09-0636-cr
United States v. Rosa
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term 2009
5 (Argued: March 2, 2010 Decided: October 27, 2010)
6 Docket No. 09-0636-cr
7 -----------------------------------------------------x
8 UNITED STATES OF AMERICA,
9
10 Appellee,
11
12 -- v. --
13
14 EFRAIN J. ROSA,
15
16 Defendant-Appellant.
17
18 -----------------------------------------------------x
19
20 B e f o r e : WALKER and LIVINGSTON, Circuit Judges, and KAPLAN,
21 District Judge.*
22 Defendant-Appellant Efrain J. Rosa appeals from a judgment
23 of the United States District Court for the Northern District of
24 New York (Norman A. Mordue, Chief Judge) convicting him of
25 producing child pornography and of witness tampering, and
26 sentencing him to 120 years’ imprisonment. Rosa challenges the
27 district court’s denial of his motion to suppress physical
28 evidence seized from his apartment, arguing that officers
29 violated the Fourth Amendment by executing an overbroad search
30 warrant that was so plainly defective that the good faith
*
1 The Honorable Lewis A. Kaplan, of the United States District
2 Court for the Southern District of New York, sitting by
3 designation.
1
1 exception to the exclusionary rule does not apply. While we
2 agree with Rosa that the search warrant fails for lack of
3 particularity and, in light of Groh v. Ramirez, 540 U.S. 551
4 (2004), cannot be cured by reference to unincorporated,
5 unattached supporting documents, we conclude that the district
6 court correctly refused to exclude the resulting evidence, and
7 therefore AFFIRM.
8 JAMES P. EGAN, Office of the
9 Federal Public Defender (Alexander
10 Bunin, Federal Public Defender, and
11 Lisa A. Peebles, First Assistant
12 Federal Public Defender, on the
13 brief), Syracuse, N.Y., for
14 Defendant-Appellant.
15
16 BRENDA K. SANNES, Assistant United
17 States Attorney (Andrew T. Baxter,
18 Acting United States Attorney for
19 the Northern District of New York,
20 and Lisa M. Fletcher, Assistant
21 United States Attorney, of Counsel,
22 on the brief), Syracuse, N.Y., for
23 Appellee.
24
25 JOHN M. WALKER, JR., Circuit Judge:
26 Defendant-Appellant Efrain J. Rosa appeals from the February
27 12, 2009 judgment of the United States District Court for the
28 Northern District of New York (Norman A. Mordue, Chief Judge)
29 convicting him, upon a conditional guilty plea, of three counts
30 of producing child pornography and one count of witness
31 tampering. Prior to his guilty plea, Rosa moved to suppress
32 physical evidence seized from his home on the basis that it was
33 taken pursuant to an overbroad search warrant that failed to
2
1 state how electronic items to be seized were connected to any
2 suspected criminal activity or, more specifically, child
3 pornography. While we agree with Rosa that the Supreme Court’s
4 decision in Groh v. Ramirez, 540 U.S. 551 (2004), has abrogated
5 United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993), to
6 disallow consideration of unattached and unincorporated
7 supporting documents to cure an otherwise defective search
8 warrant, and that the warrant in this case is thus
9 constitutionally invalid, we conclude that the district court
10 correctly refused to exclude the resulting evidence. We
11 therefore AFFIRM the district court’s denial of Rosa’s motion to
12 suppress.
13
14 BACKGROUND
15 Late on September 26, 2007, the Oswego County, New York,
16 Sheriff’s Office began investigating possible child exploitation
17 by Efrain J. Rosa after Deputy Sheriff John Burke was dispatched
18 to a local address upon receipt of a 911 call from two mothers
19 reporting that their minor sons had just disclosed being sexually
20 abused by a neighbor, whom the boys referred to only as “J.”
