RSL
v.
OPINION
JOHN HOLCOMB,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge
Argued and Submitted September 10, 2024
Seattle, Washington
Filed March 27, 2025
Before: Susan P. Graber and Jennifer Sung, Circuit Judges,
and Jed S. Rakoff, District Judge. *
Opinion by Judge Rakoff;
Partial Concurrence and Partial Dissent by Judge Sung
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 USA V. HOLCOMB
SUMMARY **
Criminal Law
The panel reversed the district court’s ruling on John
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 panel held (1) the “dominion and control” provision
of a second warrant to search Holcomb’s computer was
invalid because it was both overbroad and insufficiently
particular; (2) the good-faith exception does not apply to the
examiner’s search of the computer; and (3) the plain view
doctrine does not independently justify the examiner’s
seizure of the videos.
Judge Sung concurred in part and dissented in part. She
concurred with the holding that the dominion and control
provision is overbroad and insufficiently particular, but
would find that the provision is severable from the remainder
of the warrant. Because the record is not clear enough to
make the necessary findings of fact in the first instance, she
would remand for a determination whether the videos were
permissibly seized pursuant to a lawful provision in the
warrant, a threshold inquiry that also impacts the analysis of
the good faith exception and plain view doctrine.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. HOLCOMB 3
COUNSEL
Matthew P. Hampton (argued), Teal L. Miller, and Jonas B.
Lerman, Assistant United States Attorneys; Laura Harmon,
Special Assistant United States Attorney, Criminal Division;
Tessa M. Gorman, United States Attorney; Office of the
United States Attorney, United States Department of Justice,
Seattle, Washington; Jehiel I. Baer, McNaul Ebel Nawrot &
Helgren PLLC, Seattle, Washington; for Plaintiff-Appellee.
Colin A. Fieman (argued) and Gregory Geist, Assistant
Federal Public Defenders; Alan Zarky, Research and
Writing Attorney; Office of the Federal Public Defender,
Seattle, Washington; for Defendant-Appellant.
John C. Ellis Jr., Law Offices of John C. Ellis Jr. Inc., San
Diego, California, for Amici Curiae Digital Forensic
Examiners.
Jennifer S. Granick, Immigrants Rights Project, American
Civil Liberties Union Foundation, San Francisco, California;
Brett M. Kaufman, American Civil Liberties Union
Foundation, New York, New York; Jazmyn Clark,
American Civil Liberties Union of Washington Foundation,
Seattle, Washington; for Amici Curiae American Civil
Liberties Union and American Civil Liberties Union of
Washington Foundation.
David B. Owens and Rachel Nowlin-Sohl, Attorneys;
Averill L. Aubrey, Megan Haygood, Kayleigh McNiel, and
Michael C. Orehek, Law Students; Civil Rights and Justice
Clinic, University of Washington School of Law; for Amici
Curiae Fourth Amendment Scholars.
4 USA V. HOLCOMB
OPINION
RAKOFF, District Judge:
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.”
I.
In the early hours of January 28, 2020, officers of the
Burlington Police Department, responding to a 911 call,
came to the house of defendant John Holcomb. Holcomb
lived at the house with his then-girlfriend Jill Liddle. When
officers arrived at the scene, they spoke with Holcomb, who
stated that he had recently rescued his ex-girlfriend, “J.J.,”
from sex slavery and that he had brought her to his house.
Holcomb told officers that J.J. was “acting crazy” and that
he wanted her to leave.
Officers then spoke with J.J., who claimed that Holcomb
had sexually assaulted her. She stated that she and Holcomb
had engaged in sexual relations the day before in his
bedroom, during which Holcomb took photographs of her on
his cellphone without her consent and uploaded them onto
his computer. Later that evening, J.J. agreed to perform oral
sex on Holcomb in his bedroom, but when she later indicated
that she wanted to stop, Holcomb pushed her head down and
forcibly inserted his finger into her anus, causing her
significant pain. J.J. further claimed that, after being
restrained by Holcomb against her will, she had finally
USA V. HOLCOMB 5
managed to break free, had said “I’m done,” and had left the
bedroom crying.
Officers proceeded to investigate the alleged sexual
assault. That same day, they obtained a search warrant for
Holcomb’s house that authorized them to seize, but not
search, his cellphone and computer. 1 When they executed
that warrant, they discovered that Holcomb’s computer was
attached to a surveillance system, which included a video
camera in his bedroom. Later that evening, officers returned
to Holcomb’s house and arrested him for rape.
Upon his arrest, Holcomb insisted that the sexual
encounter was consensual and that a surveillance video on
his computer would prove his innocence. Liddle, who was at
the house when Holcomb was arrested, confirmed
Holcomb’s account. She explained that she had watched the
video on Holcomb’s computer before the police seized it and
that it showed that his encounter with J.J. was consensual.
Holcomb consented to a search of his computer, provided
officers with his computer password, and told them how to
find and play the video. However, just six days later, before
officers had reviewed the video, Holcomb informed officers
that he wished to withdraw his consent to search his
computer.
On February 4, 2020, the state sought, and the Skagit
County Superior Court granted, a warrant (the “second
warrant”) to search Holcomb’s computer. That warrant
1
Holcomb does not challenge the validity or execution of this first
warrant.
6 USA V. HOLCOMB
authorized the Government to “search for and seize” five
categories of evidence, as follows:
(1) “Evidence of communications to or from
J.J. and/or between JOHN HOLCOMB.
[] This communication includes but is not
limited to voicemails/audio recordings,
SMS, MMS, emails, chats, social media
posts/online forums, contact lists and call
logs from June 1, 2019 to current.
