US v. Karen Kimble (4th Cir, filed 5/2/17): Search and Seizure Issue– Agents Empowered to Take Cash If Reasonable Agent Would Have Thought It Covered by the Warrant (and even when the Agents thought it related to crime beyond the scope of the warrant).

This is a really interesting search issue, in my opinion, and confirms that hard cases sometimes make for bad law. I don’t think I agree with this decision, frankly, although it’s easy to see how the Court would not be inclined to suppress the fruits of this search.

Kimble was convicted after a bench trial during which the Government proved that she committed a number of schemes involving tax and visa application fraud, and aggravated identity theft.  Here’s how the series of events unfolded:  In 2007, Kimble participated in an immigration scheme with Tamim Mamah, a native of Ghana.  Mamah earlier attempted to get a green card by way of a fraudulent marriage.  When that didn’t work, Kimble filed, under the former wife’s name, for a divorce from Mamah. Then Kimble submitted a new green card application on Mamah’s behalf, using a marriage certificate listing herself as Mamah’s wife. During that same time frame, she also committed perjury when Mamah’s brother was charged in connection with heroin distribution.  She took the stand in that trial and essentially testified to facts she claimed she witnessed while in Africa. Only, she was not in Africa during that relevant time frame.  Then, Kimble offered herself as a tax preparer. She prepared taxes, but she inflated numbers, gave her clients different returns, and pocketed the difference to the total of $222,000 of skimmed monies. Very naughty behavior.

In July 2011, the Department of Homeland Security obtained a search warrant in connection with its investigation into Kimble’s marriage and immigration fraud and perjury.  In its affidavit, it asserted probable cause to believe her home contained evidence of perjury, marriage and immigration fraud, and false statements.  An attachment to that warrant stated that the search would enable the government to seize “[a]ny and all records and documents relating to the travel of [Defendant] to Ghana in 2006 including but not limited to… documents, correspondence, notes, statements, receipts or other records that reference or indicate fraudulent activity and items evidencing the obtaining, secretly, transferring, concealment and or expenditure illegal proceeds and currency to include cash.”

The agents executed a search warrant on July 29, 2011. At the beginning of the search, the agents asked Kimbel if she had any valuables in the house. She told him that she had some cash in a laundry basket. The agents searched the basket and found $41,000. When the agents asked her about the source of the funds, she told them that the money did not belong to her and that she had received the money from a stranger about a week earlier and that she was holding it for her husband. The officers were aware that her husband had been detained on a narcotics distribution charge, and so they took the money on suspicion that it derived from illegal drug activity.

Several months later Kimbel filed a claim to recover the seized funds. This time she told the officers that the money was proceeds of an insurance claim she filed after her home was damaged in a fire. Based on her changing account of the source of the funds, investigators subpoenaed her bank records in an attempt to confirm the source of the seized funds.  Once they reviewed those records, they found the numerous deposits from the IRS which they later figured out were the inflated refunds from her tax scheme.  In other words, they discovered her tax fraud, about which, until then, they had been unaware.

Kimbel was then indicted. She motioned the Court to suppress all the evidence obtained from the search of her house. Specifically, she argued that the government exceeded the scope of the warrant when it seized money it believed was related to drugs when the warrant itself only pertained to the perjury and immigration charges. Campbell argued that because the cash was improperly seized, any evidence obtained as a result of her efforts to reclaim that money amounted to the fruit of the illegal seizure and therefore was subject to exclusion at trial.

In this appeal, the Court assessed whether the government agents exceeded the scope of the search warrant. The court reviews the district courts legal conclusions regarding the scope of the warrant de novo and a factual findings underlying the conclusions for clear error.  United States v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009).

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and 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 persons or things to be seized.”  U.S. Const. amend. IV. The particularity requirement protects against a general, exploratory rummaging in a person’s belongings to the extent that a valid warrant leaves nothing to the discretion of the officers performing the search.  See United States v. Robinson, 275 F.3d 371 (4th Cir. 2001).

Here, Kimbel argued that the seizure of the cash violated the Fourth Amendment because the warrant permitted the agents to seize evidence relating only to her travel to Ghana, the subject of her perjured testimony. In support of this argument, she pointed to the language of Attachment B to the warrant which included the phrase “any and all records and documents relating to the travel of defendant to Ghana and 2006.”   She argued that the money, which the agents initially believed was linked to unrelated drug activity, exceeded the scope of the warrant because it could not have been related to her alleged perjury. The Court disagreed.   According to the Court, the scope of the search conducted pursuant to a warrant is defined objectively by the terms of the warrant in the oven and sought, not by the subjective motivations of an officer.  See United States v. Srivastava, 540 F.3d 277, 287 (4th Cir. 2008) (“In analyzing the constitutionality of a search warrant execution, we must conduct an objective assessment of the executing officers’ actions in light of the facts and circumstances confronting him at the time, rather than make a subjective a valuation of the officers’ actual state of mind at the time the challenged action was taken”).  In upholding the constitutionality of this search and seizure, the Court concluded that a reasonable officer could have found that the $41,000 could have constituted potential evidence of the marriage fraud, false statements, unlawful procurement of citizenship, or perjury charges.  In other words, it didn’t matter that the officers actually intended to exceed the scope of the warrant, so long as a reasonable agent would have thought these additional items were relevant to the search.  Therefore, the seizure did not exceed the scope of the warrant, and the district court correctly denied Kimbel’s motion to suppress.

The Court also addressed a sufficiency of the evidence claim relating to the tax and wire fraud charges.  The Court rejected those arguments as well.  Not a good outcome for Ms. Kimble, nor anyone else challenging the scope of a search warrant.  But here, some artwork from Nanart Agyemang, a Ghanian artist: