[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 8, 2006
No. 04-15168
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00008-CR-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWIGHT A. PRATT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 8, 2006)
Before BIRCH, WILSON and COX, Circuit Judges.
WILSON, Circuit Judge:
Dwight A. Pratt appeals the denial of his motion to suppress evidence used
to secure his convictions. His appeal presents us with the following question:
When a search warrant is lost after its execution and is missing at a suppression
hearing, does the Fourth Amendment prohibit the use of other evidence to prove
the warrant’s existence and descriptive language? We hold that the Fourth
Amendment does not prohibit the use of other evidence to establish the existence
and the contents of a lost search warrant. Therefore, we affirm the district court’s
denial of Pratt’s motion to suppress. We also affirm Pratt’s sentence, finding that
the district court committed harmless Booker 1 statutory error.
I. Background
A. The Search
In early November 2002, Detective Morgan Wysocki of the Leon County,
Florida Sheriff’s Department used a confidential informant for a controlled buy of
1 gram of powder cocaine from Pratt. Wysocki later used the confidential
informant for a controlled buy of 0.1 grams of crack cocaine from Pratt. The
informant told Wysocki about several handguns she observed inside the residence
during the first controlled buy. During the second controlled buy, Pratt told the
informant that he could obtain a handgun to sell to the informant. Wysocki
subsequently prepared an affidavit in support of an application for a search
warrant. He then prepared a search warrant template containing descriptive
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
2
language of the place, person, and items to be searched and seized. The template’s
language was electronically copied from the affidavit.2
On December 19, 2002, Wysocki took the affidavit and two copies of the
search warrant template to the chambers of Leon County Judge Donald Modesitt,
who signed the affidavit and issued a search warrant. That same day, Wysocki and
other members of the Leon County Sheriff’s Department executed the search
warrant at Pratt’s residence. Wysocki read the warrant to Pratt. Wysocki seized a
loaded semi-automatic pistol, 19 grams of powder cocaine, 60 grams of marijuana,
Pratt’s wallet containing his identification, and miscellaneous drug paraphernalia.
He also completed an inventory of the items seized. Pratt was arrested and copies
of the warrant and the inventory were left on the kitchen counter.
Wysocki returned to the office and purportedly made copies of the search
2
The affidavit’s descriptive language states:
[C]ertain evidence, more particularly described herein below, is being kept in or
upon a certain premise located . . . [on] 2026 Autumn Ln, Tallahassee Fl. 32310.
The residence is a single wide trailer located approximately .2 miles west of the
intersection of Springhill Rd. and Autumn Lane. The front door of the residence
faces south. The residence is grey in color with burgundy trim. A white mail box
is located at the end of the driveway with the numbers 2026 hand written on the
sides. [The original affidavit contains three photographs of the residence.] This is
the residence to be searched. Being the premises occupied by or under the control
of a blacke [sic] male, known as Dwight Pratt, and there is being kept on or in
said premises certain person and evidence of a crime, to wit: Crack Cocaine,
Cocaine, records pertaining to the sale, manufacture, possession or delivery of a
controlled substance, U.S. Currency, paraphernalia used in the sale, use,
manufacture, possession, or delivery of a controlled substance, firearms and any
items of identification which tends to establish custody or control over said
evidence and occupancy of the residence being searched.
3
warrant, the inventory, and the affidavit. At the time of the suppression hearing,
his files contained copies of the inventory and the affidavit but did not contain a
copy of the search warrant. Likewise, the clerk’s records contained all but a copy
of the search warrant.
Based on the controlled buys and the items seized during the December 19
search, Pratt was indicted for distributing a controlled substance, namely, cocaine
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2 (Count
1) ; distributing crack cocaine in violation of the same statutes (Count 2);
possessing with the intent to distribute cocaine in violation of the same statutes
(Count 3); possessing a firearm in furtherance of the possession in Count 3 in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4); and possessing a firearm and
ammunition as a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 5).