(2) Surveillance video or images depicting
JJ or JOHN HOLCOMB and any other
surveillance video or images from
Jan[uary] 26th 2020 to current.
(3) Any location data including GPS
coordinates from Jan[uary] 26th 2020 to
current.
(4) User search history from the devices to
include but not limited to searched words,
items, phrases, names, places, or images
from Jan[uary] 26[th] 2020 to current.
(5) Files[,] artifacts or information including
but not limited to[] documents,
photographs, videos, e-mails, social
media posts, chats and internet cache that
would show dominion and control for the
devices.
Although the first four provisions of the second warrant were
limited to the time period surrounding the alleged sexual
USA V. HOLCOMB 7
assault in 2020, 2 the fifth provision, which concerned
“dominion and control” of Holcomb’s devices, did not
contain any temporal limitation.
After the court granted the second warrant, a digital
forensic examiner began a search of Holcomb’s computer,
which contained thousands of files stored across separate
upper and lower hard drives. The upper and lower hard
drives contained files created during different time periods.
While the upper hard drive contained newer files, including
surveillance footage from the camera in Holcomb’s bedroom
from January 2020, the lower hard drive contained older
files, all of which were created before September 2018.
Rather than use an available computer program that would
have allowed him to filter the computer’s files by date and
time or to otherwise limit his search to the period
surrounding the alleged assault, the examiner “pull[ed] up
all [the] videos” and “start[ed] just scrolling through
[them].”
The examiner soon found a video of Holcomb and J.J.
from January 27, 2020, in the computer’s upper hard drive.
That video featured several sexual encounters, including one
during which Holcomb took photographs of J.J. on his
cellphone and another during which J.J. performed oral sex
on Holcomb. During the latter encounter, Holcomb did not
appear to restrain J.J., and J.J. did not appear to leave the
room crying. However, Holcomb did “touch [J.J.’s] butt,”
and J.J. did say “I’m done.” Although the examiner had not
yet completed his search of the computer, he showed the
2
Unlike the second, third, and fourth provisions, the first provision
covered evidence from “June 1, 2019 to current” in order to account for
a period during which Holcomb and J.J. exchanged messages to plan
their January 2020 meeting.
8 USA V. HOLCOMB
video to the prosecuting attorney and a detective. After
viewing the video together, the three men agreed that the
encounter appeared to have been consensual. The detective
then directed the Washington State Patrol Crime Laboratory
to “stop all testing except for the required testing” because
he expected that the case would shortly be dismissed.
Notwithstanding that expectation, the examiner resumed
his search for footage of the alleged sexual assault, directing
his attention to the lower hard drive. During this search, he
viewed various videos that were uploaded years before the
alleged assault occurred, including several videos of
Holcomb and Liddle having consensual sex. He also
discovered three videos that appeared to depict child sexual
abuse. As he later explained, he first noticed a thumbnail for
a video from November 2016 that “appeared similar” to the
video of Holcomb and J.J. having sex from January 2020.
He opened that video, which showed Holcomb raping a pre-
pubescent girl, whom officers later identified as Holcomb’s
daughter. The examiner also observed, but did not open, two
additional videos from November 2016 with thumbnails that
appeared to depict pre-pubescent girls who were “posed for
sex.”
Based on the examiner’s observations, the Burlington
Police Department obtained a third warrant to search
Holcomb’s computer for child pornography. That warrant
authorized the Burlington Police Department to open and
view all three videos. After reviewing the three videos, the
Burlington Police Department dropped the sexual assault
charges against Holcomb, but the Island County Police
Department charged him with rape of a child and related
crimes. Holcomb moved to suppress the three videos.
Without responding to that motion, the Island County Police
Department dropped the charges against him. The Skagit
USA V. HOLCOMB 9
County Police Department then brought similar charges
against Holcomb. When Holcomb again moved to suppress
the videos, the Skagit County Police Department similarly
dropped its charges. Local authorities then referred the case
to the FBI.
On April 28, 2021, a federal grand jury indicted
Holcomb on one count of producing child pornography in
violation of 18 U.S.C. § 2251(a). Once again, Holcomb
moved to suppress the three videos. In doing so, he raised
various arguments about the validity of the “dominion and
control” provision of the second warrant and the
reasonableness of the search of his computer.
The district court initially granted Holcomb’s motion to
suppress. 3 Although the trial judge determined that probable
cause supported the second warrant, he concluded that the
dominion and control provision was both overbroad and
insufficiently particular because it lacked any temporal
limitation. The trial judge also concluded that the good-faith
exception did not apply because “the dominion and control
clause of the warrant was so facially deficient that no
executing officer could reasonably presume it to be valid.”
The Government, citing Messerschmidt v. Millender,
565 U.S. 535 (2012), moved for reconsideration, arguing
that the district court had articulated a new constitutional
3
It is undisputed that the second warrant issued by a state judge is,
pursuant to the Fourteenth Amendment, subject to the limitations on
searches and warrants set by the federal constitution. See Stonehill v.
United States, 405 F.2d 738, 743 (9th Cir. 1968) (discussing Mapp v.
Ohio, 367 U.S. 643 (1961) and Elkins v. United States, 364 U.S. 206
(1960)). Moreover, here, it was the federal government that made use of
the fruits of the second warrant to bring the federal prosecution of
Holcomb, so the Fourth Amendment would also come into play directly.
See n.6, infra.
10 USA V. HOLCOMB
rule that dominion and control provisions must be
temporally limited, and that, as a result, the “good-faith
doctrine” permitted the temporally-unlimited search of
Holcomb’s computer because the dominion and control
provision of the second warrant had authorized it and no
existing precedent forbade it. In response, Holcomb argued
that the Government had misread Messerschmidt and that it
in fact stood only for the limited proposition that officers
who obtain or rely on allegedly invalid warrants are not
entitled to qualified immunity when the good-faith exception
does not apply.
