Is severance of any overbroad warrant a permissible exception to the exclusionary rule

QUESTION PRESENTED For more than a century, this Court has recognized the exclusionary rule as the appropriate remedy for violations of the Fourth Amendment. See Weeks v. United States, 232 U.S. 383 (1914); see also Mapp v. Ohio, 367 U.S. 648, 651 (1961) (acknowledging that the exclusionary rule “is an essential ingredient of the Fourth Amendment”). But the Court has also emphasized that application of the exclusionary rule should be a “last resort,” rather than a “first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). In keeping with this view, the Court has carved out several exceptions to application of the exclusionary rule. See, e.g., Arizona v. Evans, 514 U.S. 1 (1995) (good faith exception); Nix v. Williams, 467 U.S. 431 (1984) (inevitable discovery doctrine); and Murray v. United States, 487 U.S. 533 (1988) (independent source doctrine). This Court, however, has yet to recognize an exception to the exclusionary rule regularly applied by lower federal and state courts. Under the “severance doctrine,” a court presented with an impermissibly overbroad search warrant may be able to “sever” the portion of the search warrant that violates the Fourth Amendment from the remaining constitutionally permissible portions of that warrant, thereby allowing enforcement of the non-tainted portion of the warrant. In this case, the United States Court of Appeals for the Ninth Circuit held that severance was the appropriate response to a claim that a search warrant served on the Internet Service Provider Yahoo!, Inc. (“Yahoo”) was impermissibly overbroad and therefore violative of the Fourth Amendment. The Ninth ii Circuit’s flawed application of the severance doctrine to the search warrant in this case, however, places the Ninth Circuit at odds with other circuit courts of appeal and creates uncertainty concerning the scope and application of the severance doctrine. This petition for writ of certiorari presents the following questions: (1)Is severance of any overbroad warrant a permissible exception to the exclusionary rule; and if so, (2) What it is the appropriate method to determine whether a warrant is capable of severance?