B. Hearing on the motion to suppress
Initially, Pratt filed a motion to suppress, assuming based on the search
warrant’s absence from the record, that no judge had issued a warrant and that the
police only used the affidavit as authorization for the search.3 The Government
countered that a warrant was indeed issued, but was lost after the search. Pratt
supplemented his motion by arguing that the Fourth Amendment requires the
3
Pratt also argued that the portion of the affidavit that could possibly be construed as a
warrant failed to describe the place, person, and items to be searched and seized.
4
warrant itself to be produced at trial. Pratt did not allege that the officers or the
Government lost the warrant in bad faith.
At the hearing on the motion to suppress, the Government called four
witnesses. The first was Judge Modesitt who testified that he did not remember
issuing the specific warrant at issue, but that he follows “the same process on every
occasion.” He testified that every time he is asked to issue a search warrant, he
compares the affidavit with the search warrant to make sure the descriptions of the
place to be searched and the items to be seized contained in both the affidavit and
search warrant match word-for-word, signs the affidavit, and issues the search
warrant.4 The Government introduced into evidence Wysocki’s affidavit signed
4
Judge Modesitt repeated the mantra that he always followed the same procedure.
Q: Could you explain the normal process when a law enforcement
officer comes to you seeking a search a warrant?
A: All right. I follow the same process on every occasion . . . . The
officer comes in, identifies that he's a law enforcement officer . . .
I then place them under oath. They present me with a duplicate
copy of an affidavit and the search warrant itself. I review the
affidavit first. Once I've reviewed it, they are under oath. I require
them to sign it in my presence . . . . I then date it and sign it myself
as far as the affidavit is concerned. Then I review the search
warrant, which is always submitted to me as a proposed search
warrant. It's already prepared. I then compare that search warrant
with the affidavit to confirm that it’s a duplicate. With the modern
processing equipment that we have, the way they do it, they print
the affidavit, and then they duplicate it in the search warrant
verbatim. I look that over, confirm that it is the same thing, with
the exception, of course, is [sic] the final ordering information, is
[sic] about the only difference in the affidavit from the search
warrant itself. I then sign and date the search warrant in duplicate
and present it back to the officer.
...
5
and witnessed by Judge Modesitt. Judge Modesitt testified that he was absolutely
sure that he had issued a search warrant with descriptive language identical to the
affidavit’s.
The Government’s second witness was Wysocki who testified that he
specifically recalled obtaining the search warrant from Judge Modesitt. He further
testified that he read the warrant to Pratt before conducting the search and that he
left a copy of the warrant on the kitchen counter before arresting Pratt. The
Government’s third witness was Wysocki’s supervisor, Edward Cook, who had
been present at the search. Cook testified that he heard Wysocki read the search
warrant to Pratt and that he saw Wysocki place a copy of the search warrant on the
Q: Can you recall ever signing any search warrants where [you did
not specifically compare the description of the location, the
premises to be searched, as well as the items to be seized]?
A: No. I follow the same procedure on every occasion. I confirm that
the place to be searched is identical in both the affidavit and the
search warrant itself. I confirm that the subject matter that they are
looking for is identical. I confirm that the probable cause is
identical, because they always repeat the probable cause in the
search warrant that is in the affidavit . . . . So the search warrant
and the affidavit are identical except for the authorizing language.
...
Q: Judge Modesitt, based on your signature on the last page of the
affidavit for the search warrant, did you issue a search warrant for
a search of the premises of 2026 Autumn Lane in Tallahassee,
which is the address on the affidavit?
A: The reason I feel absolutely positive that I did, I follow exactly the
same procedure every time . . . . I have never signed an affidavit
for a search warrant but that I also issued contemporaneously,
immediately, the warrant to search those premises for that property
for the same reasons that are in the affidavit. So, I've done it every
single time that I've ever done one without any doubt in my mind.
