United States v. Rosa, No. 09-0636 (2d Cir. 2010)
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The court issued a subsequent related opinion or order on March 8, 2011.
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09-0636-cr United States v. Rosa 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2009 (Argued: March 2, 2010 Decided: October 27, 2010) Docket No. 09-0636-cr -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -EFRAIN J. ROSA, Defendant-Appellant. -----------------------------------------------------x B e f o r e : 22 WALKER and LIVINGSTON, Circuit Judges, and KAPLAN, District Judge.* 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. 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 2 3 * Rosa challenges the The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. 1 1 exception to the exclusionary rule does not apply. 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 While we JAMES P. EGAN, Office of the Federal Public Defender (Alexander Bunin, Federal Public Defender, and Lisa A. Peebles, First Assistant Federal Public Defender, on the brief), Syracuse, N.Y., for Defendant-Appellant. BRENDA K. SANNES, Assistant United States Attorney (Andrew T. Baxter, Acting United States Attorney for the Northern District of New York, and Lisa M. Fletcher, Assistant United States Attorney, of Counsel, on the brief), Syracuse, N.Y., for Appellee. JOHN M. WALKER, JR., Circuit Judge: 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. 32 physical evidence seized from his home on the basis that it was 33 taken pursuant to an overbroad search warrant that failed to Prior to his guilty plea, Rosa moved to suppress 2 1 state how electronic items to be seized were connected to any 2 suspected criminal activity or, more specifically, child 3 pornography. 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 While we agree with Rosa that the Supreme Court s 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. 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 In the course of the investigation, at approximately 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 21 22 23 24 25 26 27 28 [t]he entire residence Building E Apartment 1 Town of Granby, County This is to include any locked or otherwise[ ] known as 30 West 11th Street Chateau West Apartments in the of Oswego, State of New York. containers or rooms whether for the following property: The property sought to be seized and searched is described as computer equipment, electronic digital 4 1 2 3 4 5 6 7 8 9 10 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. 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. 26 search warrant application before Judge Wells, and the 27 application bore each man s signature. 1 2 3 4 storage media included but not limited to floppy diskettes, compact disc, hard drives whether mounted in a computer or otherwise, video or audio tapes, video surveillance systems, video and digital camera systems, printing devices, monitors, firearms and any written and/or printed and/or electronic stored notes or records which would tend to identify criminal conduct and any personal papers or documents which tend to identify the owner, leasee or whomever has custody or control over the premises searched or the items seized. Finally, the search warrant application requested that Investigator Blake swore to the information in the 1 Specifically, the application listed the suspected violation of Articles 130 ( Sex offenses ), 263 ( Sexual performance by a child ), and 265 ( Firearms and other dangerous weapons ) of New 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 11 12 13 14 15 16 17 18 19 20 21 22 All of the materials requested for seizure will identify children who are being sexually exploited through child molestation and child pornography. The materials will also identify other adults who are engaging in the sexual exploitation of children by these means. In addition, these materials will demonstrate the sexual proclivity, inclination, preference, and activities of the person under investigation providing evidence that will tend to show that the person under investigation has committed felonies. 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. 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. 6 During the Investigator 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. 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. 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 Investigator Blake also uncovered three File 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. 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. 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 In February 2008, Rosa On March 13, 1 2 and thirteen counts of possessing child pornography. 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. 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 Specifically, 10 inventory from the search lacked sufficient detail. 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. 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 In a Thus, 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. 24 search warrant lacked particularity, the district court declined 8 As to Rosa s claim that the 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. 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 Rather, 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). 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. 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 After considering the entirety of the documents presented The district court further concluded that even 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. 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 On February 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. 19 clear error, viewing the evidence in the light most favorable to 20 the government, and its legal conclusions de novo. 21 States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 2008) (per curiam), 22 cert. denied, 130 S. Ct. 3434 (2010). 23 I. 24 We review the district court s factual findings for See United The Fourth Amendment s Particularity Requirement The Fourth Amendment to the U.S. Constitution provides: 10 1 2 3 4 5 6 7 8 9 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. 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. 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). 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. Groh, 540 U.S. at 557 We note that, while 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. 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. 9 correspondence in search of evidence of an internet-based For example, officers Or officers might read through e-mail 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. 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 See United States v. 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. 8 588, 590 (2d Cir. 1987) ( [T]he particularity requirement makes 9 general searches . . . impossible and prevents the seizure of one See United States v. Buck, 813 F.2d 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. 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. ). 23 describe with particularity the evidence sought and, more 24 specifically, to link that evidence to the criminal activity See United States v. George, 975 We therefore conclude that the warrant failed to 13 1 supported by probable cause. 