21 Upon speaking with the two women and interviewing each of the
22 boys, Deputy Sheriff Burke learned that “J” had shown the boys
23 files on his computer containing nude pictures of the boys and
24 other children and that “J” had engaged in sexual conduct with
3
1 the boys. The boys further stated that “J” kept three laptop
2 computers in his apartment, had a USB flash drive on which he
3 kept images of nude children that included images of the two
4 boys, had a pistol in his bedside table, and had sexually abused
5 each of the boys on multiple occasions over a period of two
6 months. In the course of the investigation, at approximately
7 2:00 a.m., the responding officers sought the assistance of
8 Oswego County Investigator Bryan Blake, who had specialized
9 training in performing computer forensic exams in child
10 pornography cases. Based on the information provided to him by
11 Deputy Sheriff Burke and another officer, the sworn statements of
12 the two boys and one of the mothers, and his own specialized
13 computer training, Investigator Blake prepared a search warrant
14 application and affidavit, which he then presented to Granby Town
15 Justice Bruce Wells in connection with his request for a search
16 warrant of Rosa’s apartment.
17 On September 27, 2007, at 4:10 a.m., Judge Wells issued a
18 search warrant directing the Oswego County Sheriff’s Office to
19 search
20 [t]he entire residence known as 30 West 11th Street
21 Building E Apartment 1 Chateau West Apartments in the
22 Town of Granby, County of Oswego, State of New York.
23 This is to include any containers or rooms whether
24 locked or otherwise[ ]
25
26 for the following property:
27 The property sought to be seized and searched is
28 described as computer equipment, electronic digital
4
1 storage media included but not limited to floppy
2 diskettes, compact disc, hard drives whether mounted in
3 a computer or otherwise, video or audio tapes, video
4 surveillance systems, video and digital camera systems,
5 printing devices, monitors, firearms and any written
6 and/or printed and/or electronic stored notes or
7 records which would tend to identify criminal conduct
8 and any personal papers or documents which tend to
9 identify the owner, leasee or whomever has custody or
10 control over the premises searched or the items seized.
11
12 While the search warrant itself did not incorporate any
13 supporting documents, or set forth the nature of the suspected
14 criminal activity, section A of the search warrant application
15 stated that the property to be searched was evidence of three New
16 York criminal offenses–two sex offenses, one of which related to
17 crimes involving child pornography, and one firearms offense.1
18 Sections B and C of the search warrant application then described
19 the location to be searched and the items to be searched and/or
20 seized identically to the descriptions used in the search
21 warrant. Finally, the search warrant application requested that
22 “the court issue a search warrant directing the search as set
23 forth in section C of this application for property described and
24 set forth in sections A and B of this application and the seizure
25 thereof.” Investigator Blake swore to the information in the
26 search warrant application before Judge Wells, and the
27 application bore each man’s signature.
1
1 Specifically, the application listed the suspected violation
2 of Articles 130 (“Sex offenses”), 263 (“Sexual performance by a
3 child”), and 265 (“Firearms and other dangerous weapons”) of New
4 York State’s Penal Law.
5
1 The materials presented to Judge Wells also included an
2 affidavit by Investigator Blake that (a) incorporated the
3 statements made by each of the boys and one of the two women, (b)
4 explained Investigator Blake’s forensics training and the
5 characteristics common to individuals engaged in the production
6 of child pornography and in child molestation, and (c) set forth
7 Rosa’s New York criminal history and lack of a pistol permit.
8 The affidavit also stated the following as to the items specified
9 for seizure:
10 All of the materials requested for seizure will
11 identify children who are being sexually exploited
12 through child molestation and child pornography. The
13 materials will also identify other adults who are
14 engaging in the sexual exploitation of children by
15 these means. In addition, these materials will
16 demonstrate the sexual proclivity, inclination,
17 preference, and activities of the person under
18 investigation providing evidence that will tend to show
19 that the person under investigation has committed
20 felonies.
21
22 After issuance of the search warrant, Investigator Blake convened
23 a team of officers, proceeded to Rosa’s apartment, and, at
24 approximately 5:00 a.m., executed the warrant. During the
25 search, officers seized numerous items, including, inter alia,
26 six computers, multiple USB thumb drives, USB cables, a Sony
27 Playstation, two digital cameras, multiple external hard drives,
28 a cassette recorder, two USB cameras, numerous compact discs, a
29 pair of handcuffs, condoms, three marijuana pipes, a handgun,
30 ammunition, and over seventy grams of marijuana. Investigator
6
1 Blake personally participated in the execution of the warrant
2 and, as the warrant’s affiant, was responsible for ensuring that
3 the items seized were within the scope of the approved search.