6
kitchen counter. On cross-examination, Cook conceded that he did not know for
sure that Wysocki read the search warrant rather than the affidavit. The
Government's fourth witness was Special Agent Donald Williams of Alcohol,
Tobacco, and Firearms, who testified that he went to the clerk's office to get a copy
of the first page of the search warrant only to find that it was missing. Williams
was not present at the search. Pratt did not testify nor did he call any witnesses.
Based on this testimony, the affidavit, the inventory, and the parties’
arguments, the district court denied Pratt’s motion to suppress, finding that a
search warrant with descriptive language mirroring the affidavit’s existed and that
the warrant met the Fourth Amendment’s particularity requirement.
C. Sentencing
Pratt pled guilty to Counts 1, 2, and 5 of the indictment, reserving his right
to appeal the district court’s denial of his motion to suppress. He went to trial on
the other counts, and was found guilty of a lesser included offense of simple
possession with respect to Count 3, in violation of 21 U.S.C. § 844. He was
acquitted on Count 4.
At the plea colloquy, Pratt fully preserved his Booker (then Blakely5) claim
by filing a written challenge to the mandatory use of the United States Sentencing
5
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
7
Guidelines (the “Guidelines”) and by renewing his objection at the sentencing
hearing. During the sentencing hearing, which occurred while the Supreme Court
was considering Booker, the district court judge presciently stated that he would
impose the same sentence if the Guidelines were advisory. Pratt was then
sentenced to a prison term of 188 months–188 months on Counts 1 and 2, 36
months on Count 3 and 120 months on Count 5, all running concurrently.
II. Standard of Review
In reviewing a district court’s denial of a motion to suppress evidence, we
review findings of fact for clear error and the application of the law to those facts
de novo. United States v. Jiminez, 224 F.3d 1243, 1247 (11th Cir. 2000).
We review Pratt’s properly preserved claim of Booker error de novo and will
not reverse unless the error was harmful. See United States v. Mathenia, 409 F.3d
1289, 1291-92 (11th Cir. 2005) (per curiam).
III. Discussion
We first discuss whether the Fourth Amendment prohibits the Government’s
use of other evidence to prove a missing search warrant’s existence and descriptive
language at a suppression hearing, and whether, as Pratt asserts, Groh v. Ramirez,
540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004), supports this view.
Next, we review the district court’s factual findings that a search warrant existed
8
and that the warrant’s descriptive language mirrored the supporting affidavit’s
descriptive language; and we review the district court’s legal conclusion that the
search met the Fourth Amendment’s requirements. Finally, we discuss Pratt’s
Booker error claim.
A. Motion to Suppress
1. The Fourth Amendment and Groh
Pratt points to the Fourth Amendment as providing an exception to the
general axiom that all relevant evidence is admissible.6 He argues that the Fourth
Amendment requires the exclusion of all evidence, except the search warrant itself,
relevant to the determination of a search warrant’s existence and descriptive
language. The essence of his argument is that a missing warrant creates an
irrebuttable presumption that no warrant ever existed or, alternatively, that the
missing warrant’s descriptive language lacked particularity.
Pratt cites Groh for the proposition that a search warrant’s descriptive
language is so critical to a Fourth Amendment inquiry that it can only be proven by
6
“The provisions that all relevant evidence is admissible, with certain exceptions, and
that evidence which is not relevant is not admissible are a presupposition involved in the very
conception of a rational system of evidence. They constitute the foundation upon which the
structure of admission and exclusion rests.” Fed. R. Evid. 402 advisory committee’s note
(citations and quotations omitted).
9
introducing the warrant itself. In Groh, Joseph Ramirez brought a Bivens 7 action
against Jeff Groh, a Special Agent for the Bureau of Alcohol, Tobacco, and
Firearms (ATF) for violating Ramirez’s Fourth Amendment rights when Groh
conducted a search of Ramirez’s home pursuant to a search warrant describing the
person and items to be seized as Ramirez’s “two-story blue house rather than the
alleged stockpile of firearms.” Id. at 554, 124 S. Ct. at 1287-88. The magistrate
issued the warrant based upon a detailed affidavit that showed probable cause. Id.