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 As a result, the warrant violated 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 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: 1 2 3 4 5 6 7 8 9 10 11 2 In Bianco, We reject the Government s contention that all of the electronic equipment seized from Rosa s apartment could be searched without a warrant because it was subject to later forfeiture. The Government s position that the entire contents of Rosa s computers and related storage media could be searched under the terms of this warrant leads to the evisceration of the Fourth Amendment s requirement of an ex ante probable cause determination. See United States v. Grubbs, 547 U.S. 90, 99 (2006) (explaining that the Fourth Amendment protects property owners by interposing, ex ante, the impartial judgment of a 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. 4 held, however, that this lack of particularity [did] not render 5 the warrant incurably defective. 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 Id. at 1115. Id. at 1116. We further Rather, we 10 the search, both of which were spelled out clearly in the 11 affidavit supporting the search warrant application. 12 1116-17. 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 Id. at But see George, 975 F.2d at 76 (in a case decided only 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. 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 In Groh, 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. 6 investigating ATF agent prepared a detailed affidavit setting 7 forth the factual basis for the search and a warrant form. 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. 13 agent, executed the search warrant the next day. 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. 17 540 U.S. at 554. Along with the application, the Id. A team of federal and state officers, led by the ATF As the search Id. at 555. 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. 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. 24 documents could save the warrant, the Court stated that [t]he Id. at 557. Id. at 555. Before the Supreme In addressing whether the supporting 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. 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. 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. 20 560-61. 21 Id. (emphasis in original). Having concluded Id. at 558. In rejecting the Id. at 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. 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)). 8 may no longer rely on unincorporated, unattached supporting 9 documents to cure an otherwise defective search warrant, the Cf. Groh, 540 U.S. at 561; see United States 10 warrant fails for lack of particularity. 11 II. Because we 12 Application of the Exclusionary Rule 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. 16 (internal quotation marks omitted). 17 Herring v. United States, 129 S. Ct. 695, 700 (2009) 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. 21 States v. Julius, 610 F.3d 60, 66-67 (2d Cir. 2010) (discussing 22 Herring). 23 is justified by these deterrence principles varies with the 24 culpability of the law enforcement conduct. Id.; see also United Moreover, [t]he extent to which the exclusionary rule 18 Herring, 129 S. Ct. 1 at 702. 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. 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. 13 (quoting Leon, 468 U.S. at 922 n.23). 14 Thus, in deciding to suppress evidence, we look to Id.; see also United States v. Leon, 468 U.S. 897, 911 Herring, 129 S. Ct. at 703 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. 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. 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 While we may no longer rely See id. at 699 ( [W]e 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. 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. 9 requested the issuance of a warrant to seize evidence depicting The search warrant Indeed, the application and affidavit specifically 10 Rosa s sexual exploitation of children.3 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. 15 charge of executing the search warrant and later searching the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 3 In addition, Moreover, as both the affiant and the officer in In this respect, we find George, 975 F.2d at 74-78, distinguishable. We find no basis for concluding that Investigator Blake believed the warrant did not have to be limited to obtaining evidence of a particular crime; rather, both the search warrant application and supporting affidavit requested authorization to search for evidence of child pornography and child molestation and, moreover, specifically requested that the search warrant be limited to obtaining evidence of these crimes. Investigator Blake s misstep, made in the course of a timesensitive and ongoing investigation, was in failing to notice that this limiting language (or any specific language of incorporation) was absent from the search warrant itself. We conclude that suppressing physical evidence on the basis of such an instance of isolated negligence would be incompatible with the principles underlying the exclusionary rule. See Herring, 129 S. Ct. at 700-02. 20 1 digital media seized, Investigator Blake was intimately familiar 2 with the contemplated limits of the search. 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 9 Finally, there is no Upon examining the circumstances of the case, we conclude 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. 16 Ct. at 698. 17 culpability on the officers part. 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). 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 Herring, 129 S. There is nothing to suggest deliberateness and See United States v. [E]ven assuming that the rule effectively 21 1 be applied, to deter objectively reasonable law enforcement 2 activity. 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 Leon, 468 U.S. at 918-19; see Herring, 129 S. Ct. at 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. 15 Court s denial of qualified immunity to the ATF agent in Groh as 16 further support for applying the exclusionary rule. 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. 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 He likewise relies on the Supreme 22 Not every Moreover, the 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. 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 Because there is no 10 requisite levels of deliberateness and culpability justifying 11 suppression are lacking. 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. . . . 19 question is whether [his] failure to notice the defect was 20 objectively unreasonable. ). 21 Cf. Groh, 540 U.S. at 569 (Kennedy, J., The only remaining 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. 5 conclude that the benefits of deterrence do not outweigh the 6 costs. 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 Liu, 239 F.3d at 141. Under the facts of this case, we In so holding, however, we reiterate the importance of with the facts of each case. 11 12 CONCLUSION 13 For the forgoing reasons, we AFFIRM the district court s 14 15 denial of Rosa s motion to suppress. 24
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