S.D.N.Y.: Missing attachment can’t be considered on PC, but it can on GFE

While a missing attachment can’t be considered as to the “four corners” analysis of the validity of the probable cause for issuance of the search warrant, it’s still quite relative to applying the good faith exception. United States v. Alston, 2016 U.S. Dist. LEXIS 63776 (S.D.N.Y. April 29, 2016):

Moreover, although courts “may no longer rely on unincorporated, unattached supporting documents to cure a constitutionally defective warrant, those documents are still relevant to [the] determination of whether the officers acted in good faith, because they contribute to [the] assessment of the officers’ conduct in a particular case.” United States v. Rosa, 626 F.3d 56, 64 (2d Cir. 2010). Here, the Anderson Affidavit clearly stated the fact that the target offense was conspiracy to distribute narcotics and cross-referenced the list of items to be taken from the phone in Attachment A. (See Docket #36, Ex. B ¶ 11). Thus, for purposes of a good faith inquiry, the Anderson Affidavit cures any potential deficiency in the warrant, because the individuals who conducted the review of the data on the iPhone were familiar with the contents of the affidavit and thus knew to limit their search to evidence of the target offense. See Rosa, 626 F.3d at 64-65.

In United States v. Romain, the defendant made a similar suppression motion, contending that the warrant’s failure to list a specific criminal offense rendered it insufficiently particularized. Although the warrant in that case failed to list any target offense in the warrant (unlike the warrant in this case, which does list the target offense, just not in every paragraph), Judge Sweet denied the defendant’s suppression motion on the grounds that the good faith exception applied to the government’s conduct. United States v. Romain, 2014 WL 6765831, at *6 (S.D.N.Y. Dec. 1, 2014). Judge Sweet explained that the search warrant application and its supporting documents “made clear that the purpose of the warrant was to find evidence of specific criminal offenses” and therefore the “omission of an incorporation of the Application and supporting documents does not, in the absence of any other indicia of deficiency or bad conduct, indicate ‘flagrant’ or ‘culpable’ conduct on the part of the Government to require deterrence.” Id. at *7.