FILED

United States Court of Appeals

Tenth Circuit

April 27, 2021

Christopher M. Wolpert

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-2182

OMIL COTTO, also known as Omil

Gomez, also known as Omil Alfredo

Gomez,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. 1:18-CR-002216-JAP-1)

Meredith Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal

Public Defender, with her on the briefs), Office of the Federal Public Defender,

Denver, Colorado, for Appellant.

Peter J. Eicker, Assistant United States Attorney (John C. Anderson, United

States Attorney, with him on the brief), Office of the United States Attorney,

Albuquerque, New Mexico.

Before TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.

TYMKOVICH, Chief Judge.
Omil Cotto was charged with three drug and gun-related offenses stemming

from a road rage incident. Prior to trial, Cotto filed a motion to suppress

evidence officers had obtained from a residence in Albuquerque, New Mexico.

He argued (1) the affidavit supporting the warrant did not provide probable cause

for the search of the house, and (2) provisions in the warrant authorizing seizure

of “all firearm evidence” and “any cellphones” were overbroad. The district court

denied the motion to suppress. Cotto then pleaded guilty to lesser charges but

expressly preserved his right to appeal the court’s order on the suppression

motion.

We affirm the district court’s denial of the motion to suppress. The goodfaith exception to the exclusionary rule applies to the search and seizure here.

The officers acted in objectively reasonable reliance on the warrant while

conducting the search of the residence. And even if we assume the warrant’s cell

phone provision was overbroad, that provision can and should be severed from the

remaining valid portions of the warrant.

I. Background

A. Factual Background

At 2:39 p.m. on May 31, 2018, the Bernallilo County Sheriff’s Office

received calls about shots fired during a road rage incident in Albuquerque, New

Mexico. Detectives responded to the scene of the incident. Upon arriving, they

found a woman sitting in a damaged, yellow Chevrolet Camaro. The woman

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identified herself and claimed she had been driving the yellow Camaro when a

black SUV had struck her car, the SUV’s driver fired a gun, and then the SUV

sped off.

After speaking with the woman, the detectives checked surveillance footage

from a nearby gas station that had captured the entire incident. In the video, a

black SUV rear-ended the yellow Camaro. A male driver then exited the Camaro

and fired several shots from a gun at the SUV, which fled the scene. Moments

later a red Camaro arrived. The woman then got out of the red Camaro and

helped the male driver move items from the yellow Camaro into her car. He got

into the driver’s seat of the red Camaro and drove off while she got into the

yellow Camaro and waited for police to arrive.

The woman changed her story when she realized the detectives had

obtained surveillance footage of the entire incident. These statements were

consistent with what the detectives had observed in the video. She identified her

male counterpart as Omil Cotto, her husband. The officers researched Cotto and

found that he had been convicted of at least one prior felony. Then the detectives

discovered an address on Apodaca Street S.W. in Albuquerque in the DMV

database while running a check on his wife’s license.

That same afternoon, officers responded to the Apodaca residence and

found the red Camaro parked in front of the house with the license plate removed.

While officers waited at the residence, a white Nissan arrived. Two males, one of

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them Cotto, exited the Nissan and entered the house. Soon thereafter they exited

the house and went back to the Nissan. At this point, officers approached both

individuals and took them into custody.

At 6:16 p.m., a detective interviewed the man with Cotto. The man who

had been with Cotto identified himself as Cotto’s brother-in-law. He and his wife

lived at the Apodaca residence, along with his wife’s father.

1 During the

interview, Cotto’s brother-in-law described to officers what had transpired over

the past several hours. He had arrived home at about 4:00 p.m. and found Cotto’s

red Camaro parked outside and Cotto in the house. Cotto asked him for a ride to

Cotto’s house to pick up a different vehicle. When they arrived, Cotto went

inside and retrieved a duffle bag containing a rifle. Cotto placed it in the Nissan

and told him they needed to return to the Apodaca residence because he had

forgotten the keys to his other vehicle there. After arriving back at the Apodaca

residence, Cotto entered the house and left the bag inside. Cotto and his brotherin-law exited the house and prepared to leave again in the Nissan. This is when

the police approached them.