4 Investigator Blake subsequently performed a forensic
5 analysis of the computers and related storage media, during which
6 he discovered several thousand images and over a hundred videos
7 of child pornography. Investigator Blake also uncovered three
8 digital file folders, two of which were labeled with the
9 complainants’ first names, that contained sexually explicit
10 images of minor children, including images of the defendant
11 engaging in sexual conduct with each of the complainants. File
12 data from the images indicated that they were produced by the
13 same type of camera as the one seized from Rosa’s apartment.
14 In October 2007, following his arrest and arraignment on
15 state court charges, a federal grand jury indicted Rosa on three
16 counts of producing child pornography. In February 2008, Rosa
17 moved to suppress post-arrest statements he made to law
18 enforcement officers, arguing that the statements were
19 involuntary, made under duress, and taken despite his request for
20 counsel, all in violation of the Fifth Amendment. On March 13,
21 2008, the grand jury returned a nineteen-count superseding
22 indictment charging Rosa with three counts of producing child
23 pornography, one count of witness tampering, two counts of
24 attempting to receive child pornography in interstate commerce,
7
1 and thirteen counts of possessing child pornography.
2 In June 2008, Rosa filed a second motion to suppress, this
3 time arguing that physical evidence seized from his apartment was
4 obtained in violation of the Fourth Amendment. Specifically,
5 Rosa argued that the issuing date on the search warrant was
6 altered, that the officers failed to provide him with or show him
7 a copy of the warrant, that the warrant lacked particularity and
8 was overbroad because it allowed for the seizure of any items
9 that “would tend to identify criminal conduct,” and that the
10 inventory from the search lacked sufficient detail. In a
11 supplemental memorandum, Rosa further described the search
12 warrant’s lack of particularity, arguing that it failed to show
13 “how the items to be seized are connected to criminal activity”
14 or to “state or make any mention of child pornography.” Thus,
15 according to Rosa, the warrant purportedly authorized a general
16 search of his electronic equipment without providing any guidance
17 to the executing officers as to the type of criminal conduct
18 suspected or the particular items to be seized.
19 On August 6, 2008, following an evidentiary hearing as to
20 Rosa’s post-arrest statements only, the district court, in a
21 ruling from the bench, denied Rosa’s motion to suppress those
22 statements as well as his subsequent motion to suppress physical
23 evidence seized from his apartment. As to Rosa’s claim that the
24 search warrant lacked particularity, the district court declined
8
1 to address Rosa’s arguments that (1) the warrant did not state
2 the nature of the crime suspected or the items to be seized with
3 particularity, and (2) the warrant contained two “catch all”
4 phrases of the type courts have found to be overbroad. Rather,
5 the district court assumed without deciding that Rosa was correct
6 on each of these points, but concluded that any such failure
7 “d[id] not render the warrant incurably defective” because “the
8 functional purposes of [incorporation and attachment], to insure
9 that all parties involved are informed of the scope of and limits
10 upon the authorized search, were fully satisfied.” Oral Order
11 Denying Motions to Suppress, United States v. Rosa, No. 07–cr-
12 00443 (NAM) (N.D.N.Y. Aug. 6, 2008) (citing Bianco, 998 F.2d at
13 1117). After considering the entirety of the documents presented
14 to the town justice, as well as the additional facts that
15 Investigator Blake was both the affiant and the officer who
16 executed the warrant, that Investigator Blake had specialized
17 training in investigating cases of child pornography, and that
18 the items actually seized were connected to the crimes charged,
19 the district court concluded that the scope of the search was
20 properly limited. The district court further concluded that even
21 if the warrant were deemed invalid, the officers reasonably
22 relied on it in executing a limited search of Rosa’s apartment.
23 The district court rejected Rosa’s motion to suppress his post-
24 arrest statements after finding the statements were voluntarily
9
1 made and lawfully obtained.
