United States v. Tracey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-3290

UNITED STATES OF AMERICA

Appellant
v.

RALPH DOUGLAS TRACEY

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-08-cr-00126-1)
District Judge: Honorable William W. Caldwell

Argued September 29, 2009

Before: RENDELL and AMBRO, Circuit Judges
and McVERRY,* District Judge

*
Honorable Terrence F. McVerry, United States District
Judge for the Western District of Pennsylvania, sitting by
designation.
 (Opinion filed March 1, 2010 )

Martin C. Carlson
United States Attorney
Theodore B. Smith, III (Argued)
Gordon A.D. Zubrod
Assistant United States Attorney
Criminal Appeals
Office of the United States Attorney
228 Walnut Street,
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108-0000

Counsel for Appellant

Steve Rice, Esquire (Argued)
18 Carlisle Street, Suite 215
Gettysburg, PA 17325

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

The United States Government appeals the order of the

2
District Court suppressing evidence seized and a statement made
during a search conducted pursuant to a warrant. The Court
held that the warrant was general and not cured by the affidavit
of probable cause because it was not incorporated into the
warrant. The Court also concluded that a reasonably objective
police officer would have recognized that the warrant was
defective, and thus the good faith exception to the exclusionary
rule did not apply. On appeal, the Government argues that the
warrant was not general because it incorporated the narrower
affidavit, that the search was limited to the scope of that
affidavit, and that, in any event, the good faith exception applies
to the circumstances of this case.

Relying on our decision in Doe v. Groody, 361 F.3d 232
(3d Cir. 2004), we conclude that the warrant did not incorporate
the affidavit of probable cause, and thus the narrower affidavit
did not cure the concededly overbroad warrant. We also
conclude that the Government waived any arguments based on
the exception to the incorporation rule applied in United States
v. Leveto, 540 F.3d 200 (3d Cir. 2008), cert. denied, 129 S. Ct.
2790 (2009), by failing to raise them before the District Court.
However, we hold that application of the exclusionary rule is not
justified because the officers acted in good faith by relying on
the validity of the warrant. Accordingly, we reverse the District
Court’s order suppressing the evidence seized as a result of the
search and the statement made during the search, and remand for
further proceedings.

3
 I. Factual and Procedural Background

After conducting an investigation into the Internet
distribution of a video containing images of an adult male
having vaginal sex with a minor female, the Chief of the Liberty
Township Police Department, James Holler, presented an
application for a search warrant to a Magistrate Judge in Adams
County, Pennsylvania.1 Holler prepared the application for the
warrant and a seven-page affidavit of probable cause that
accompanied the application.2 He used a standard form issued
by the Administrative Office of Pennsylvania Courts that was
titled “Application For Search Warrant And Authorization.”
The form included the application and warrant on a single page
divided into several sections. Under the block titled “Identify
Items To Be Searched For And Seized,” which directs
applicants to “be as specific as possible,” Holler wrote:

Any items, images, or visual depictions

1
Charges against Tracey were initially filed in the Court of
Common Pleas of Adams County, Pennsylvania. Before state
prosecution was terminated in favor of federal prosecution, the
Court of Common Pleas Judge held preliminary and pretrial
hearings and denied the motion to suppress Tracey filed in that
Court. In its opinion, the District Court relied on the state
court’s factual findings and therefore did not hold an evidentiary
hearing.
2
Both documents are appended to this opinion.

4
 representing the possible exploitation of children
including video tapes or photographs.

COMPUTERS: Computer input and output
devices to include but not limited to keyboards,
mice, scanners, printers, monitors, network
communication devices, modems and external or
connected devices used for accessing computer
storage media.

In the block requiring a “Specific Description Of Premises
And/Or Person To Be Searched,” Holler included an address
and a detailed description of two buildings located at that
address. He listed Ralph Douglas Tracey, the defendant, as the
owner or occupant of the premises to be searched.

The box below the name of the owner of the premises
was divided into four partitions. The first and second partitions
asked for “Violation of” and the “Date(s) of Violation.” Holler
wrote “6312(c),(d) PA Crimes Code” 3 and listed the date of the

3
When the warrant was issued, 18 Pa. Cons. Stat. Ann. §
6312 stated in relevant part:
(c) Dissemination of photographs, videotapes, computer
depictions and films.–
(1) Any person who knowingly sells, distributes, delivers,
disseminates, transfers, displays or exhibits to others, or who
possesses for the purpose of sale, distribution, delivery,