The district court granted the Government’s motion for
reconsideration. On the district court’s reading of
Messerschmidt, it was “unclear if the Supreme Court
intended the road between Leon’s good-faith exception and
qualified immunity to run both ways.” However, because the
Ninth Circuit appeared to embrace the Government’s
approach in United States v. Needham, 718 F.3d 1190 (9th
Cir. 2013), and because the district court was unaware of a
case specifically holding that dominion and control
provisions must be temporally limited, the district court
concluded that the good-faith exception applied and
therefore denied Holcomb’s motion to suppress. In reaching
that conclusion, however, the district court reaffirmed its
prior holding that the dominion and control provision was
overbroad and insufficiently particular, emphasized that
“[t]he state of the law [was] admittedly opaque,” and stated
that “district courts would be well-served by a Ninth Circuit
opinion addressing the issues [raised] in [the case].”
After the district court granted the Government’s motion
for reconsideration, Holcomb pleaded guilty to producing
child pornography pursuant to a plea agreement. In his plea
agreement, he reserved the right to appeal the district court’s
USA V. HOLCOMB 11
order denying his motion to suppress. The district court then
sentenced Holcomb to a term of 240 months of
imprisonment, to be followed by a lifetime of supervised
release. This appeal followed.
II.
We review the denial of a motion to suppress evidence
de novo. 4 United States v. Holmes, 121 F.4th 727, 734 (9th
Cir. 2024). The district court’s factual findings are reviewed
for clear error, while pure questions of law and mixed
questions of law and fact are reviewed de novo. See United
States v. Estrella, 69 F.4th 958, 964 (9th Cir. 2023), cert.
denied, 144 S. Ct. 1049 (Mem) (2024).
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
4
Unless otherwise indicated, case quotations omit internal alterations,
brackets, citations, ellipses, and quotation marks.
12 USA V. HOLCOMB
that the plain view doctrine does not independently justify
the examiner’s seizure of the videos.
A.
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.
Officers sought to obtain and review footage of one sexual
encounter between Holcomb and J.J. from Holcomb’s
computer to determine whether it supported J.J.’s account of
the alleged sexual assault. Regardless of who owned or
controlled that computer, that footage would reveal whether
their encounter was consensual. Moreover, even if dominion
and control had been relevant in this unusual situation,
Holcomb never disputed that the computer belonged to him.
Indeed, he initially provided officers with his computer
password and instructed them on how to find and view the
footage stored on it. The Government speculates that
dominion and control evidence was nevertheless relevant
because Holcomb, Liddle, or someone else may have altered
or deleted footage from the computer or tampered with the
date and time stamps associated with the footage or other
files. However, there was no evidence to suggest that anyone
tampered with Holcomb’s computer in any way. And if the
examiner had found evidence to that effect, then the state
easily could have sought another warrant to investigate
further. 5
5
We have previously observed that “[c]omputer files are easy to disguise
or rename” and have therefore not required the government to “trust the
suspect’s self-labeling when executing a [search] warrant.” United States
v. Adjani, 452 F.3d 1140, 1150 (9th Cir. 2006); see also United States v.
USA V. HOLCOMB 13
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. 6 The Fourth
Amendment provides that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
person or things to be seized.” U.S. Const. amend. IV. 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
Hill, 459 F.3d 966, 977–78 (9th Cir. 2006) (similar). However, naming
and labeling conventions, like those discussed in Adjani and Hill, are
distinct from date and time stamps, which are at issue here. Although a
sophisticated computer user can technically alter the date and time
associated with a computer file, she cannot change that file’s internal
metadata, which will always accurately reflect the actual date and time
that file was created. As amici explain, digital forensic examiners can
readily discern the actual date and time that a file was created, as well as
a suspect’s efforts to disguise that date and time. See Brief for Digital
Forensic Examiners as Amici Curiae Supporting Defendant-Appellant,
United States v. Holcomb (No. 23-469), at 7–12. That it was technically
possible that someone could have altered the dates and times associated
with Holcomb’s files is insufficient to establish that dominion and
control evidence was relevant to the investigation and prosecution in this
case. And, in any event, the Government never offered any evidence to
suggest that anyone had in fact altered the date and time stamps
associated with Holcomb’s files.
6
As previously noted, the Fourth Amendment is, in relevant part, made
binding on the states by the Fourteenth Amendment. See Stonehill, 405
F.2d at 743. In any case, the Fourth Amendment would apply to a federal
prosecution based on a state warrant. See, e.g., United States v. Jobe, 933
F.3d 1074, 1076–78 (9th Cir. 2019); United States v. Bynum, 362 F.3d
574, 578–79 (9th Cir. 2004); United States v. Washington, 797 F.2d
1461, 1467–71 (9th Cir. 1986).
14 USA V. HOLCOMB
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.” Ashcroft v. al-Kidd, 563 U.S. 731,
742–43 (2011); see also United States v. Kahre, 737 F.3d
554, 566 (9th Cir. 2013) (per curiam) (“The prohibition of
general warrants imposes a particularity limitation, requiring
warrants to specify the items to be seized and the locations
to be searched.”). “[G]iven the vast amount of data” stored
on computers, a “heightened” specificity requirement
applies “in the computer context.” United States v. Adjani,
452 F.3d 1140, 1149 (9th Cir. 2006). “Evidence seized
pursuant to illegal general warrants must be suppressed.”
United States v. Espinosa, 827 F.2d 604, 610 (9th Cir. 1987).