The detective then interviewed Cotto’s sister-in-law. She said Cotto had

arrived at the house that afternoon, asking if he could drop off his daughter

1 Cotto’s brother-in-law later explained that Cotto, Cotto’s wife, and their

daughter had stayed at the Apodaca residence for several months until February of

2018. At the time of the search, the house was owned by Cotto’s brother-in-law,

sister-in-law, and father-in-law.

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because he needed to go to the hospital with his wife. She also stated Cotto was

carrying a red and black backpack when he initially arrived, but she was unsure

what he had done with it.

While officers responded to the Apodaca residence and performed

interviews, another detective had returned to the station to write an affidavit

supporting a search warrant for the Apodaca residence. The affidavit included a

description of the surveillance footage. It also included the following three

statements:

• “Deputies on scene researched Omil Cotto[] and found him to be

convicted of at least one felony crime within the last 10 years.” R.,

Vol. I at 48.

• “Omil was later apprehended at [the Apodaca Residence] after he

arrived as a passenger in a white Nissan.” Id.

• “It should be noted that the red Chevy Camaro that Omil fled the

scene in was also located at [the Apodaca residence].” Id.

The affidavit specifically requested the following:

• “Affiant requests permission to seize any and all firearm evidence to

include pistols, revolvers, rifles, shotguns etc. as well as any spent

casings, live ammunition, holsters etc.” Id.

• “Affiant requests to seize any cellphones that may be in the home or

its contents.” Id.

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At 6:32 p.m., as officers at the Apodaca residence interviewed Cotto’s

brother-in-law, the detective submitted his affidavit to a district attorney for

review. Having received approval from the district attorney, he then submitted

the warrant to a state judge of the Second Judicial District Court of Albuquerque.

The state judge telephonically approved the warrant at 7:42 p.m. The final

warrant authorized officers to “search forthwith the persons, vehicle, curtilage

and place described in the affidavit” and “if the person or property be found there,

to seize the person and property and hold for safekeeping until further Order of

the Court.” Id. at 46. The warrant expressly referenced and incorporated the

affidavit.

Along with other officers, the same detective who wrote the affidavit then

executed the warrant at the Apodaca residence. During the search, the detective

found the red and black backpack. Inside, he found two large bundles wrapped in

black tape. He believed them to be drugs and sought an amended warrant to seize

the bundles. The state judge approved the amended warrant at 9:40 p.m. The

substance in the bundles field-tested positive for methamphetamine.

During the search, the executing officers also found and seized a Glock

pistol, the license plate of the red Camaro, and the rifle Cotto had brought in the

duffle bag. Cotto subsequently waived his Miranda rights and made incriminating

statements.

B. Procedural Background

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A grand jury indicted Cotto on three charges: possession with intent to

distribute over 500 grams of a mixture containing methamphetamine in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), discharge of a firearm during a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(iii), and a charge of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Before trial, Cotto moved to suppress evidence obtained during the search

of the Apodaca residence. He argued the state judge had improperly approved the

warrant for two reasons. First, the affidavit supporting the warrant did not

establish probable cause. Second, the cell phone and firearm provisions of the

warrant were overbroad, violating the Fourth Amendment’s requirement that

warrants “particularly describ[e] . . . the persons or things to be seized.” U.S.

Const. amend. IV.

The district court denied the motion to suppress. The court concluded the

warrant was supported by probable cause and, even if it was not, the good-faith

exception to the warrant requirement applied. The district court also determined

the provision authorizing seizure of “all firearm evidence” was not overbroad.

And, because officers did not seize any cell phones during the search, the district

court concluded it was irrelevant whether the cell phone provision was overbroad.