5
violation as January 9, 2006. Another portion of this box
provided three small boxes for an applicant to check. Holler
checked all three, indicating that: 1) the warrant application had
been approved by the district attorney; 2) additional pages, other
than the affidavit of probable cause, were attached; and 3) the
affidavit of probable cause was attached. The box pertaining to
the probable cause affidavit stated “Probable Cause Affidavit(s)
MUST be attached (unless sealed below).” [A 34] It was

dissemination, transfer, display or exhibition to others, any
book, magazine, pamphlet, slide, photograph, film, videotape,
computer depiction or other material depicting a child under the
age of 18 years engaging in a prohibited sexual act or in the
simulation of such act commits an offense.
(d) Possession of child pornography.–
(1) Any person who knowingly possesses or controls any book,
magazine, pamphlet, slide, photograph, film, videotape,
computer depiction or other material depicting a child under the
age of 18 years engaging in a prohibited sexual act or in the
simulation of such act commits an offense. 18 Pa. Cons. Stat.
Ann. § 6312 (amended 2009).
A “prohibited sexual act” was defined as “sexual
intercourse . . . , masturbation, sadism, masochism, bestiality,
fellatio, cunnilingus, lewd exhibition of the genitals or nudity if
such nudity is depicted for the purpose of sexual stimulation or
gratification of any person who might view such depiction.” Id.
The statute was amended during the pendency of the appeal, see
H.B. 89, 193rd Gen. Assem., Reg. Sess. (Pa. 2009), but the
amendments are not material to this case.

6
followed by a sentence requesting that the applicant identify the
total number of pages. Holler handwrote “7” in response to this
inquiry. Underneath this section, he signed the form, indicating
that he swore there was probable cause to believe that “certain
property” was evidence of a crime and was located at the
“particular premises” described above. In a separate box below
Holler’s signature, the Magistrate Judge signed and attached a
seal, indicating that the affidavit had been sworn before him on
January 30, 2006.

On the same page as the application, and immediately
below the box containing the Magistrate Judge’s signature, there
is a final box, titled “Search Warrant,” containing the following
language:

WHEREAS, facts have been sworn to or affirmed
before me by written affidavit(s) attached hereto,
from which I have found probable cause, I do
authorize you to search the premises or person
described, and to seize, secure, inventory and
make return according to the Pennsylvania Rules
of Criminal Procedure.

The Magistrate Judge indicated when the warrant could be
served. Below the date and time, the Magistrate Judge signed
the warrant and attached a seal. The seven-page affidavit of
probable cause was attached to the application and the warrant,
and the bottom of each page of the affidavit included the

7
signature of Holler and the date, along with the signature of the
Magistrate Judge, the seal, and the date.

The affidavit of probable cause provided detailed
information on the investigation of Tracey. According to the
affidavit, an officer was investigating the distribution of child
pornography on the Internet by using software to recognize and
match files known to contain child pornography. The officer
found a file name that matched a known movie file. The
affidavit included the digital signature of the file and stated that
this file was a video of an adult male having vaginal sex with a
minor female.

The officer downloaded the movie file and confirmed its
contents. The officer then determined the Internet Protocol
(“IP”) address of the computer distributing the film and sought
a court order directing Adelphia, the internet service provider,
to provide subscriber information for the IP address along with
connection-access logs. Adelphia responded that the account of
the IP address was registered to Doug Tracey of Fairfield,
Pennsylvania. The Liberty Township Police Department then
became involved in the investigation. After confirming the
Adelphia account information, Holler visited the address listed
on the Adelphia account and observed a house with an attached
body shop.

The affidavit also included information about the items
the officers expected to seize during the search. On page two of

8
the affidavit, Holler stated that he expected to find “within the
residence of 2896 Tract Road, Liberty Township, Adams
County, PA 17320, items which are/were used to commit the
crime of Sexual Abuse of Children, to wit, 18 PA. C.S.A.
section 6312(c), (d).” He further stated:

Your affiant has delineated the items your affiant
expects to find within said location which is
captioned under “items to be searched for and
seized” and your affiant incorporates that list
therein. Possession of these items are either in
and of themselves a crime or they are/were
utilized to commit a crime, to wit, Sexual [A]buse
of [C]hildren, 18 PA. C.S.A. section 6312(c), (d).

Additionally, in a section of the affidavit titled “Seizure of
Computers and Digital Evidence,” the affidavit described the
sort of evidence likely to be associated with crimes involving
child pornography, including floppy disks, hard drives, tapes,
DVDs, and CD-ROMs, and explained why it was necessary to
seize these items and search them offsite. The search also was
expected to produce items that showed ownership or use of the
computers and ownership of the home.

Holler and three other officers served the warrant on the
day it was issued. During the search, Holler explained the
search warrant to Tracey and his wife, informing them that he
was searching for child pornography. Tracey allegedly told

9
Holler that he may have accidentally downloaded one movie
containing child pornography. After a search of the defendant’s
home and the shop adjoining his home, the officers seized: one
working laptop computer, one broken laptop computer, two
floppy disks, two computer towers with power cords, one Sony
video cassette, four other videotapes, one box of 19 video
cassette tapes, and one bag of 19 videotapes. After examining
one of the computer towers, officers removed 208 images and
48 movies allegedly containing child pornography. The
Commonwealth filed charges against Tracey in state court based
on 189 images and 33 movies that it alleged contained child
pornography.