2 On October 9, 2008, Rosa pleaded guilty to three counts of
3 producing child pornography, in violation of 18 U.S.C. § 2251(a),
4 and one count of witness tampering, in violation of 18 U.S.C.
5 § 1512(b)(1), while reserving his right to appeal from the
6 district court’s denial of his motions to suppress. On February
7 12, 2009, the district court sentenced Rosa to a thirty-year term
8 of imprisonment on each of the four counts to which he plead
9 guilty, to be served consecutively, for a total of 120 years’
10 imprisonment, with lifetime terms of supervised release on the
11 child pornography counts and a three-year term on the witness
12 tampering count, all to be served concurrently.
13 This appeal followed.
14
15 DISCUSSION
16 On appeal, Rosa challenges only the district court’s denial
17 of his motion to suppress physical evidence seized from his
18 apartment. We review the district court’s factual findings for
19 clear error, viewing the evidence in the light most favorable to
20 the government, and its legal conclusions de novo. See United
21 States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 2008) (per curiam),
22 cert. denied, 130 S. Ct. 3434 (2010).
23 I. The Fourth Amendment’s Particularity Requirement
24 The Fourth Amendment to the U.S. Constitution provides:
10
1 The right of the people to be secure in their persons,
2 houses, papers, and effects, against unreasonable
3 searches and seizures, shall not be violated, and no
4 Warrants shall issue, but upon probable cause,
5 supported by Oath or affirmation, and particularly
6 describing the place to be searched, and the persons or
7 things to be seized.
8
9 U.S. Const. amend. IV. Thus, the Fourth Amendment protects
10 against “wide-ranging exploratory searches” unsupported by
11 probable cause, Maryland v. Garrison, 480 U.S. 79, 84 (1987), by
12 mandating that a search warrant describe with particularity the
13 place to be searched and the persons or things to be seized.
14 “The Fourth Amendment by its terms requires particularity in the
15 warrant, not in the supporting documents.” Groh, 540 U.S. at 557
16 (a warrant, however, may cross-reference and be accompanied by
17 supporting documents); see also United States v. Waker, 534 F.3d
18 168, 172 (2d Cir. 2008) (discussing Groh). We note that, while
19 Rosa argues that the search warrant in this case lacked
20 particularity because it purportedly authorized a general search
21 of his digital media for evidence of any criminal activity, he
22 has never asserted that the warrant was issued in the absence of
23 probable cause that he was engaged in child molestation or child
24 pornography.
25 Rosa principally argues that because it failed to state with
26 any level of particularity the specific criminal activity alleged
27 or the type of digital evidence to be sought from the electronic
28 items seized, the warrant authorized the officers to conduct an
11
1 unfettered search of the contents of his numerous electronic
2 devices, any one of which might contain sensitive personal
3 information unrelated to the suspected crimes of child
4 pornography and child molestation. For example, officers
5 conducting a search pursuant to the explicit terms of the warrant
6 might review expense reports, income-related files and
7 correspondence, and federal filing information in search of
8 evidence of tax evasion. Or officers might read through e-mail
9 correspondence in search of evidence of an internet-based
10 phishing scheme. As a consequence, Rosa effectively argues that
11 the warrant’s authorization of an uncircumscribed search of his
12 electronic equipment violated the Fourth Amendment’s core
13 protection against general searches because it provided the
14 government with unrestrained access to electronic records of his
15 daily activities and private affairs. See United States v.
16 Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (“The modern
17 development of the personal computer and its ability to store and
18 intermingle a huge array of one’s personal papers in a single
19 place increases law enforcement’s ability to conduct a wide-
20 ranging search into a person’s private affairs, and accordingly
21 makes the particularity requirement that much more important.”).