Following the district court’s denial of his motion to suppress, Cotto

pleaded guilty to possession with the intent to distribute 50 or more grams of

methamphetamine (21 U.S.C. §§ 841(a)(1) and (b)(1)(A)) and discharge of a

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firearm during a drug offense (18 U.S.C. § 924(c)). The plea agreement expressly

permitted Cotto to appeal the district court’s suppression decision.

II. Analysis

Cotto makes two arguments about why the district court erred in denying

his motion to suppress. First, he contends the district court erred in concluding

that the warrant authorizing officers to search and seize evidence from the

Apodaca residence was supported by probable cause. Second, he maintains the

district court erred in deciding that the warrant satisfied the Fourth Amendment’s

particularity requirement.

A. Standard of Review

When we review a district court’s denial of a motion to suppress “we view

the evidence in the light most favorable to the government, accept the district

court’s findings of fact unless clearly erroneous, and review de novo the ultimate

determination of reasonableness under the Fourth Amendment.” United States v.

Sadlowski, 948 F.3d 1200, 1203 (10th Cir. 2020) (internal quotation marks

omitted). The judge’s decision that an affidavit submitted in support of a warrant

established probable cause must be given great deference. Id. We review

“merely to ensure the Government’s affidavit provided a ‘substantial basis’ for

reaching that conclusion.” Id. (quoting United States v. Biglow, 562 F.3d 1272,

1280 (10th Cir. 2009)).

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The permissible scope of a warrant and whether it may be severed is

reviewed de novo. United States v. Sells, 463 F.3d 1148, 1153 (10th Cir. 2006).

And we also review de novo the applicability of exceptions to the exclusionary

rule, such as the good-faith exception. United States v. Knox, 883 F.3d 1262,

1268 (10th Cir. 2018).

B. Unreasonable Search and Seizure

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.” U.S. Const. amend. IV. It outlines a specific way for government

officials to establish reasonableness: through the issuance of a warrant that is

supported by “probable cause” and “particularly describ[es] the place to be

searched, and the persons or things to be seized.” Id. When a warrant does not

meet these requirements, or fall within another exception to the warrant

requirement, subsequent searches and seizures violate the Constitution.

Courts regularly suppress evidence obtained in violation of the Fourth

Amendment through the exclusionary rule. But the exclusionary rule “is not itself

a constitutional guarantee.” Knox, 883 F.3d at 1273. Rather, it “is a disincentive

for law enforcement to engage in unconstitutional activity.” Id. Whether the

exclusionary rule applies in a given case “turns on whether such application will

be an effective deterrent against future Fourth Amendment violations.” Id.

Because the exclusionary rule is applied only when it can deter future violations,

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the exclusionary rule is subject to several well-known exceptions when this

purpose is not met.

Among these is the good-faith exception to the warrant requirement.

2 Even

if a court ultimately determines that a warrant approved by a judge falls short of

the constitutional requirements of probable cause or particularity, evidence will

not be suppressed if “a law enforcement officer relies in objective good faith on a

warrant issued by a detached and neutral magistrate.” Id. (citing United States v.

Leon, 468 U.S. 897, 922 (1984)). The exclusionary rule is not warranted in such

instances because suppressing evidence would serve no deterrent effect: “Judges

and magistrates are not adjuncts to the law enforcement team; as neutral judicial

officers, they have no stake in the outcome of particular criminal prosecutions.

The threat of exclusion thus cannot be expected significantly to deter them.”

Leon, 468 U.S. at 917.

When determining whether this exception applies in a given case, “we

generally presume officers executed a search warrant in objective good faith.”

United States v. Campbell, 603 F.3d 1218, 1230 (10th Cir. 2010). But this

presumption disappears when an affidavit supporting a warrant “is so facially

2 The district court also concluded, in the alternative, that the search of the

Apodaca residence was justified under the inevitable discovery doctrine. Because

the good-faith exception applies, we do not reach the applicability of inevitable

discovery in this case.

