A friend was asking me about this. Since I wasn’t able to provide an answer, or at least the answer they were looking for, I’m putting it here. Assume state law is irrelevant, which it is. I’ve changed a few details.
So hypothetically, the police obtain a search warrant for a home that contains a business that’s not strictly legal. Let’s say they’re missing a permit, or something. They seize some property, and make some arrests. Hypothetically, the warrant says, “…you are ORDERED… to retain custody of any property seized pursuant to this Warrant…” It does not, however, order the police to seize anything.
So far what you’ve got is a defective warrant: one that does not “particularly describe” the things to be seized. (The 4th Amendment requires warrants to “particularly describe” the things to be seized.)
But, in some boilerplate language near the top of the warrant, the warrant “incorporates” the affidavit: “(which said Affidavit is here now made part hereof for all purposes)”. The affidavit, in turn, recites reams of material the police are hoping or expecting to find at the location (computers, recordings, email, books, letters, devices, etc.)
So the questions are:
Is a warrant sufficient, that does not order or authorize the seizure of anything, if an “incorporated” affidavit does, in fact, contain a list of things the police want to seize?
If it is sufficient, should we assume the magistrate meant to authorize everything that’s in the affidavit, or only some of them? How would we know?
Groh v Ramirez is not quite on point, unfortunately, because 1.) the warrant includes “incorporation” language; and 2.) the police say they had the affidavit with them, when they made the search, though they didn’t show it to anyone. It is pretty damn close, though.
My guess is it depends on the mood the judge is in, and it depends on how good each side’s lawyers are.
hence - talk to a real lawyer.
The case says “the warrant did not incorporate by reference the application’s itemized list” plus when the warrant was left, a copy of the affidavit was not included.
Of course, if the judge wants to be a stickler, a rambling affidavit may not qualify as an explicit itemized list depending on language. “Informant A says there is a collection of marijuana plants in the basement” is not exactly " We expect to find and seize - Item: indeterminate number of marijuana plants in pots and already picked plant parts". An affidavit saying “Joe is operating a plumbing business out of his home” does not say" Will seize - item - computer possibly used for plumbing business bookkeeping"… etc.
OTOH, if the judge is inclined to be lenient with the cops (or is the same Bozo that signed a defective warrant in the first place), then you (they) will spend a fortune on an appeal court to see if they will overturn the ruling like Groh and Ramirez did. IANAL but iIRC if yo are in the same circuit court as Montana, that case is a precedent, anywhere else, it’s a guideline but not a binding precendent.
When you say the warrant doesn’t order the police to seize anything, what do you mean by that? There’s no language whatsoever regarding seizure, or the part that says “you are commanded to… seize” is blank, or the part that says that refers to the attachment?