22 We agree with Rosa that the search warrant in this case
23 lacked the requisite specificity to allow for a tailored search
24 of his electronic media. The warrant was defective in failing to
12
1 link the items to be searched and seized to the suspected
2 criminal activity–i.e., any and all electronic equipment
3 potentially used in connection with the production or storage of
4 child pornography and any and all digital files and images
5 relating to child pornography contained therein–and thereby
6 lacked meaningful parameters on an otherwise limitless search of
7 Rosa’s electronic media. See United States v. Buck, 813 F.2d
8 588, 590 (2d Cir. 1987) (“[T]he particularity requirement ‘makes
9 general searches . . . impossible and prevents the seizure of one
10 thing under a warrant describing another. As to what is to be
11 taken, nothing is left to the discretion of the officer executing
12 the warrant.’” (quoting Marron v. United States, 275 U.S. 192,
13 196 (1927))).
14 Here, the warrant directed officers to seize and search
15 certain electronic devices, but provided them with no guidance as
16 to the type of evidence sought. See United States v. George, 975
17 F.2d 72, 76 (2d Cir. 1992) (“Mere reference to ‘evidence’ of
18 . . . general criminal activity provides no readily ascertainable
19 guidelines for the executing officers as to what items to seize.
20 . . . [A]uthorization to search for ‘evidence of a crime,’ that
21 is to say, any crime, is so broad as to constitute a general
22 warrant.”). We therefore conclude that the warrant failed to
23 describe with particularity the evidence sought and, more
24 specifically, to link that evidence to the criminal activity
13
1 supported by probable cause. As a result, the warrant violated
2 the Fourth Amendment’s proscription against general searches.
3 See Bianco, 998 F.2d at 1116 (noting that the subject warrant,
4 when viewed by itself, was impermissibly broad because it
5 described “neither the precise items to be seized nor the
6 possible crimes involved”); see also United States v. Burgess,
7 576 F.3d 1078, 1091 (10th Cir. 2009) (“If the warrant is read to
8 allow a search of all computer records without description or
9 limitation it would not meet the Fourth Amendment’s particularity
10 requirement.”).
11 The Government relies on our decision in Bianco to argue
12 that any defect in the search warrant may be cured by reference
13 to its supporting documents, which make clear that the search was
14 limited to gathering evidence of three New York crimes, including
15 crimes of child pornography and child molestation.2 In Bianco,
16 we held that a warrant authorizing the seizure of “[N]otes,
17 Ledgers, Envelopes, Papers, and Records Containing Initials,
18 Names, Addresses, Dollar Amounts, Codes, Figures, and the Like:
2
1 We reject the Government’s contention that all of the
2 electronic equipment seized from Rosa’s apartment could be
3 searched without a warrant because it was subject to later
4 forfeiture. The Government’s position that the entire contents
5 of Rosa’s computers and related storage media could be searched
6 under the terms of this warrant leads to the evisceration of the
7 Fourth Amendment’s requirement of an ex ante probable cause
8 determination. See United States v. Grubbs, 547 U.S. 90, 99
9 (2006) (explaining that the Fourth Amendment protects property
10 owners by interposing, ex ante, the impartial judgment of a
11 judicial officer).
14
1 United States Currency,” was not particular enough to limit the
2 scope of the search to evidence of the defendant’s suspected
3 crimes of loansharking and extortion. Id. at 1115. We further
4 held, however, that this lack of particularity “[did] not render
5 the warrant incurably defective.” Id. at 1116. Rather, we
6 looked to the particular facts in Bianco, and concluded that,
7 despite the absence of express incorporation and the lack of
8 attachment of the affidavit to the warrant, the federal agents
9 and the defendant were aware of the scope of and limitations on
10 the search, both of which were spelled out clearly in the
11 affidavit supporting the search warrant application. Id. at
12 1116-17. But see George, 975 F.2d at 76 (in a case decided only
13 one year prior to Bianco, stating that “[r]esort to an affidavit
14 to remedy a warrant’s lack of particularity is only available
15 when it is incorporated by reference in the warrant itself and
16 attached to it”).