Starting with overbreadth, the Government has failed to
identify any meaningful limitation on the scope of the
dominion and control provision. As noted above, the
dominion and control provision authorized the state to seize
“[f]iles[,] artifacts or information including but not limited
to[] documents, photographs, videos, e-mails, social media
posts, chats and internet cache that would show dominion
and control for the [computer].” 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
USA V. HOLCOMB 15
and examine any file from any time period, including files
that long predated the alleged assault. The Government
conceded as much at oral argument, stating that “almost any
file could be opened to determine if it was responsive” to the
dominion and control provision.
In actuality, the affidavit underlying the second warrant
set forth no grounds to find probable cause to conduct a
search—much less a limitless search—for dominion and
control evidence. In fact, apart from the portion of the
affidavit restating the dominion and control provision, the
affidavit does not otherwise mention dominion or control. 7
To the extent that the affidavit alludes to dominion and
control at all, it simply recounts how Holcomb initially
7
By contrast, each of the other provisions of the second warrant was tied
to allegations in the affidavit. As for the first provision, which concerned
communications between Holcomb and J.J. in the months leading up to
the alleged assault, the affidavit explains that J.J. told officers that she
had been communicating with Holcomb using various apps and websites
for several months, that J.J. showed officers some of their messages on
her phone, and that officers observed that similar messages were “plainly
visible” on Holcomb’s open computer when they recovered it pursuant
to the first search warrant. As for the second provision, which concerned
surveillance footage depicting Holcomb or J.J. on the day of and after
the alleged assault, the affidavit describes Holcomb’s “active
surveillance system,” which officers discovered while executing the first
search warrant. As for the third provision, which concerned location data
from the day of and after the alleged assault, the affidavit states that
officers had already seized Holcomb’s cellphone pursuant to the first
search warrant, that people tend to keep their cellphones on their persons,
and that cellphones can therefore be used to obtain location data. And
finally, as for the fourth provision, which concerns Holcomb’s search
history on the day of and after the alleged assault, the affidavit stated that
officers observed various search results on Holcomb’s open computer
and that evidence of a defendant’s search history “can be used to
corroborate or refute the details of [an] . . . alibi or the statements of a
victim or witness.”
16 USA V. HOLCOMB
“provided written permission to search for both his desktop
and laptop computers,” how Holcomb “advised police that
he revoked his previous consent to search both his
computers,” and how the Government was “therefore
applying for a search warrant in order to search [the]
devices.” Excerpts of Record 134 (emphases added). At
most, these statements suggest that Holcomb had dominion
and control over the computer. They do not establish
probable cause to review all the files on Holcomb’s
computer to determine if they might bear on the issue of
dominion and control. 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.” United States v. Hurt, 795
F.2d 765, 772 (9th Cir. 1986), amended on denial of reh’g,
808 F.2d 707 (9th Cir. 1987). 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.
It is true that in assessing whether a warrant provision is
sufficiently particular, we also consider whether it would
have been “reasonable” for the Government to “provide a
more specific description of the items [to be searched] at that
juncture of the investigation.” United States v. Banks, 556
F.3d 967, 973 (9th Cir. 2009); see also United States v.
Cardwell, 680 F.2d 75, 78 (9th Cir. 1982) (“Generic
USA V. HOLCOMB 17
classifications in a warrant are acceptable only when a more
precise description is not possible.”). Here, the Government
was well aware of the relevant time period, as it was
investigating a single incident that took place in a particular
location on a specific date. Every provision of the second
warrant except for the dominion and control provision
therefore was limited to the period surrounding that incident.
The Government has failed to put forth a persuasive reason
why the dominion and control provision could not be
similarly limited to that period. Accordingly, we 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. Although the other provisions of the warrant sought
to limit the warrant’s scope to narrow categories of evidence
that were relevant to the alleged sexual assault of J.J. and for
which there was probable cause to search, the dominion and
control provision effectively allowed the Government to
engage in the sort of “exploratory rummaging in a person’s
belongings” that the Fourth Amendment’s warrant
requirement was intended to prevent. United States v.
Wright, 667 F.2d 793, 797 (9th Cir. 1982) (quoting Coolidge
v. New Hampshire, 403 U.S. 443, 467 (1971)). Indeed, the
examiner viewed footage uploaded years before the alleged
assault, including several intimate videos of Holcomb and
Liddle.
The partial dissent would hold that the dominion and
control provision is severable from the rest of the second
warrant. Indeed, we have “embraced the doctrine of
severance, which allows us to strike from a warrant those
portions that are invalid and preserve those portions that
18 USA V. HOLCOMB
satisfy the Fourth Amendment.” United States v. Flores, 802
F.3d 1028, 1045 (9th Cir. 2015). If, after striking invalid
provisions of a warrant, we conclude that others are valid,
then evidence seized pursuant to the valid provisions need
not be suppressed. See United States v. Gomez-Soto, 723
F.2d 649, 654 (9th Cir. 1984). In this case, the Government
has argued only that “[t]he child-rape videos were dominion-
and-control evidence.” The Government has never asked us,
or the district court, to conduct a severability analysis.
Therefore, any such argument is waived or forfeited. See
United States v. Holmes, 121 F.4th 727, 739 (9th Cir. 2024)
(holding that arguments not raised to the district court are
forfeited); Bolin v. Davis, 13 F.4th 797, 809 n.4 (9th Cir.
2021) (holding that arguments not raised in a party’s opening
brief are forfeited).