Unlike the search warrant, the affidavit described adequately and particularly the
stockpile of firearms that were to be seized. Id. at 554, 124 S. Ct. at 1288. In
holding that the warrant was “plainly invalid,” the Groh Court stated that the
supporting affidavit’s descriptive language “does not save the warrant from its
facial invalidity. The Fourth Amendment by its terms requires particularity in the
warrant, not in the supporting documents.” Id. at 557, 124 S. Ct. at 1289
(emphasis removed). Given this determination, we agree with Pratt’s premise that
the contents of the search warrant itself, not the contents of the supporting
documents,8 are scrutinized under the Fourth Amendment’s particularity
7
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.
Ct. 1999, 29 L. Ed. 2d 619 (1971).
8
Search warrants can incorporate by reference the words of supporting documents if the
documents are attached to the warrant. See Groh, 540 U.S. at 560, 124 S. Ct. at 1291. The
warrant in Groh did not incorporate the affidavit, however. Id. at 554-55, 124 S. Ct. at 1288.
10
requirement. We also agree with Pratt that a supporting affidavit, no matter how
perfect, cannot save a facially defective warrant. Where we part ways with Pratt is
whether these premises lead to the conclusion that a supporting affidavit, or any
other relevant evidence, cannot be used to prove a missing search warrant’s
existence or contents.
Groh is distinguishable from this case. In Groh, the search warrant was
produced at trial and its descriptive language was known to a certainty. Id. at 558,
124 S. Ct. at 1290. The language of the warrant failed to meet the particularity
requirement of the Fourth Amendment. In the present case, the parties dispute the
warrant’s existence and its descriptive language. Yet, there is other evidence to
establish the contents of the warrant, supporting particularity. The Government
does not need to prove the warrant’s existence with certainty, but rather by a
preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177
n.14, 94 S. Ct. 988, 996 n.14, 39 L. Ed. 2d 242 (1974).
We decline to accept Pratt’s suggestion that the absence of a search warrant
at a suppression hearing creates a presumption that there is a Fourth Amendment
violation. We find that, when a warrant is not in evidence at a suppression hearing,
a prosecutor must prove, by a preponderance of the evidence, the missing search
warrant’s exact language describing the place to be searched and the persons or
11
items to be seized. Cf. United States v. Lambert, 887 F.2d 1568, 1571-72 (11th
Cir. 1989) (“Of course, the absence from the court records of an affidavit
constitutes some evidence that one did not exist . . . . However, other evidence may
be presented to establish the fact that an affidavit was presented, as well as its
contents.”). General assertions that a warrant was particular or vague recollections
of a warrant’s descriptive language cannot satisfy this burden.
The Government in some cases may not be able to prove a search warrant’s
existence or its exact descriptive language. In those cases, the search is treated as
if it were warrantless and the evidence may be suppressed.9 But in cases like the
present one, where ample evidence is produced, to prohibit the Government from
presenting that evidence would be untenable. We hold that other evidence of a
search warrant’s existence and descriptive language may be used in a suppression
hearing to prove that a search was conducted with a warrant that particularly
described the place to be searched and the persons or items to be seized.10 We can
now turn to an evaluation of that other evidence to determine whether it is
sufficient to support the district court’s conclusions.
9
The Government may still prove that the warrantless search would fall within one of
the “carefully defined classes of cases” that do not violate the Fourth Amendment. See Groh,
540 U.S. at 560, 124 S. Ct. at 1291.
10
Pratt did not allege any bad faith on the part of the officers effectuating the search nor
on the part of the Government. Therefore, we limit our holding to situations not involving bad
faith.
