Warrant’s descriptive phrase “representing the possible exploitation of children” was overbroad

Search warrant’s descriptive phrase “representing the possible exploitation of children” was unconstitutionally overbroad. Also, the good faith exception will not save this warrant. United States v. Tracey, 2008 U.S. Dist. LEXIS 49741 (M.D. Pa. June 30, 2008):

Chief Holler did use language of incorporation but, as noted by Defendant, he incorporated the vague language of the warrant description, describing items to be seized as those “representing the possible exploitation of children,” into the affidavit, rather than incorporating into the warrant the possibly limiting language of the affidavit, which referred to the statutory section that was allegedly violated. This was not some clerical error. The point of incorporation by reference is that the warrant becomes limited by incorporation into it of the affidavit’s language. That does not happen when the vague language of the warrant is incorporated into the affidavit instead.

We therefore agree with Defendant that we deal here with a general warrant. A warrant that authorizes a search for items “representing the possible exploitation of children” is one that allows a general “rummaging” through the belongings of the defendant, Christine, supra, 687 F.2d at 752, and hence any evidence seized pursuant to that warrant must be suppressed. Id. at 758.

The government argues that the good faith exception to the exclusionary rule allows admission of the evidence seized under the authority of the warrant. In support, it contends that any error Chief Holler made was because of the way the one-page form was drafted. The Chief simply complied with the form, checking the boxes where indicated. Thus, any error in failing to incorporate the affidavit into the warrant would have been the result of the form, which the government characterizes as a clerical one that can be ignored.

We disagree. The Fourth Amendment requires a particular description of the items to be seized. In any event, the form itself instructs the drafting officer “to be as specific as possible” in describing the items, so the form cannot be the cause of the drafting error. In addition, Chief Holler was aware that he was not confined by the options supplied by the form. He actually used incorporation language, albeit opposite the way he should have.

Under the good faith exception to the exclusionary rule, “suppression of evidence ‘is inappropriate when an officer executes a search in objectively reasonable reliance on a warrant’s authority.'” Ninety-two Thousand, supra, 307 F.3d at 145 (quoting United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993)). The test is “‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.'” Id. at 145-46 (quoted case omitted). The warrant here, as it relies on a description of items involving the “exploitation of children,” fails this test. This language is so facially defective that no reasonable police officer should have relied on it. Id. at 146 (among other situations in which the good faith exception does not apply is when the warrant “was so facially deficient that it failed to particularize the place to be searched or the things to be seized”) (quoted case omitted).