17 To the extent that Bianco permits the consideration of
18 unincorporated and unattached supporting documents to cure an
19 otherwise defective search warrant, however, it has been
20 abrogated by the Supreme Court’s decision in Groh. In Groh,
21 federal agents from the Bureau of Alcohol, Tobacco and Firearms
22 (ATF) applied to search a private ranch in Montana for “any
23 automatic firearms or parts to automatic weapons, destructive
24 devices to include but not limited to grenades, grenade
15
1 launchers, rocket launchers, and any and all receipts pertaining
2 to the purchase or manufacture of automatic weapons or explosive
3 devices or launchers” after private visitors to the ranch
4 reported seeing a stockpile of weaponry and explosive devices on
5 the premises. 540 U.S. at 554. Along with the application, the
6 investigating ATF agent prepared a detailed affidavit setting
7 forth the factual basis for the search and a warrant form. Id.
8 The magistrate judge signed the warrant form, which failed to set
9 forth any of the items to be seized and instead described the
10 residential structure on the property as the concealed item.
11 Thereupon, the search warrant application and affidavit were
12 sealed. A team of federal and state officers, led by the ATF
13 agent, executed the search warrant the next day. As the search
14 was underway, the ATF agent described to the homeowners the
15 objects of the search but ultimately failed to uncover any
16 illegal weapons or explosives. Id. at 555.
17 In a civil suit for damages against the ATF agent and the
18 other executing officers, the homeowners asserted, inter alia, a
19 Fourth Amendment violation. Id. at 555. Before the Supreme
20 Court, the ATF agent-petitioner conceded that the warrant was
21 facially deficient because it lacked any description of the type
22 of evidence sought but pointed to the specificity in the
23 application. Id. at 557. In addressing whether the supporting
24 documents could save the warrant, the Court stated that “[t]he
16
1 fact that the application adequately described the ‘things to be
2 seized’ does not save the warrant from its facial invalidity”
3 because the Fourth Amendment “by its terms requires particularity
4 in the warrant.” Id. (emphasis in original). Having concluded
5 the warrant was deficient for failing to describe the items to be
6 seized, the Court considered it irrelevant that the magistrate
7 judge had issued the warrant based on probable cause, that the
8 ATF agent had orally described to the homeowners the items to be
9 seized, and that the actual search had not exceeded the limits
10 contemplated by the magistrate judge on the basis of the search
11 warrant application and affidavit. Id. at 558. In rejecting the
12 ATF agent-petitioner’s further claim that the warrant should be
13 upheld because the goals of the particularity requirement were
14 met under the facts of the case, the Court stated that the lack
15 of particularity in the warrant gave no written assurance that
16 the magistrate judge had found probable cause to search and seize
17 all of the items listed in the affidavit and that it was no
18 answer that the agents exercised self-restraint in executing the
19 otherwise limitless search authorized by the warrant. Id. at
20 560-61.
21 While we recognize that this case differs from Groh because
22 the warrant here did list specific items to be seized, the
23 description in the search warrant of Rosa’s residence was
24 overbroad and provided the officers with no judicial limit on the
17
1 scope of their search, especially as it related to the seizure of
2 electronically stored notes and records tending to identify
3 criminal conduct. Cf. Groh, 540 U.S. at 561; see United States
4 v. Liu, 239 F.3d 138, 140 (2d Cir. 2000) (“A warrant must be
5 sufficiently specific to permit the rational exercise of judgment
6 by the executing officers in selecting what items to seize.”
7 (internal quotation marks and alterations omitted)). Because we
8 may no longer rely on unincorporated, unattached supporting
9 documents to cure an otherwise defective search warrant, the
10 warrant fails for lack of particularity.
11 II. Application of the Exclusionary Rule
12 A violation of the Fourth Amendment does not necessarily
13 result in the application of the exclusionary rule, however.
14 “Indeed, exclusion has always been our last resort, not our first
15 impulse.” Herring v. United States, 129 S. Ct. 695, 700 (2009)
16 (internal quotation marks omitted).
17 Application of the exclusionary rule depends on the
18 “efficacy of the rule in deterring Fourth Amendment violations in
19 the future” as well as a determination that “the benefits of
20 deterrence . . . outweigh the costs.” Id.; see also United
21 States v. Julius, 610 F.3d 60, 66-67 (2d Cir. 2010) (discussing
22 Herring). Moreover, “[t]he extent to which the exclusionary rule
23 is justified by these deterrence principles varies with the
24 culpability of the law enforcement conduct.” Herring, 129 S. Ct.