State prosecution was then terminated in favor of federal
prosecution. A federal grand jury in the Middle District of
Pennsylvania returned a two-count indictment charging Tracey
with receiving and distributing child pornography in violation of
18 U.S.C. § 2252A(a)(2)(A) and possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
Tracey entered a plea of not guilty and was released subject to
conditions.

Tracey then filed a motion to suppress, arguing that the
evidence seized pursuant to the search warrant must be
suppressed because the warrant lacked the particularity required
by the Fourth Amendment. He also asked that his statement
during the search be suppressed as fruits of this illegal search.
The Government opposed the motion. The District Court

10
granted the motion to suppress, and the Government filed a
timely appeal.

II. Discussion

The District Court had subject matter jurisdiction over
this criminal case pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 18 U.S.C. § 3731.

We review the District Court’s decision to grant a motion
to suppress under a mixed standard of review. See United States
v. Crandell, 554 F.3d 79, 83 (3d Cir. 2009). We review its
findings of fact for clear error, but exercise plenary review over
its legal conclusions. See id.4

A. Did the Warrant Incorporate the Affidavit of Probable
Cause?

Before the District Court, the Government conceded that
the description of the items to be searched for and seized in the
application (and therefore the warrant) lacked the particularity

4
Tracey does not contend that a different standard of review
applies to the District Court’s factual determinations because
that Court relied on the state court’s findings of fact instead of
holding an evidentiary hearing, cf. United States v. Wilson, 413
F.3d 382, 385–86 (3d Cir. 2005), and, in any case, the District
Court’s factual findings are undisputed.

11
required by the Fourth Amendment unless the affidavit of
probable cause was incorporated. On appeal, it contends that
Holler did everything he could to incorporate the affidavit into
the warrant within the confines of the form and that the standard
language on the warrant explicitly incorporated the affidavit.
Tracey responds that Holler failed to incorporate the affidavit of
probable cause into the warrant, and thus the affidavit does not
cure the warrant’s lack of particularity.

The Fourth Amendment to the Constitution guarantees
the “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 directs 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.” Id. “The requirement that warrants shall
particularly describe the things to be seized makes general
searches under them impossible and prevents the seizure of one
thing under a warrant describing another. As to what is to be
taken, nothing is left to the discretion of the officer executing
the warrant.” Marron v. United States, 275 U.S. 192, 196
(1927). Along with preventing general searches, the
particularity requirement serves two other functions. It
“memorializes precisely what search or seizure the issuing
magistrate intended to permit,” Groody, 361 F.3d at 239, and
informs the subject of the search “of the lawful authority of the
executing officer, his need to search, and the limits of his power
to search,” Groh v. Ramirez, 540 U.S. 551, 561 (2004) (quoting

12
United States v. Chadwick, 433 U.S. 1, 9 (1977)).5

Along with other Courts of Appeals, we have held that an
affidavit may be used in determining the scope of a warrant that
lacks particularity if the warrant is “accompanied by an affidavit
that is incorporated by reference.” United States v. Johnson,
690 F.2d 60, 64 (3d Cir. 1982); see also Groh, 540 U.S. at
557–58 (“[M]ost Courts of Appeals have held that a court may
construe a warrant with reference to a supporting application or
affidavit if the warrant uses appropriate words of incorporation,
and if the supporting document accompanies the warrant.”).
“[T]o take advantage of this principle of interpretation, the
warrant must expressly incorporate the affidavit,” and the
incorporation must be “clear.” Groody, 361 F.3d at 239; see
also Bartholomew v. Pennsylvania, 221 F.3d 425, 428–29 & n.4
(3d Cir. 2000). As with the particularity requirement, the
primary purposes of this incorporation rule are to “limit the
[officers’] discretion as to what they are entitled to seize” and
“inform the subject of the search what can be seized.”
Bartholomew, 221 F.3d at 429.

The issue, then, is whether the warrant incorporated the
affidavit. We are guided in this regard by Doe v. Groody.

5
Of course, the Fourth Amendment does not require the
officer to provide a copy of the warrant to the subject before he
conducts the search. See United States v. Grubbs, 547 U.S. 90,
98–99 (2006); Groh, 540 U.S. at 562 n.5.

13
There, a mother and daughter brought a § 1983 action against
officers who searched them during a search of their home. 361
F.3d at 236–37. Although the officers searched pursuant to a
warrant, the face of the warrant only authorized the officers to
search the home and the male resident of the home. Id. at 236,
239. The officers, recognizing that the face of the warrant did
not authorize them to search the females, argued that the scope
of the warrant should be construed with reference to the
accompanying affidavit, which did request permission to search
all occupants of the house. Id. at 239.