12
2. Review of the district court’s findings
We will accept the district court’s factual determinations unless they are
clearly erroneous. The district court made two factual findings that Pratt
challenges: (1) a search warrant existed and (2) the search warrant’s description of
the items to be searched and seized were exactly the same as the supporting
affidavit.
The Government presented ample evidence of the warrant’s existence and
exact contents with testimony from the officer who drafted the warrant, the
magistrate who issued the warrant, and the affidavit that supported the warrant.
The issuing judge repeatedly and unwaveringly testified that he always makes sure
the warrant matches the affidavit in its description of the place to be searched and
the items to be seized. He further testified that he was sure that he issued a warrant
in Pratt’s case based on his signature and his consistent practice. This testimony
was neither challenged nor contradicted by any evidence submitted by Pratt. The
district court’s factual findings are, therefore, not clearly erroneous.
Finally, we turn to whether the district court erred in finding that the missing
search warrant satisfied the Fourth Amendment’s particularity requirement. We
need not re-analyze the warrant’s descriptive language since Pratt concedes that the
warrant’s descriptive language would be particular if it mirrored the affidavit’s
13
descriptive language.11 That said, we agree with the district court and find that the
warrant’s descriptive language particularly describes the place to be searched and
the person or things to be seized. Accordingly, we affirm the district court’s denial
of Pratt’s motion to suppress.
B. Sentencing
Statutory Booker error occurs when the district court sentences a defendant
under a mandatory guidelines scheme. Mathenia, 409 F.3d at 1291. Pratt asserts
that the district court committed Booker statutory error because of its mandatory
use of the Guidelines to sentence him. The Government concedes this error, but
argues that the error was harmless nonetheless.
In statutory error cases, the error is harmless “if, viewing the proceedings in
their entirety, a court determines that the error did not affect the sentence, or had
but very slight effect.” Id. at 1292 (internal marks and quotations omitted). That is,
“[i]f one can say with fair assurance that the sentence was not substantially swayed
by the error, the sentence is due to be affirmed even though there was error.” Id.
(internal marks and quotations omitted). Where the district court states that the
sentence would be the same under advisory guidelines, any Booker error is
harmless. Id.
11
The affidavit’s descriptive language appears in n.1 of this opinion.
14
Here, the district judge explicitly stated, “Finally, I should note that, if the
Supreme Court holds in Booker that the Guidelines cannot constitutionally be
made binding, then it is my view that they nonetheless can and should be
considered by a district court judge in deciding where to place a sentence within
the entire statutory range. I would do that here, and under the circumstances would
impose this same sentence.”12
Pratt argues, notwithstanding the judge’s statements, that the judge did not
take into account all of the factors that he could have because the Guidelines were
mandatory. This argument is unpersuasive. Because the judge would impose the
same sentence under an advisory guidelines system, we can say “with fair
assurance . . . that the [sentence] was not substantially swayed by the error.” Id. at
1292. Accordingly, the Booker statutory error was harmless, and we affirm Pratt’s
sentence.
12
Before making this statement, the district court also stated,
Let me tell you the sentence I’m going to impose and why, and then I’ll
formally impose the sentence. The sentence I’m going to impose is 188
months. That’s the low end of the range. The government is correct that
Mr. Pratt has a very bad record of prior drug convictions. That
appropriately is taken into account in sentencing, and appropriately calls
for a substantial sentence. The guidelines take into account that bad
record. The bad record is what makes him a career offender. The
guidelines range for this offense, without the career offender provision,
would be I believe 110 to 137 months. The low end of the range with a
career offender provision is 188 months. The criminal record does call for
a substantial sentence. A hundred and eighty-eight months is a substantial
sentence.
15
IV. Conclusion
We AFFIRM the district court’s denial of Pratt’s motion to suppress and we
AFFIRM Pratt’s 188-month sentence.
AFFIRMED.
16