18
1 at 702. Thus, in deciding to suppress evidence, we look to
2 whether “police conduct [is] sufficiently deliberate that
3 exclusion can meaningfully deter it, and sufficiently culpable
4 that such deterrence is worth the price paid by the justice
5 system.” Id.; see also United States v. Leon, 468 U.S. 897, 911
6 (1984) (“[A]n assessment of the flagrancy of the police
7 misconduct constitutes an important step in the calculus.”).
8 “The pertinent analysis of deterrence and culpability is
9 objective,” and “‘our good-faith inquiry is confined to the
10 objectively ascertainable question whether a reasonably well
11 trained officer would have known that the search was illegal’ in
12 light of ‘all of the circumstances.’” Herring, 129 S. Ct. at 703
13 (quoting Leon, 468 U.S. at 922 n.23).
14 In this case, a reasonably well trained officer is not
15 chargeable with knowledge that this search was illegal in the
16 particular circumstances before us. While we may no longer rely
17 on unincorporated, unattached supporting documents to cure a
18 constitutionally defective warrant, those documents are still
19 relevant to our determination of whether the officers acted in
20 good faith, because they contribute to our assessment of the
21 officers’ conduct in a particular case. See id. at 699 (“[W]e
22 must consider the actions of all the police officers involved.”);
23 see also Leon, 468 U.S. at 923 & n.24 (examining the
24 circumstances of the search to determine objective
19
1 reasonableness). Here, the application documents were drafted,
2 the warrant was issued, and the search of Rosa’s residence was
3 executed pursuant to a judicially authorized warrant in the three
4 hours from 2:00 a.m. to 5:00 a.m. The search warrant
5 application, Investigator Blake’s affidavit, and the documents
6 incorporated by the affidavit make clear that the purpose of the
7 search was to obtain evidence of child pornography and child
8 molestation. Indeed, the application and affidavit specifically
9 requested the issuance of a warrant to seize evidence depicting
10 Rosa’s sexual exploitation of children.3 In addition,
11 Investigator Blake swore to Justice Wells that based on his
12 specialized training, he believed that the electronic items to be
13 searched and seized were likely to reveal evidence of child
14 pornography. Moreover, as both the affiant and the officer in
15 charge of executing the search warrant and later searching the
3
1 In this respect, we find George, 975 F.2d at 74-78,
2 distinguishable. We find no basis for concluding that
3 Investigator Blake believed the warrant did not have to be
4 limited to obtaining evidence of a particular crime; rather, both
5 the search warrant application and supporting affidavit requested
6 authorization to search for evidence of child pornography and
7 child molestation and, moreover, specifically requested that the
8 search warrant be limited to obtaining evidence of these crimes.
9 Investigator Blake’s misstep, made in the course of a time-
10 sensitive and ongoing investigation, was in failing to notice
11 that this limiting language (or any specific language of
12 incorporation) was absent from the search warrant itself. We
13 conclude that suppressing physical evidence on the basis of such
14 an instance of “isolated negligence” would be incompatible with
15 the principles underlying the exclusionary rule. See Herring,
16 129 S. Ct. at 700-02.
20
1 digital media seized, Investigator Blake was intimately familiar
2 with the contemplated limits of the search. Finally, there is no
3 evidence that the team of officers searched for, or seized, any
4 items that were unrelated to the crimes for which probable cause
5 had been shown, or that Investigator Blake somehow misled the
6 town justice regarding the facts of the investigation and
7 intended scope of the search.
8 Upon examining the circumstances of the case, we conclude
9 that the officers acted reasonably and that the exclusionary rule
10 would serve little deterrent purpose in this case. Given the
11 time pressures and the content of the application and the
12 affidavit, it is only reasonable to conclude that the failure to
13 ensure that the items to be seized were properly limited under
14 the express terms of the warrant was simply an inadvertent error
15 that was the product of “isolated negligence.” Herring, 129 S.