We held that the warrant had not “expressly
incorporate[d]” the affidavit so as to permit this construction of
the warrant. Id. The warrant specifically referred to the
affidavit in response to the questions about the date of the
violation and the supporting probable cause, but did not mention
the affidavit in response to the question concerning the premises
or people to be searched. Id. at 239. That the affidavit was
expressly referenced in certain sections “demonstrate[d] that
where the face sheet was intended to incorporate the affidavit,
it said so explicitly.” Id. Thus, “the absence of a reference to
the affidavit” in the section describing the premises and persons
to be searched “negat[ed] any incorporation of that affidavit.”
Id. at 240.

In contrast, we have held that including the statement
“see Exhibit A sealed by Order of the Court” in the items-to-be-
seized section of the warrant incorporated that exhibit

14
containing a list of items to be seized. See Bartholomew, 221
F.3d at 429; see also Bartholomew v. Pennsylvania, No. 97-
5684, 1999 WL 415406, at *1 (E.D. Pa. June 23, 1999), rev’d,
221 F.3d 425.6 Similarly, we held an affidavit was incorporated
where the warrant “direct[ed] the police officers to search the
defendant’s premises ‘for . . . evidence which is specified in the
annexed affidavit.’” United States v. Johnson, 690 F.2d at 64.7

Other Courts of Appeals have accepted phrases such as
“attached affidavit which is incorporated herein,” “see attached
affidavit,” and “described in the affidavit,” as suitable words of
incorporation. See, e.g., United States v. Waker, 534 F.3d 168,
172 n.2 (2d Cir. 2008); United States v. McGrew, 122 F.3d 847,
849 (9th Cir. 1997); United States v. Curry, 911 F.2d 72, 76–77
(8th Cir. 1990).

6
However, because Exhibit A was sealed, the Court
concluded that it could not be used to construe the scope of the
warrant. See id. at 429–30. In that context, the warrant lacked
the particularity required by the Fourth Amendment. See id.
7
We have required incorporation to be explicit when officers
seek to use the affidavit either to broaden the warrant or to
narrow it. See Groody, 361 F.3d at 239–40 (broadening);
Johnson, 690 F.2d at 64–66 (narrowing). We have not indicated
that there would be reason to apply a less exacting standard
when the officers seek to use the affidavit to narrow the scope
of the warrant.

15
 Here, we agree with the District Court—albeit for
different reasons—that the warrant did not adequately
incorporate the affidavit of probable cause. The face sheet of
the application and the warrant do not contain any explicit words
of incorporation. More importantly, the description of the items
to be searched for and seized does not incorporate the affidavit.
The first reference to the affidavit on the application and
warrant requires that the affidavit be attached to the application
and asks for the total number of pages. The box is checked and
“7” is handwritten in the blank. However, these markings do
not suggest that the description of the items to be seized is to be
read in conjunction with the affidavit. The second reference
appears in the Search Warrant section of the form, where
preprinted words state that the Magistrate Judge has found
probable cause from the “facts [that] have been sworn to or
affirmed before me by written affidavit(s) attached hereto.”
Again, this statement gives no indication that the items-to-be-
seized section is to be read with reference to the affidavit. See
Groh, 540 U.S. at 555 (rejecting a similar statement as
insufficient to incorporate the application or affidavit of
probable cause into the warrant); see also Curry, 911 F.2d at
76–77 (finding the following language insufficient to
incorporate the affidavit: “Whereas, the application and
supporting affidavit of Det. Ross Swanson [were] duly
presented and read by the Court, and being fully advised in the
premises . . . .”). Thus the only two references to the affidavit
fail to incorporate expressly the affidavit into the warrant’s
description of the items to be searched for and seized if found.

16
 The Government argues that Holler did all he could to
incorporate the affidavit by checking the box, writing in the
number of pages, attaching it to the application and warrant, and
signing below the preprinted language. But if Holler intended
to incorporate the affidavit into the description of items to be
seized, he could have written “see affidavit,” “as further
described in the affidavit,” or any other words of incorporation.
This requirement is not difficult, yet it went unmet in this case.

The Government’s other arguments regarding
incorporation are unpersuasive. It correctly argues that this case
is distinguishable from Groh because the warrant there
contained no words of incorporation and neither the application
nor the affidavit accompanied the warrant. 540 U.S. at 557–58.
But this argument does not help the Government — our Court
requires clear words of incorporation to cure a warrant lacking
particularity.