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deficient . . . that the executing officers cannot reasonably presume it to be valid.”

Leon, 468 U.S. at 923.

In assessing whether an officer’s reliance on a invalid warrant was

reasonable, we can look at the process employed by officers in obtaining the

warrant. See Knox, 883 F.3d at 1272. For instance, it is indicative of good faith

when the officer who prepares an affidavit is the same one who executes a search.

See United States v. Russian, 848 F.3d 1239, 1246 (10th Cir. 2017) (“Although a

warrant application or affidavit cannot save a warrant from facial invalidity, it

can support a finding of good faith, particularly where, as here, the officer who

prepared the application or affidavit also executed the search.”). And an officer’s

efforts to obtain approval of a warrant application from a superior and an attorney

also indicate the officer was acting in good faith. See Knox, 883 F.3d at 1269 n.5

(citing Messerschmidt v. Millender, 565 U.S. 535, 553–55 (2012)).

But when determining whether an officer’s reliance was objectively

reasonable, our primary focus must be the text of the affidavit supporting the

warrant. See Knox, 883 F.3d at 1272. We will not consider information an

officer knew when he initially sought the warrant but that was not included in the

affidavit. See id. at 1272–73. The affidavit itself must be “sufficiently detailed to

merit application of the good-faith exception.” Id. at 1273. No matter how

thorough an officer’s process leading to the issuance of a warrant or how much an

officer knows that could support the warrant, reliance on a warrant is not

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reasonable if the affidavit supporting it is “bare bones” or “devoid of factual

support.” United States v. Cordova, 792 F.3d 1220, 1223 (10th Cir. 2015).

1. Was the warrant supported by probable cause?

Warrants must be supported by probable cause. An affidavit provided by

the government in support of a warrant establishes probable cause if it evinces a

“fair probability that contraband or evidence of a crime will be found in a

particular place.” Knox, 883 F.3d at 1275 (internal quotation marks omitted). In

the context of a warrant authorizing the search of a house, an affidavit must

establish a substantial nexus between the crime and the place to be searched.

Biglow, 562 F.3d at 1278–79. “Whether a nexus exists to search a suspect’s home

depends on the strength of the case-specific evidence that links suspected criminal

activity to the home.” United States v. Mora, 989 F.3d 794, 800 (10th Cir. 2021).

In making the nexus determination, courts may consider: “(1) the type of crime at

issue, (2) the extent of the suspect’s opportunity for concealment, (3) the nature

of the evidence sought, and (4) all reasonable inferences as to where a criminal

would likely keep such evidence.” Id. at 801 (citing Biglow, 562 F.3d at 1279).

The warrant is valid if the “affidavit describes circumstances which would

warrant a person of reasonable caution in the belief that the articles sought are at

a particular place.” Id. at 1277 (internal quotation marks omitted).

As described above, even if the warrant authorizing a search was not

supported by probable cause, evidence obtained pursuant to the search need not

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be suppressed if the officer executing the warrant acted in good-faith reliance on

a judge’s approval. When the search is of a home, the good-faith exception

applies if the affidavit supporting the warrant establishes a “minimally sufficient

nexus between the illegal activity and the place to be searched.” United States v.

Campbell, 603 F.3d 1218, 1231 (10th Cir. 2010) (internal quotation marks

omitted). This nexus requirement is less than what is required to show probable

cause. See United States v. Barajas, 710 F.3d 1102, 1110–11 (10th Cir. 2013).

To find a minimal nexus, there need not be “hard evidence or personal knowledge

of illegal activity link[ing] a Defendant’s suspected unlawful activity to his

home.” Campbell, 603 F.3d at 1231 (internal quotation marks omitted).

Here, two pieces of evidence in the affidavit connect Cotto to the Apodaca

residence. First, the red Camaro in which Cotto drove away from the shooting

was parked outside the residence. Second, Cotto was arrested outside of the

residence.