The partial dissent insists that the Government preserved
a severability argument by arguing in the alternative that the
examiner could have found the three videos depicting child
sexual abuse pursuant to the second warrant’s separate
surveillance footage provision, which authorized the
Government to search for and seize “[s]urveillance video or
images depicting JJ or JOHN HOLCOMB and any other
surveillance video or images from Jan[uary] 26th 2020 to
current.” We disagree. On its face, the surveillance footage
provision is limited to material created on and after January
26, 2020, and each of the three videos was uploaded in
November 2016. The Government nevertheless argues that
the surveillance provision’s temporal limitation “limited
what the police could seize, not what they could search.”
However, that argument also contravenes the text of the
surveillance footage provision, which explicitly allowed the
state to “search for and seize” surveillance footage evidence.
Moreover, that argument implicitly recognizes that, if the
USA V. HOLCOMB 19
temporal limitation had applied to the search, as well as to
the seizure of any evidence, then the surveillance footage
provision would not have authorized the search of files from
November 2016. Because we do not agree that the date-
restricted surveillance footage provision allowed for an
unrestricted search for surveillance footage, we do not
accept the Government’s surveillance provision argument as
a meaningful argument in the alternative that served to
preserve a separate severability argument.
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. The only alleged crime that
justified the issuance of the second warrant was the alleged
sexual assault on January 27, 2020. The second warrant
limited all search categories except dominion and control to
the period surrounding the alleged sexual assault. Search for
communications was limited to the period on or after June 1,
2019, while search for surveillance footage, location data,
and search history was limited to the period on or after
January 26, 2020. The search of the upper hard drive
uncovered the relevant video of the sexual encounter on
January 27, 2020. The later search that yielded the three
videos depicting child sexual abuse appeared on the lower
hard drive, which contained only materials created before
September 2018. Accordingly, the only provision of the
warrant that could have justified the search of the lower hard
drive was the dominion and control provision—the only
portion of the warrant that allowed for an unlimited search
for evidence from before the period surrounding the alleged
sexual assault.
20 USA V. HOLCOMB
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.8 As we have
explained, “[t]he specificity required in a warrant varies
depending on the circumstances of the case and the type of
items involved.” United States v. Spilotro, 800 F.2d 959, 963
(9th Cir. 1986). As indicated above, we have stated that
warrants describing “generic categories of items” are “not
necessarily invalid if a more precise description of the items
subject to seizure is not possible.” Id. Consistent with these
principles, we have upheld search warrants, including search
warrants for computers, that contained broad provisions
lacking temporal limitations. See, e.g., United States v.
Schesso, 730 F.3d 1040, 1046–47 (9th Cir. 2013); Adjani,
452 F.3d at 1147–50; United States v. Lacy, 119 F.3d 742,
746 (9th Cir. 1997). 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
8
Nor do we mean to suggest that the Government must always exercise
time-limited warrant provisions in a particular way. In this case, the
parties dispute whether the examiner was required to use date and time
filters to ensure that he did not open any files produced outside the period
for which there was probable cause to search. Our holding concerns only
the impermissible scope of the second warrant, not the means by which
the Government sought to execute it, so we do not reach that issue.
USA V. HOLCOMB 21
provision to function as a general warrant. The Fourth
Amendment forecloses that result. See United States v.
Bridges, 344 F.3d 1010, 1014 (9th Cir. 2003) (“The [Fourth]
Amendment is to be liberally construed and all owe the duty
of vigilance for its effective enforcement lest there shall be
impairment of the rights for the protection of which it was
adopted.”).
B.
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. United
States v. Barnes, 895 F.3d 1194, 1201 (9th Cir. 2018).
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
22 USA V. HOLCOMB
place to be searched or the things to be
seized—that the executing officers cannot
reasonably presume it to be valid.
Id. In each of these situations, an officer “will have no
reasonable grounds for believing that the warrant was
properly issued. Id.
All four exceptions to good-faith reliance are well-
established in our case law, but the overall standard
governing the “objectively reasonable reliance” inquiry is
not. The Government argues that, under the Supreme Court’s
decision in Messerschmidt, the standard governing the
“objectively reasonable reliance” inquiry is the same as the
“reasonable officer” standard in the qualified immunity
context. See Longoria v. Pinal County, 873 F.3d 699, 704
(9th Cir. 2017) (discussing the qualified immunity doctrine).
As our qualified immunity cases make clear, an officer is
immune from civil suit where the plaintiff’s rights were not
“clearly established” at the time of his alleged misconduct.
Ballentine v. Tucker, 28 F.4th 54, 64 (9th Cir. 2022). “To be
clearly established, the contours of the right must be
sufficiently clear that a reasonable official would understand
that what he [was] doing violate[d] that right.” Id. “While
there need not be a case directly on point, existing precedent
must have placed the statutory or constitutional question
beyond debate.” Id. Application of qualified immunity
therefore hinges on the existence of analogous Supreme
Court or Ninth Circuit precedent.
Holcomb, for his part, contests the Government’s
reading of Messerschmidt. Although he acknowledges that
there is a “relationship” between the good-faith doctrine and
the qualified-immunity doctrine, he insists that it goes “only
in one direction.” In his view, while an officer who acts in
USA V. HOLCOMB 23
good faith is entitled to qualified immunity from civil suit,
that fact has no bearing on whether the officer acted in good
faith for purposes of adjudicating a motion to suppress in a
criminal case. Rather than apply the heightened qualified
immunity standard to determine whether the defendant’s
rights were “clearly established” at the time of the violation,
courts simply should ask whether a reasonably well-trained
officer would have understood the warrant to be invalid. See
United States v. King, 985 F.3d 702, 710 (9th Cir. 2021)
(“The central question is whether a reasonably well trained
officer would have known that the search was illegal despite
the magistrate’s authorization.”).