The Government also contends that the District Court
failed to recognize that the application and warrant are one
document pursuant to the Pennsylvania Rules of Criminal
Procedure. The Government argues that, under Pennsylvania
practice, the description of the items to be seized is to be listed
in the affidavit, not the application, and the affidavit must be
served with the warrant. See Pa. R. Crim. P. 205 and 206. It
posits that this practice serves the purpose of the incorporation
rule by providing the agents and the subject with notice of the
limits of the search. This argument ignores that the

17
Pennsylvania Rules, in accordance with the federal Constitution,
also require that the search warrant itself “identify specifically
the property to be seized” and “describe with particularity the
person or place to be searched.” See Pa. R. Crim. P. 205.

Accordingly, we hold that for an affidavit to cure a
warrant’s lack of particularity, the words of incorporation in the
warrant must make clear that the section lacking particularity is
to be read in conjunction with the attached affidavit.8 Merely
referencing the attached affidavit somewhere in the warrant
without expressly incorporating it does not suffice. In this case,
a reader of the warrant would know that an affidavit is attached,
but would have no indication that the attached affidavit limits
the officers in their search. Because the warrant did not
explicitly incorporate the affidavit of probable cause into the
description of the items to be searched for and seized, the
warrant’s lack of particularity is not cured by the affidavit.

B. The Scope of the Actual Search

The Government’s alternative argument is that, even if
the affidavit were not incorporated into the warrant, its lack of
particularity was cured because the affidavit accompanied the

8
These words of incorporation need not be included in the
section lacking particularity, as long as the words of
incorporation in the warrant make clear that the section is to be
read with reference to the affidavit.

18
warrant, and the search was confined to the narrower scope of
the affidavit. See, e.g., Leveto, 540 F.3d at 211. However, the
Government waived this argument by failing to raise it before
the District Court.

A suppression argument raised for the first time on
appeal is waived unless good cause is shown. See United States
v. Rose, 538 F.3d 175, 182 (3d Cir. 2008). Thus we must first
determine if the argument was raised before the District Court
or, in the alternative, if the Government has shown good cause
for failing to raise the argument earlier.

In Groody we recognized that other Courts of Appeals
allow two exceptions to the general rule requiring that the
affidavit be incorporated into the warrant. 361 F.3d at 240. The
first exception allows a court to reference an unincorporated
affidavit when the warrant contains “an ambiguity” or a clerical
error that could be clarified by the affidavit. Id. The second
exception provides that an unincorporated affidavit can cure an
overly broad warrant if the actual search is restricted to the
narrower scope of the affidavit. Id. We declined to apply the
second exception in Groody because the case involved an
affidavit and an actual search that were broader in scope than
the terms of the warrant. Id. at 241. We emphasized the
distinction between allowing an unincorporated affidavit to
broaden, rather than limit, the scope of the search permitted by
the warrant. Id. (“[T]he officers seek to use the affidavit to
expand, rather than limit, the warrant. That makes all the

19
difference . . . . [I]t is one thing if officers use less than the
authority erroneously granted by a judge. It is quite another if
officers go beyond the authority granted by the judge.”
(emphases in original)).

But in our case, the Government did not argue before the
District Court that the warrant could be cured by the narrower
affidavit and the actual search even if the affidavit were not
incorporated into the warrant. A footnote in the District Court’s
memorandum opinion shows that the Court did not believe this
argument was before it. See United States v. Tracey, No. 1:08-
126, 2008 WL 2622908, at *4 n.4 (M.D. Pa. June 30, 2008)
(“We do not explore whether Ortega-Jimenez and cases like it
might allow us to rely on the unincorporated affidavit[,] as the
government does not argue that incorporation is not necessary,
preferring instead to contend that incorporation in the
application is all that is needed.”). This argument is thus waived
unless the Government can show good cause for its failure to
raise it. See Rose, 538 F.3d at 182.

The Government argues that it had good cause because
United States v. Leveto — the first decision in our Court
upholding the use of the second exception discussed in Groody
— was filed after the District Court’s opinion in Tracey. See
Leveto, 540 F.3d at 211–12. However, the Government easily
could have distinguished Groody in its argument to the District
Court before Leveto was issued. Even a cursory review of
Groody reveals that it recognized the exception at issue, but

20
concluded that it could not be applied to expand the scope of a
warrant. See 361 F.3d at 240–41. Our opinion in Groody
provided the Government with the authority it needed to make
this argument, but it failed to do so. The Government has not
shown a good reason for this failure, and, accordingly, its
argument is waived on appeal. See Rose, 538 F.3d at 182.

C. The Good Faith Exception

Before the District Court, the Government conceded that
the description of the items to be seized on the face of the
warrant did not meet the Fourth Amendment’s particularity
requirement unless it was construed with reference to the
narrower affidavit. In the event that the District Court
concluded that the warrant did not incorporate the affidavit, the
Government contended that the good faith exception to the
exclusionary rule applied.9 The Court rejected this argument,

9
Tracey argues that the Government did not make certain
arguments in favor of the good faith exception before the
District Court, and thereby also waived them on appeal. Before
that Court, however, the Government contended that the good
faith exception applied because excluding the seized evidence
in this case would not deter misconduct where Holler could have
reasonably relied on the validity of the warrant, believing that he
had incorporated the attached affidavit into the warrant.
Accordingly, the good faith argument was not waived and will
be addressed on the merits.