3 The affidavit also makes clear that all the events took place within a

short period of time, roughly four hours.

Cotto maintains this information was inadequate to establish probable cause

to search the Apodaca residence. And he argues that finding probable cause here

3 Oddly, although the detective knew other pertinent information

connecting Cotto to the Apodaca residence—he had been told by officers at the

scene that Cotto had entered and exited the house and he knew the address was

connected to Cotto’s wife—that information was not included in the affidavit.

Since this information was not in the affidavit, we cannot consider it. See Knox,

883 F.3d at 1273.

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would open the door to problematic searches in the future. For example, if a

house can be searched every time a suspect’s car is parked outside of it, police

will be authorized to search untold numbers of residences that are connected to

criminal activity by nothing more than sheer happenstance.

In this case, we need not decide whether the warrant was supported by

probable cause. The good-faith exception clearly applies. See Campbell, 603

F.3d at 1231 (“[W]e bypass [the probable cause inquiry] and conclude the goodfaith exception applies.”).

First, the process the detective followed when applying for the warrant

indicates he was acting in good faith. He received approval from a district

attorney before bringing the affidavit to the state judge. And he also carried out

the subsequent search of the Apodaca residence.

Second, the affidavit was not so devoid of factual support as to render the

detective’s reliance on it unreasonable. The affidavit created at least a minimally

sufficient nexus between Cotto’s criminal activity and the place to be searched.

Soon after the red Camaro sped away from the shooting it was found outside the

Apodaca residence. And Cotto was then found returning to the car a short time

later. The detective executing the warrant could reasonably infer Cotto was using

the Apodaca residence to store evidence of his criminal activity—several hours

had passed since the road rage incident, Cotto used a gun during the incident, and

the car he fled the scene in was parked outside the residence. The facts contained

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in the affidavit could have supported an officer’s objectively reasonable goodfaith reliance on the warrant.

Cotto suggests our precedent dictates a different outcome. He directs us to

several cases in which we held that the affidavit underlying a warrant did not

meet the minimal-nexus requirement necessary for the good-faith exception. In

United States v. Gonzalez, 399 F.3d 1225, 1231 (10th Cir. 2005), we concluded

the good-faith exception did not apply when the affidavit listed an address to be

searched but contained “no facts explaining how the address was linked to” the

defendant. And in United States v. Dutton, 509 F. App’x 815 (10th Cir. 2013)

(unpublished), we concluded the good-faith exception did not apply when the

affidavit lacked any information connecting the defendant to a storage unit to be

searched. Id. at 818 (“What is missing, however, is any evidence that the storage

unit to be searched was Defendant’s.” (emphasis added)).

But these case are distinguishable. In Gonzalez and Dutton, the

government’s affidavits contained no information linking the places to be

searched to the defendants or their criminal activity. The same cannot be said

here. The information in the affidavit provides at least a minimal nexus between

the crime and house. As described above, the affidavit contained statements that

Cotto’s car was found outside the house to be searched and that Cotto returned to

the address. Given these facts, we cannot say the affidavit was so devoid of

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factual support as to render the executing officer’s reliance on the subsequent

warrant approved by a judge objectively unreasonable.

The district court was correct to deny Cotto’s motion to suppress.

Regardless of whether the warrant was supported by probable cause, the goodfaith exception to the warrant requirement applies.

2. Was the warrant overbroad?

In addition to being supported by probable cause, warrants must be

particular as to the place to be searched and items to be seized. See U.S. Const.

amend. IV. The Fourth Amendment’s particularity requirement is aimed at

preventing general warrants. See United States v. Sells, 463 F.3d 1148, 1154 (10th

Cir. 2006). To this end, warrants must “describe the items to be seized with as

much specificity as the government’s knowledge and circumstances allow.” Sells,

463 F.3d at 1154 (quoting United States v. Leary, 864 F.2d 592, 600 (10th Cir.

1988)).