The parties’ disagreement over the appropriate standard
arises from uncertainty surrounding the relationship between
Messerschmidt and two of our own cases. Messerschmidt
was a qualified immunity case. The plaintiff brought a
section 1983 claim against two police officers, alleging that
they had violated his Fourth Amendment rights by executing
an invalid search warrant. See Messerschmidt, 565 U.S. at
544. The Supreme Court was tasked with determining
whether the officers were nevertheless entitled to qualified
immunity. Id. at 546. The plaintiff argued that the officers
were not entitled to qualified immunity because the warrant
was not supported by probable cause and no reasonable
officer could have presumed that the warrant was valid. See
id. at 548. Reversing an en banc panel of this court, the
Supreme Court disagreed, reasoning that, “[e]ven if the
warrant . . . were invalid, it was not so obviously lacking in
probable cause that the officers [could] be considered plainly
incompetent for concluding otherwise.” Id. at 556. In
reaching that conclusion, the Supreme Court observed in a
footnote that “the same standard of objective reasonableness
that [it had] applied in the context of a suppression hearing
24 USA V. HOLCOMB
in Leon defines the qualified immunity accorded an officer
who obtained or relied on an allegedly invalid warrant.” Id.
at 546 n.1.
The following year, we decided United States v.
Needham, 718 F.3d 1190 (9th Cir. 2013). In that case, the
defendant appealed the denial of his motion to suppress,
arguing, among other things, that the district court had erred
in applying the good-faith exception. See id. at 1193–94.
Quoting Messerschmidt, we stated that “the same standard
of objective reasonableness that the United States Supreme
Court applied in the context of a suppression hearing in Leon
defines the qualified immunity accorded to an officer who
obtained or relied on an allegedly invalid warrant.” Id. at
1194 (quoting Messerschmidt, 565 U.S. at 546 n.1). “It
therefore follows,” we continued, “that if an officer is
granted qualified immunity in a civil suit for relying on a
warrant alleged to be lacking probable cause, then reliance
on the existence of probable cause in that warrant must also
have been objectively reasonable under the Leon doctrine.”
Id. Because we had recently held that officers were entitled
to qualified immunity in a case strongly resembling
Needham, we concluded that the district court had not erred
in denying the defendant’s motion to suppress. See id. at
1194–95 (discussing Dougherty v. City of Covina, 654 F.3d
892 (9th Cir. 2011)). Simply put, because the officers would
have been entitled to qualified immunity, the good-faith
exception applied. In explaining our reasoning, we repeated
that “the standard for granting qualified immunity is the
same as the standard for objective reasonableness under
Leon.” Id. at 1195.
More recently, however, in Manriquez v. Ensley, 46
F.4th 1124 (9th Cir. 2022), we specifically distinguished the
good-faith and qualified-immunity doctrines. After
USA V. HOLCOMB 25
conducting a search of a suspect’s motel room pursuant to a
search warrant, officers called the magistrate judge who had
issued the warrant and asked her to expand its scope to
include the suspect’s home address. See id. at 1127–28. The
magistrate judge agreed and instructed the officers to
physically amend the warrant to include the new address
before conducting the search. See id. at 1128. The officers
disregarded that instruction and proceeded to search the
suspect’s house without amending the warrant. See id. When
the defendant later filed a section 1983 claim alleging that
the officers had violated his Fourth Amendment rights, the
Government argued that the officers had acted in good faith
and were therefore entitled to qualified immunity. See id. at
1127–29.
We agreed in part and disagreed in part. Because any
reasonable officer would have noticed that the warrant did
not authorize a search of the house, we concluded that the
good-faith exception did not apply. See id. at 1130 & n.1.
However, given the “novel facts” of the case, we further
concluded that the officers had violated a right that was not
“clearly established” at the time of the search and were
therefore entitled to qualified immunity. Id. at 1130. In
reaching these conclusions, we observed in a footnote,
without discussing or even citing Needham, that “[w]hile
there is admittedly substantial overlap” between the
reasonableness analysis in the good-faith and qualified-
immunity contexts, “the qualified immunity standard is
more forgiving than the requirements of the Fourth
Amendment.” Id. at 1130 n.1. We added that, although “a
court may hold that an officer’s search does not fall within
the good-faith exception based on analogous case law or
even directly relevant authority from a sister
26 USA V. HOLCOMB
circuit[,] . . . there still might not be clearly established case
law in our circuit to withstand qualified immunity.” Id.
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. See Antonio v. Wards
Cove Packing Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987)
(en banc).
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. Most notably, in United States v. Kow, 58 F.3d 423
(9th Cir. 1995), a case involving charges of tax fraud and
profit skimming, we considered the validity of a search
warrant that authorized the Government to seize fourteen
separate categories of business records. Pursuant to that
warrant, the Government seized “essentially all of the
[defendant] business’s records, computer hardware and
software, files, ledgers, and invoices.” Id. at 425. We held
that the warrant was overbroad and insufficiently particular
because the Government “did not limit the scope of the
seizure to a time frame within which the suspected criminal
activity took place,” even though the Government was aware
USA V. HOLCOMB 27
of the relevant time period when it sought the warrant. Id. at
427; see also United States v. Banks, 556 F.3d 967, 973 (9th
Cir. 2009) (explaining that Kow “invalidat[ed] a warrant
where the affidavit indicated that the criminal activity began
at a specific time period but the warrant was not limited to a
particular time frame”); United States v. Noushfar, 78 F.3d
1442, 1447 (9th Cir. 1996) (similarly explaining that Kow
invalidated a warrant on overbreadth grounds because the
warrant “set no time limits and allowed seizure of essentially
all the business’s records, computer hardware and software,
files, ledgers, and invoices”). Although the warrant in Kow
delineated various categories of evidence, it “contained no
limitations on which documents within each category could
be seized or suggested how they related to criminal activity”
and therefore the warrant was “indistinguishable from the
general warrants repeatedly held by this court to be
unconstitutional.” Kow, 58 F.3d at 427 (citing Ctr. Art
Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 750
(9th Cir. 1989), and United States v. Stubbs, 873 F.2d 210,
211 (9th Cir. 1989)).