21
holding that the good faith exception did not apply because the
warrant was general and the description of the items to be
searched for and seized was “so facially defective that no
reasonable police officer should have relied on it.” Tracey,
2008 WL 2622908, at *5.

In United States v. Leon, the Supreme Court recognized
that the purpose of the exclusionary rule — to deter police
misconduct — would not be furthered by suppressing evidence
obtained during a search “when an officer acting with objective
good faith has obtained a search warrant from a judge or
magistrate and acted within its scope.” 468 U.S. 897, 919–20
(1984). The Court explained that “[i]n the ordinary case, an
officer cannot be expected to question the magistrate’s probable-
cause determination or his judgment that the form of the warrant
is technically sufficient.” Id. at 921; see also Massachusetts v.
Sheppard, 468 U.S. 981, 988–90 (1984) (holding that the good
faith exception applied in a case where the warrant lacked
particularity because the officers reasonably believed the
warrant was valid). Thus “evidence should be suppressed ‘only
if it can be said that the law enforcement officer had knowledge,
or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.’” Herring v.
United States, 129 S. Ct. 695, 701–02 (2009) (quoting Illinois v.
Krull, 480 U.S. 340, 348–49 (1987)).

Accordingly, a determination that the Fourth Amendment
has been violated does not necessarily require application of the

22
exclusionary rule. Id. at 700; see also Leon, 468 U.S. at 919–20.
It applies when it serves “to safeguard Fourth Amendment rights
. . . through its deterrent effect.” United States v. Calandra, 414
U.S. 338, 348 (1974). To determine whether to apply the rule
in a particular case, we weigh the benefits of the rule’s deterrent
effects against the costs of exclusion, which include “letting
guilty and possibly dangerous defendants go free.” Herring,
129 S. Ct. at 700, 701. Because of the high social costs of
excluding evidence in a criminal case, the Supreme Court has
instructed that the exclusionary rule should only be applied
when “police conduct [is] . . . sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable
that such deterrence is worth the price paid by the justice
system.” Id. at 702. Accordingly, we apply the rule when police
conduct is “deliberate, reckless, or grossly negligent,” or when
it will deter “recurring or systemic negligence.” Id. Put another
way, isolated negligent acts on the part of the police do not
warrant application of the exclusionary rule. See id.

We have previously recognized that the good faith
exception does not apply in four limited circumstances:

1) where the magistrate judge issued the warrant
in reliance on a deliberately or recklessly false
affidavit;

2) where the magistrate judge abandoned his or
her judicial role and failed to perform his or her

23
 neutral and detached function;

3) where the warrant was based on an affidavit so
lacking in indicia of probable cause as to render
official belief in its existence entirely
unreasonable; or

4) where the warrant was so facially deficient that
it failed to particularize the place to be searched
or the things to be seized.

United States v. Zimmerman, 277 F.3d 426, 436–37 (3d Cir.
2002) (quoting United States v. Hodge, 246 F.3d 301, 308 (3d
Cir. 2001)). These limited exceptions are consistent with the
approach taken in Herring because each of these circumstances
involve conduct that is “deliberate, reckless, or grossly
negligent,” and thus the benefits of deterring future misconduct
“outweigh the costs” of excluding the evidence. Herring, 129
S. Ct. at 700, 702. In this case, the District Court determined
that the fourth exception applied because the warrant failed to
particularize the items to be seized.

We part paths here. The description of the items to be
searched for and seized was as follows:

Any items, images, or visual depictions
representing the possible exploitation of children
including video tapes or photographs.

24
COMPUTERS: Computer input and output devices to include
but not limited to keyboards, mice, scanners, printers, monitors,
network communication devices, modems and external or
connected devices used for accessing computer storage media.

The Government conceded that the phrase “possible exploitation
of children” was overly broad. However, in the attached
affidavit, Holler wrote that he “expect[ed] to find within the
residence . . . items which are/were used to commit the crime of
Sexual Abuse of Children, to wit, C.S.A. section 6312 (c), (d).”
The detailed affidavit also included the specific digital signature
of the video of an adult male having vaginal sex with a minor
female, and explained why seizure of the computer equipment
was necessary. When read with reference to the attached
affidavit, it is clear that the warrant authorized the officers to
search for evidence of violations of 18 Pa. Cons. Stat. Ann.
§ 6312(c) and (d). The attached affidavit, therefore, provides
the particularity necessary to satisfy the Fourth Amendment.10