16 Ct. at 698. There is nothing to suggest deliberateness and
17 culpability on the officers’ part. See United States v.
18 Riccardi, 405 F.3d 852, 863-64 (10th Cir. 2005) (applying the
19 good faith exception to an officer’s search of a seized computer
20 for evidence of child pornography despite the warrant’s lack of
21 particularity). “[E]ven assuming that the rule effectively
22 deters some police misconduct and provides incentives for the law
23 enforcement profession as a whole to conduct itself in accord
24 with the Fourth Amendment, it cannot be expected, and should not
21
1 be applied, to deter objectively reasonable law enforcement
2 activity.” Leon, 468 U.S. at 918-19; see Herring, 129 S. Ct. at
3 704 (“In light of our repeated holdings that the deterrent effect
4 of suppression must be substantial and outweigh any harm to the
5 justice system, we conclude that when police mistakes are the
6 result of negligence . . . rather than systemic error or reckless
7 disregard of constitutional requirements, any marginal deterrence
8 does not ‘pay its way.’” (internal citations omitted)).
9 Rosa invokes Leon’s language that good faith may not be
10 found where a “warrant [is] so facially deficient–i.e., in
11 failing to particularize the place to be searched or the things
12 to be seized,” to argue that a reasonable officer could not rely
13 on this search warrant in good faith and that the exclusionary
14 rule should therefore apply. He likewise relies on the Supreme
15 Court’s denial of qualified immunity to the ATF agent in Groh as
16 further support for applying the exclusionary rule. Not every
17 facially deficient warrant, however, will be so defective that an
18 officer will lack a reasonable basis for relying upon it, see
19 Otero, 563 F.3d at 1134; Riccardi, 405 F.3d at 864, and the
20 defective warrant in this case certainly did not have the glaring
21 deficiencies of the itemless warrant in Groh. Moreover, the
22 Court has made clear since Leon that while the objective
23 inquiries underlying the good faith exception and qualified
24 immunity are the same, see Groh, 540 U.S. at 565 n.8, application
22
1 of the exclusionary rule requires the additional determination
2 that the officers’ conduct was “sufficiently deliberate that
3 exclusion can meaningfully deter it, and sufficiently culpable
4 that such deterrence is worth the price paid by the justice
5 system,” Herring, 129 S. Ct. at 702. Because there is no
6 evidence that Investigator Blake and his team of officers
7 actually relied on the defective warrant, as opposed to their
8 knowledge of the investigation and the contemplated limits of the
9 town justice’s authorization, in executing the search, the
10 requisite levels of deliberateness and culpability justifying
11 suppression are lacking. Cf. Groh, 540 U.S. at 569 (Kennedy, J.,
12 dissenting) (“The issue in this case is whether an officer can
13 reasonably fail to recognize a clerical error, not whether an
14 officer who recognizes a clerical error can reasonably conclude
15 that a defective warrant is legally valid.”); id. at 579 (Thomas,
16 J., dissenting) (“[T]he Court does not even argue that the fact
17 that [the agent] made a mistake in preparing the warrant was
18 objectively unreasonable, nor could it. . . . The only remaining
19 question is whether [his] failure to notice the defect was
20 objectively unreasonable.”).
21 The circumstances surrounding the investigation and
22 application for a warrant, conducted with necessary speed in the
23 early hours of the morning, and the search, executed by a team
24 led by the application’s affiant, demonstrate that the officers
23
1 proceeded as though the limitations contemplated by the
2 supporting documents were present in the warrant itself, and, as
3 a result, their actions “bear none of the hallmarks of a general
4 search.” Liu, 239 F.3d at 141. Under the facts of this case, we
5 conclude that the benefits of deterrence do not outweigh the
6 costs. In so holding, however, we reiterate the importance of
7 law enforcement’s compliance with the probable cause and
8 particularity requirements of the Fourth Amendment and emphasize
9 that application of the exclusionary rule will vary in accordance
10 with the facts of each case.
11
12 CONCLUSION
13 For the forgoing reasons, we AFFIRM the district court’s
14 denial of Rosa’s motion to suppress.
15
24