In Kow, moreover, while the Government argued that its
officers had nevertheless acted in “objectively reasonable
reliance” on the warrant, we were not persuaded. In rejecting
the Government’s argument, we explained that “[w]e have
been vigilant in scrutinizing officers’ good faith reliance
on . . . illegally overbroad warrants.” Id. at 428. Therefore,
“when a warrant is facially overbroad, absent specific
assurances from an impartial judge or magistrate that the
defective warrant is valid despite its overbreadth, a
reasonable reliance argument fails.” Id. at 429 (emphasis in
original). Because “[t]he [Kow] warrant should have been
limited by time, location, and relationship to specifically
described suspected criminal conduct,” it was “wholly
28 USA V. HOLCOMB
deficient” and could not be salvaged by the good-faith
exception. Id. at 430.
More recently, in SDI, we drew on our reasoning in Kow
to invalidate several provisions of a search warrant as
overbroad. In SDI, the Government sought to investigate
allegations of Medicare fraud associated with a series of
sham sleep studies. See SDI, 568 F.3d at 691–92. As part of
its efforts to investigate the fraud scheme, the Government
executed a search warrant authorizing the seizure of various
categories of documents. See id. at 693. We determined that
five of those categories were invalid because they lacked
limitations that would have restricted the scope of the
Government’s search to the relevant studies. See id. at 704–
05. For example, one of the five categories was for
“[d]ocuments relating to non-privileged internal memoranda
and E-mail.” Id. at 704. Because internal memoranda
“typically cover” a wide array of subjects, we concluded that
the Government’s failure to “limit the search team’s reach to
internal memoranda related to the sleep studies” constituted
“an invitation to a general, exploratory rummaging in a
person’s belongings” and, therefore, violated the Fourth
Amendment. Id. at 704–05. We similarly concluded that
various other categories authorizing the seizure of
documents relating to bank and payroll records were
unconstitutionally overbroad because, “by failing to describe
the crimes and individuals under investigation,” they
“provided the search team with discretion to seize records
wholly unrelated to the finances of [the defendants].” Id. at
705. As in Kow, we determined that the good-faith exception
was inapplicable because the offending provisions were
overbroad under our existing precedents. See id. at 706.
Together, Kow, SDI, and the cases on which they rely
stand for two clearly established principles. First, when
USA V. HOLCOMB 29
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.
In this case, the officers had probable cause to search for
evidence concerning Holcomb’s alleged assault of J.J. in
January 2020, but the second warrant authorized them to
search for evidence of dominion and control without
limitation. Pursuant to the clearly established law of this
circuit, the dominion and control provision thereby rendered
the second warrant a facially deficient general warrant.
Therefore, even assuming that the Government’s reading of
Messerschmidt is correct, we 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.
C.
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.” United States v.
Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005). The burden
of demonstrating that both requirements are satisfied lies
with the Government. See United States v. Chesher, 678
F.2d 1353, 1356 (9th Cir. 1982). In this case, the
30 USA V. HOLCOMB
Government argues that both requirements are satisfied
because the second warrant authorized officers to examine
all of Holcomb’s files to determine whether they fell under
one of the warrant’s provisions and because the illegality of
videos was immediately apparent, as evidenced by the
examiner’s conclusion that two of the three videos depicted
child sexual abuse based solely on their thumbnails.
We disagree. 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.” Spilotro, 800 F.2d at 968.
The Government thus fails to satisfy the first requirement of
the plain view doctrine.
* * *
For the reasons stated above, the district court’s ruling
on Holcomb’s motion to suppress is REVERSED,
Holcomb’s conviction and sentence are VACATED, and the
case is REMANDED for further proceedings consistent
with this opinion.
USA V. HOLCOMB 31
SUNG, Circuit Judge, concurring in part and dissenting in
part:
I concur with the holding that the dominion and control
provision is constitutionally infirm because it is overbroad
and insufficiently particular. However, I would find that the
dominion and control provision is severable from the
remainder of the warrant. “Our conclusion that [one
provision] is impermissibly general does not, however,
require invalidation of the entire…warrant. This court has
embraced the doctrine of severance, which allows us to
strike from a warrant those portions that are invalid and
preserve those portions that satisfy the fourth amendment.
Only those articles seized pursuant to the invalid portions
need be suppressed.” United States v. Gomez-Soto, 723 F.2d
649, 654 (9th Cir. 1984), see also United States v. Spilotro,
800 F.2d 959, 967 (9th Cir. 1986) (“In this circuit we follow
the rule that where invalid portions of a warrant may be
stricken and the remaining portions held valid, seizures
pursuant to the valid portions will be sustained.”). Here, only
one of the warrant’s five provisions is overbroad and
insufficiently particular, and it is therefore “practicable” to
sever the dominion and control provision and “uphold the
portion that remains.” Gomez-Soto, 723 F.2d at 654.
Compare Spilotro, 800 F.2d at 967 (declining to apply the
severance doctrine because only an insignificant, ancillary
portion of the warrant was sufficiently specific and
particular); United States v. Kow, 58 F.3d 423, 428 (9th Cir.