10
We recognize, as the District Court did, that Holler
incorporated the problematic description in the warrant into the
affidavit. However, the words of incorporation in the affidavit
are succeeded by the following sentence: “Possession of these
items are either in and of themselves a crime or they are/were
utilized to commit a crime, to wit, Sexual abuse of children, 18
PA.C.S.A. section 6312(c), (d).” Reading the sentences
together, the description incorporated from the warrant is limited
by the language indicating that the officers were seeking

25
 Though the Government conceded that the lack of
particularity on the face of the search warrant violated the
Fourth Amendment, we believe that Holler could have
reasonably relied on the warrant because a reasonable officer in
his position would assume that the warrant incorporated and
would be construed with the attached affidavit. As noted above,
in Groody we held that a warrant must “expressly incorporate”
an affidavit in order for the warrant to be construed with
reference to the affidavit. 361 F.3d at 239. Here, Holler
checked the box indicating that the probable cause affidavit was
attached and handwrote the number “7” to indicate the total
number of pages. Notably, this language required the affidavit
to be attached unless it was sealed. Next, Holler and the
Magistrate Judge signed and the Magistrate Judge sealed each
page of the seven-page affidavit, which was attached to the
warrant.

Given the format of the Pennsylvania form Holler used,
a reasonable police officer in Holler’s position might assume
that he had in fact “expressly” incorporated the affidavit by
checking the boxes regarding the affidavit and attaching the
affidavit to the warrant. Even though we conclude these efforts
were not legally sufficient because the warrant does not clearly

permission to search for and seize evidence of violations of a
specific statute’s subsections. Accordingly, the affidavit
particularly described the items to be searched for and seized.

26
indicate that the items-to-be-seized section is to be read with
reference to the attached affidavit, an officer could
understandably believe that he had met the requirements of the
Fourth Amendment.11 See United States v. Cardall, 773 F.2d
1128, 1133 (10th Cir. 1985) (“[I]t must . . . be remembered that
the knowledge and understanding of law enforcement officers
and their appreciation for constitutional intricacies are not to be
judged by the standards applicable to lawyers.”). Our cases
recognize that an incorporated affidavit may narrow the scope
of a warrant, and it would be reasonable for an officer in
Holler’s position to believe the affidavit was properly
incorporated and, therefore, the warrant was valid. See United
States v. Hamilton, 591 F.3d 1017, 1026, 1028–29 (8th Cir.
2010) (finding that the good faith exception applied even though
the face of warrant lacked particularity, and it was unclear
whether the affidavit was incorporated into the description of
the items to be seized, because the officer had an objectively
reasonable belief that the warrant and its reference to the
affidavit authorized the search).

In addition to holding a reasonable belief that the
warrant incorporated the narrower affidavit, Holler’s use of the

11
The reasonableness of Holler’s belief is supported by the
fact that the Court of Common Pleas Judge, who ruled on
Tracey’s pretrial motions in state court, concluded that the
description of the items to be seized in the warrant must be read
with reference to the affidavit of probable cause.

27
phrase “possible exploitation of children” on the face of the
warrant does not make it “so facially deficient” that no
reasonable officer could rely on it. The section below the
description of the items to be seized and the premises to be
searched is titled “Violation of,” and directs the applicant to
“[d]escribe conduct or specify statute.” In response, Holler
wrote in “6312(c),(d) PA Crimes Code,” identifying the
Pennsylvania statute criminalizing the dissemination and
possession of media containing depictions of “a child under the
age of 18 years engaging in a prohibited sexual act.” See 18 Pa.
Cons. Stat. Ann. § 6312. The warrant also identifies the date of
the violation as January 9, 2006 — the day the officer found the
video of an adult male having vaginal sex with a minor female
by searching the peer-to-peer networks. In this context, a
reasonable officer could rely on the validity of the warrant if he
believed that the phrase “possible exploitation of children”
would be read in conjunction with the statute, and thus the type
of exploitation of children they were authorized to search for
was limited to sexual abuse of children in violation of § 6312(c)
and (d).

A reasonable officer would also have confidence in the
validity of the warrant after presenting it and having it approved
by a district attorney and the Magistrate Judge, as occurred here.
See, e.g., United States v. Otero, 563 F.3d 1127, 1134–36 (10th
Cir. 2009), cert. denied, 130 S. Ct. 330 (2009) (holding that the
good faith exception applied to a warrant that lacked
particularity, in part because the agent consulted with the

28
Assistant United States Attorney, who informed her it met legal
requirements); cf. United States v. Hallam, 407 F.3d 942, 947
(8th Cir. 2005) (concluding that the good faith exception applied
where the officer relied on the prosecutor’s determination that
the affidavit provided probable cause).