There is a difference, however, between warrants which are “general” and

those which are “overly broad.” See United States v. Ninety-Two Thousand Four

Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir.

2002) (Alito, J.). General warrants are those that allow government officials to

engage in “exploratory rummaging in a person’s belongings.” Sells, 463 F.3d at

1154 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). To be

invalidated as general, the warrant must “vest the executing officers with

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unbridled discretion to conduct an exploratory rummaging through [the

defendant’s property] in search of criminal evidence.” Ninety-Two Thousand

Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d at 149

(internal quotation marks omitted). By contrast, an overly broad warrant

“describes in both specific and inclusive generic terms what is to be seized, but it

authorizes the seizure of items as to which there is no probable cause.” Id.

(internal quotation marks omitted).

We understand Cotto to be challenging the warrant in this case as overly

broad, not as general.

4 But, even if the warrant at issue here is overbroad,

suppression of evidence should be “a last resort, not a first impulse.” Sells, 463

F.3d at 1154 (internal quotation marks omitted). When possible, we apply the

doctrine of severance to save an overbroad warrant. Under this doctrine “valid

portions of a warrant are severed from the invalid portions and only materials

seized under the authority of the valid portions, or lawfully seized while

executing the valid portions, are admissible.” Id. at 1155.

To determine whether the invalid portions of a warrant may be severed

from the valid portions we follow several steps: first, divide the warrant in a

4 Cotto insists the firearm provision was invalid because it was not

adequately particularized and the cell phone provision was invalid because

officers did not have probable cause to search for any cell phones. But he does

not clearly articulate whether he believes the warrant here was general or simply

contained overbroad provisions. We believe the essence of Cotto’s argument is

that the warrant was overbroad—officers did not have probable cause to search

for any and all firearms and cell phones.

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commonsense way, then evaluate the validity of each section, and finally

determine whether the sections can be distinguished from one another. See id. at

1155–58. Practically, where “each of the categories of items to be seized

describes distinct subject matter in language not linked to language of other

categories, and each valid category retains its significance when isolated from

[the] rest of the warrant, then the valid portions may be severed from the

warrant.” Id. at 1158.

But just because the portions of a warrant can be severed does not

necessarily mean we may sever them in all instances. “[E]very court to adopt the

severance doctrine has further limited its application to prohibit severance from

saving a warrant that has been rendered a general warrant by nature of its invalid

portions despite containing some valid portion.” Id. at 1158. In such instances,

we may save the valid portions of the warrant and admit seized items only if “the

valid portions of the warrant make up the greater part of the warrant.” Id.

(internal quotation marks omitted and alterations incorporated). This “greater

part” inquiry “focuses on the warrant itself rather than upon the analysis of the

items actually seized during the search.” Id. at 1159. When determining what

provisions make up the greater part of a warrant, we will tally the valid and

invalid provisions in a warrant. But “merely counting parts, without any

evaluation of the practical effect of those parts, is an improperly ‘hypertechnical’

interpretation of the search authorized by the warrant.” Id. at 1160. So, we must

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use our commonsense, evaluating “the relative scope and invasiveness of the valid

and invalid parts of the warrant.” Id.

When a warrant includes overbroad provisions, the “greater part” inquiry is

not necessary to sever the invalid portions of the warrant. Rather, we look to see

whether any of the evidence seized was obtained pursuant to the invalid

provision. If not, no evidence need be suppressed.

With these principles in mind, we consider their application here. First, we

must divide the warrant at issue in a commonsense way. Cotto challenges two

portions of the warrant: the firearm and cell phone provisions. As a reminder, the

warrant authorized officers to seize “any and all firearm evidence to include

pistols, revolvers, rifles, shotguns etc. as well as any spent casings, live

ammunition, holsters etc” and “any cellphones that may be in the home or its

contents.” R., Vol. I at 48. The parties do not dispute that these two clauses are

easily divisible.

Next, we evaluate the firearm and cell phone provisions to determine

whether each is valid.