1995) (declining to apply the severance doctrine because
32 USA V. HOLCOMB
only one of the warrant’s fourteen provisions was arguably
not overbroad). 1
I respectfully disagree with the majority’s conclusion
that “it is clear that the examiner discovered the disputed
evidence pursuant to the dominion and control provision
alone.” Majority Opinion at 19. It is undisputed that the
search warrant authorized the police to examine the
Defendant’s computers to look for surveillance videos of the
alleged sexual assault. According to a police report, the
detective tasked with searching the computers first found
surveillance videos of Defendant and J.J. that were relevant
to the sexual assault investigation and within the scope of the
valid provisions of the search warrant. The detective was
then advised to “continue processing the other hard drives as
per standard procedures and to continue looking for
additional surveillance videos or angles that may be
present.” “[W]hile he was still busy processing the hard
drives for the video evidence in [the sexual assault] case,”
the detective saw a “thumbnail image” of a video that was
“a black and white video file which appeared similar” to the
first surveillance video. The detective further stated that
“when he first saw the video file as a thumbnail image, he
believed it to contain additional surveillance video from the
[defendant’s] residence which is why he played it.” It was
1
The majority argues that because the Government “has argued only that
‘[t]he child-rape videos were dominion-and-control evidence’” and did
not ask the court to conduct a severability analysis, it waived or forfeited
any severability argument. Majority Opinion at 18. I respectfully
disagree. The Government argued in the alternative that law enforcement
could have permissibly conducted the search pursuant to the provision
authorizing the seizure of surveillance videos. Addressing whether the
unlawful provision of the warrant is severable from the remainder is a
necessary antecedent to addressing the Government’s argument that the
search was permissible pursuant to the surveillance video provision.
USA V. HOLCOMB 33
only after viewing the video that the detective realized it was
not additional surveillance video of the alleged sexual
assault, but apparent child sex abuse material. The detective
also noted that this second video was “listed as having been
created” on a date outside the date range of the valid
provisions of the search warrant.
The government argues that, despite the apparent
creation date, the detective found the second video while
searching under the valid provisions of the warrant, and in
the alternative, that the detective could view the video under
the plain view exception. The majority rejects those
arguments, arguing that there are no circumstances under
which the detective could view the second video under the
valid provisions of the search warrant. The district court
likewise assumed that “[i]f the videos were located while
searching pursuant to a different clause of the warrant, the
search would have been unreasonable as outside the
temporal scope of the clause.”
In my view, the merits of the government’s arguments
depend on facts that should be determined after an
evidentiary hearing. The majority assumes that it would have
been clear to law enforcement that the lower hard drive only
contained materials created before September 2018, but that
is a question of fact that we cannot resolve in the first
instance. The reasonableness of the search also depends on
a number of other factors that are not fully developed on the
record before us, including the standard procedures used by
law enforcement to conduct digital forensic searches as of
February 2020; the actual protocol, if any, employed during
the search; the extent to which the video thumbnails
resembled the surveillance footage of J.J.; and whether the
file dates and metadata were readily ascertainable by law
enforcement. See United States v. Hurd, 499 F.3d 963, 966
34 USA V. HOLCOMB
(9th Cir. 2007) (“Whether a search exceeds the scope of a
search warrant is an issue we determine through an objective
assessment of the circumstances surrounding the issuance of
the warrant, the contents of the search warrant, and the
circumstances of the search.”) (cleaned up).
Whether law enforcement conducted the search pursuant
to the lawful provisions of the warrant is a threshold inquiry
that also impacts the analysis of the good faith exception and
plain view doctrine. See United States v. Rettig, 589 F.2d
418, 423 (9th Cir. 1978) (“Where evidence is uncovered
during a search pursuant to a warrant, the threshold question
must be whether the search was confined to the warrant’s
terms…[i]t must not be a general exploratory search.”)
(cleaned up). If, while searching for additional surveillance
videos, officers saw a thumbnail that appeared to depict
evidence related to J.J.’s allegations, they could validly
review the video to determine whether it was responsive to
the warrant. See United States v. Tamura, 694 F.2d 591, 595
(9th Cir. 1982) (“[A]ll items in a set of files may be inspected
during a search, provided that sufficiently specific guidelines
for identifying the documents sought are provided in the
search warrant and are followed by the officers conducting
the search.”); United States v. Adjani, 452 F.3d 1140, 1150
(9th Cir. 2006) (“The government should not be required to
trust the suspect’s self-labeling when executing a warrant.”).
Alternatively, the good faith exception could apply if
officers conducted the search in objectively reasonable
reliance on the lawful provisions of the warrant. See United
States v. Leon, 468 U.S. 897, 918 n. 19 (1984) (“Our
discussion of the deterrent effect of excluding evidence
obtained in reasonable reliance on a subsequently
invalidated warrant assumes, of course, that the officers
properly executed the warrant and searched only those
USA V. HOLCOMB 35
places and for those objects that it was reasonable to believe
were covered by the warrant.”); see also United States v.
Hill, 459 F.3d 966 (9th Cir. 2006) (upholding a broad search
of electronic devices), Adjani, 452 F.3d at 1140 (same).
Finally, the applicability of the plain view doctrine depends
on a factual determination of whether law enforcement was
“lawfully searching the area where the evidence is found,”
which is disputed by the parties. United States v. Stafford,
416 F.3d 1068, 1076 (9th Cir. 2005).
Because the record is not clear enough for us to make the
necessary findings of fact in the first instance, I would
remand to the district court to determine whether the videos
were permissibly seized pursuant to a lawful provision in the
warrant. See United States v. Clark, 31 F.3d 831, 836 (9th
Cir. 1994) (“We remand to the district court the limited
question of what evidence was obtained under the overbroad
portion of the warrant and direct the suppression of that
evidence.”).