We also note that the application of the good faith
exception is appropriate because Holler, who drafted the
narrower affidavit and was aware of its limits, led the search
team at Tracey’s home. In accordance with the narrower
affidavit, Holler informed Tracey and his wife that he was
searching for child pornography when the officers arrived at
Tracey’s home. Indeed, all of the items seized from Tracey’s
home were video or computer equipment, and the 208 images
and 48 movies taken from one of the computers all allegedly
contained child pornography — consistent with the scope of the
narrower affidavit. These facts support our good faith
determination and demonstrate that the primary purposes of the
Fourth Amendment’s particularity requirement — limiting the
officers’ discretion and notifying the subjects of the scope of the
authorized search and seizure — were achieved in this case. See
United States v. Riccardi, 405 F.3d 852, 861–64 (10th Cir.
2005) (holding that the good faith exception applied where the
warrant lacked particularity, but the affidavit limited the scope
of the search, the officers were aware of the affidavit, and the
search was limited to that permitted by the affidavit).

Tracey urges that the good faith exception does not apply

29
because the warrant is “general,” and that good faith cannot save
a general warrant. Appellee’s Br. 26 (citing United States v.
Yusuf, 461 F.3d 374 (3d Cir. 2006)). We reject Tracey’s
argument that the warrant was “general” such that it “vest[ed]
the executing officers with unbridled discretion to conduct an
exploratory rummaging through [a defendant’s] papers in search
of criminal evidence.” United States v. Ninety-Two Thousand
Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307
F.3d 137, 149 (3d Cir. 2002) (quoting United States v. Christine,
687 F.2d 749, 753 (3d Cir. 1982)). Examples of general
warrants are those authorizing searches for and seizures of such
vague categories of items as “‘smuggled goods,’” “‘obscene
materials,’” “‘books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written instruments
concerning the Communist Party of Texas,’” “‘illegally obtained
films,’” and “‘stolen property.’” Id. (citations omitted). In
Ninety-Two Thousand Four Hundred Twenty-Two Dollars and
Fifty-Seven Cents, 307 F.3d at 146, a case involving illegal
money laundering, we considered whether a warrant authorizing
a search for the following items constituted a “general” warrant:

1. Receipts, invoices, lists of
business associates, delivery
schedules, ledgers, financial
statements, cash receipt,
disbursement, . . . sales journals,
and correspondence.

30
 2. Computers, com puter
peripherals, related instruction
manuals and notes, and software in
order to conduct an off-site search
for electronic copies of the items
listed above.

Id. at 149. Despite the breadth of the warrant, which imposed
virtually no limitation on the types of business records subject
to seizure, and which authorized a search for “correspondence”
generally, then-Judge Alito wrote for the majority that the
warrant was not “general”: “The warrant thus ‘describ[ed] in .
. . inclusive generic terms what is to be seized.’ It did not vest
the executing officers with ‘unbridled discretion’ to search for
and seize whatever they wished. It was indubitably broad, but
it was not ‘general.’” Id. at 149 (internal citation omitted).

Here, the warrant directs officers to search for items
representing the “possible exploitation of children,” but
specifically cites on its face the statutory provision criminalizing
possession and distribution of images of children engaged in
prohibited sexual acts. Read as a whole, this warrant did not
authorize an exploratory rummaging. Therefore, it was not a
general warrant, and a reasonable officer could rely on it.

The officer’s failure to incorporate the affidavit — a task
that could be accomplished by simply adding ‘see attached
affidavit’ in the appropriate section — and use of the phrase

31
“possible exploitation of children” do not amount to “deliberate,
reckless, or grossly negligent conduct” that justifies the
application of the exclusionary rule. Nor has Tracey presented
evidence that this violation is an example of “recurring or
systemic negligence.” See Herring, 129 S. Ct. at 702. Instead,
Holler and other officers undertook a thorough investigation, as
detailed in the affidavit, and the Magistrate Judge found
probable cause and issued the warrant. See Sheppard, 468 U.S.
at 989 (holding that the good faith exception applied where
“[t]he officers . . . took every step that could reasonably be
expected of them”). The officers had good reason to believe in
the warrant’s validity. Accordingly, application of the
exclusionary rule is not justified.

* * * * *

Holler did not explicitly incorporate the affidavit of
probable cause into the search warrant, and therefore the
affidavit cannot be used to narrow the terms of the concededly
overly broad warrant. Because the Government lacked good
cause for its failure to argue before the District Court that the
warrant’s lack of particularity could be cured when the affidavit
was attached to the warrant and the actual search was limited to
the terms of the narrower affidavit, this argument was waived.
However, under these circumstances the good faith exception
applies and exclusion of the evidence is not justified.
Accordingly, the order of the District Court suppressing the
evidence seized, along with the statement made during the

32
search, is reversed, and this case is remanded for further
proceedings.

33
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-3290

UNITED STATES OF AMERICA

Appellant

v.

RALPH DOUGLAS TRACEY

APPENDIX