S.D.Ala.: Failure to include the incorporated affidavit in the SW as executed was fatal to this search

The motion to reconsider is denied. The search warrant was lacking the incorporated affidavit when it was executed, and that defined the place to be searched. The government cites no supporting case law that having the affidavit in hand, at least, is an alternative. United States v. Crabtree, 2015 U.S. Dist. LEXIS 17866 (S.D.Ala. February 13, 2015):

The warrant in this case, however, does not incorporate the affidavit. The warrant states only that, “[a]ffidavit having been made before me …, which establishes probable cause to make the search herein designated,” with the house in Mount Vernon then identified as the place to be searched. (Doc. 13 at 7). Such general language does not incorporate by reference the affidavit’s description of the premises to be searched. This is clear from Groh itself, where the warrant “recite[d] that the Magistrate was satisfied the affidavit established probable cause to believe that contraband was concealed on the premises, and that sufficient grounds existed for the warrant’s issuance,” yet the Court ruled that “the warrant did not incorporate other documents by reference.” 540 U.S. at 555, 558. As set forth in United States v. Curry, 911 F.2d 72 (8th Cir. 1990) — a case to which the Groh Court cited, 540 U.S. at 558 — “suitable words of reference incorporating [an] affidavit” are phrases such as “see attached affidavit” or “as described in the affidavit.” 911 F.2d at 77 (internal quotes omitted); accord United States v. Tracey, 597 F.3d 140, 147-48 (3rd Cir. 2010) (incorporation must be “clear,” using phrases such as “see Exhibit A sealed by Order of the Court” or “specified in the annexed affidavit”) (internal quotes omitted). Nothing of the sort is present here.

Nor was the affidavit attached to the warrant. Even by the government’s unsubstantiated assertion, the affidavit was merely in the possession of the executing officer. (Doc. 32 at 1).

Unable to demonstrate that the affidavit was part of the warrant under the test outlined above, the government asserts that an affidavit still can be used to cure a warrant’s lack of particularity as long as the affidavit “was referenced in the warrant and brought to the search along with the search warrant.” (Doc. 32 at 4). The cases on which the government relies for this proposition do not support it. The cited cases from outside this Circuit state at most that either incorporation by reference or attachment to the warrant suffices to permit review of an affidavit to clarify an ambiguous affidavit; none supports the proposition that neither incorporation nor attachment to the warrant is necessary. Cases from inside the Circuit likewise reflect that one or both are required. Nor do any known Supreme Court cases support the government’s position. Groh itself stated that, unless an affidavit was “at least incorporated by reference, and the affidavit present at the search,” there could be no assurance that probable cause was found for seizing every item listed in the affidavit. 540 U.S. at 560 (emphasis added).