We agree with the district court that the firearm provision is valid. After

watching the surveillance footage, officers would have known Cotto used a

handgun during the road rage incident. But the warrant was not solely focused on

the shooting. The affidavit included more information, specifically that Cotto had

been “convicted of at least one felony crime within the past 10 years.” Id. Thus,

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under federal law, Cotto was not allowed to possess any firearms. See 18 U.S.C.

§ 922(g). Given that the affidavit contained information indicating it was illegal

for Cotto to possess any firearms, the warrant’s authorization to seize “any and all

firearm evidence” was not overbroad. See United States v. Campbell, 256 F.3d

381, 389 (6th Cir. 2001) (warrant provision authorizing seizure of “any and all

firearms” was not overbroad because officers knew the defendant had committed

a previous felony); cf. United States v. Jimenez, 205 F. App’x 656, 662 (10th Cir.

2006) (unpublished) (“If the affidavit contained [information about the

defendant’s felon status], then there would be probable cause to search for ‘any

firearms’ as authorized by the warrant.”).

We disagree with the district court about the cell phone provision. The

district court did not address Cotto’s primary argument that the cell phone

provision was overbroad. Instead, the court reasoned that the provision’s validity

was irrelevant because no cell phones were seized. See R., Vol. I at 217

(“Officers did not seize any cellphones in this case so the Court will not address

whether the request for cellphones was overbroad.”). Our cases, however,

expressly require us to look at the warrant’s provisions, not the actual items

seized. See Cassady v. Goering, 567 F.3d 628, 636 (10th Cir. 2009) (explaining

even if officers performed a “‘constitutional search’, it is well-settled that ‘mere

words’ in a warrant in and of themselves can violate the Fourth Amendment”).

The district court erred by forgoing analysis of the cell phone provision.

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We assume, without deciding, that there was not probable cause to seize

any cell phones and that the lack of probable cause could not be excused under

the good-faith exception to the exclusionary rule. We, therefore, proceed under

the assumption that the cell phone provision was invalid.

The next step in severability is distinguishing the valid portions of the

warrant from the invalid portions. That is not difficult here. Neither the firearm

nor the cell phone provision makes reference to the other and they deal with

entirely different types of property to be seized. The provisions are easily

distinguishable from one another.

Finally, we conclude that we need not perform the “greater part” inquiry

here. The allegedly overbroad cell phone provision does not render the warrant

“general.” Instead, the warrant specifically identified the items to be seized:

firearms and cell phones. Its scope was limited. The Sells court instructs us to

perform the greater part inquiry only when “the invalid portions so predominate

the warrant that the warrant in essence authorizes a general, exploratory

rummaging in a person’s belongings.” 463 F.3d 1158 (internal quotation marks

omitted) (emphasis added).

So, instead of engaging in the “greater part” inquiry, we simply ensure that

all the evidence officers seized was obtained pursuant to the warrant’s valid

provisions. Through the search, officers seized a Glock pistol, the license plate of

the red Camaro, and the rifle Cotto had brought in the duffle bag. They also

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found the two black bundles in Cotto’s backpack. After obtaining an amended

warrant, they discovered that the bundles contained a substance that tested

positive for methamphetamine. During the entire search of the residence, the

officers did not seize any cell phones.

None of this evidence should be suppressed. Everything was found and

seized pursuant to the valid firearm provision and the subsequent amended

warrant. Cotto does not argue otherwise. Nor could he. The valid firearm

provision authorized officers to search for and seize “pistols, revolvers, rifles,

shotguns etc. as well as any spent casings, live ammunition, holsters.” R., Vol. I

at 48. This provision allowed officers to thoroughly search the house and resulted

in the discovery of the evidence the officers ultimately seized.

Because the valid firearms provision is severable from the invalid cell

phone provision, none of the evidence obtained during the search should be

suppressed.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s denial of Cotto’s

motion to suppress.

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