CA7: Failure of particularity in warrant but not affidavit does not lead to suppression

Affidavit for search warrant particularly described what was to be seized but the warrant did not. This was insufficient for suppression of evidence. United States v. Sims, 553 F.3d 580 (7th Cir. 2009):

So just as in United States v. Stefonek, 179 F.3d 1030 (7th Cir. 1999), a case that differs in no material respect from this one, the search was reasonable. But we could not there, and we cannot here, draw the straightforward conclusion that there was no violation of the Fourth Amendment. The Supreme Court, on grounds of policy rather than of text or history–in fact, as we have just noted, in the teeth of the text and possibly of the history of the amendment (depending on whether Taylor or Amar, on the one hand, or Davies on the other, has the better historical case)–has ruled that, though with numerous but immaterial exceptions, a search without a warrant is unconstitutional. (For both the rule and the exceptions, see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2008).) The policy is that of reducing the number of unreasonable searches by requiring that a presumably neutral judicial officer screen police searches. E.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948) (Jackson, J.). “[A]nd although the effective neutrality and independence of magistrates in ex parte proceedings for the issuance of search warrants may be doubted, there is a practical reason for requiring warrants where feasible: it forces the police to make a record before the search, rather than allowing them to conduct the search without prior investigation in the expectation that if the search is fruitful a rationalization for it will not be difficult to construct, working backwards.” United States v. Mazzone, supra, 782 F.2d at 759.

Even so, it would not follow that in cases such as this, in which the judicial screening had failed to prevent the search (although it certainly succeeded in creating a written record), the fruits of the search should be suppressed at the defendant’s trial. A person whose rights have been violated by a search can be remitted to a suit against the police for committing a constitutional tort. Now that such suits are common and effective, United States v. Langford, 314 F.3d 892, 895 (7th Cir. 2002), the exclusionary rule is bound some day to give way to them. For the rule is too strict: illegally seized evidence essential to convicting the defendant of a grave crime might have to be suppressed, and the criminal let go to continue his career of criminality, even if the harm inflicted by the illegal search to the interests intended to be protected by the Fourth Amendment was slight in comparison to the harm to society of letting the defendant off scot free.

. . .

Groh was a tort case, moreover, not a criminal case. There was no question of excluding illegally seized evidence, hence no concern that the sanction for violating the Fourth Amendment would be disproportionate to the harm caused by the violation. If the plaintiffs in Groh could not prove harm, they would get no damages, rather than escaping punishment for a crime–they were never charged with having committed a crime. We do not think that the fact that our defendant might have obtained some slight psychological benefit from being able to monitor the police search had the police shown him a warrant that described the things they were looking for takes this case out of reach of the “inevitable discovery” doctrine (we might call it the no harm, no foul, doctrine). As we explained in United States v. Cazares-Olivas, supra, 515 F.3d at 728-29, “permitting people to get away with crime is too high a price to pay for errors that … do not play any causal role in the seizure (the inevitable-discovery situation) …. Groh was a suit for damages; we doubt that the Court would have invoked the exclusionary rule when a description of the things to be seized, though missing from the warrant, appeared in an affidavit that was filed with the court in support of the application and was respected when the search occurred. The inevitable-discovery doctrine, if nothing else, would have foreclosed use of the exclusionary rule in Groh.”

Also, the inevitable discovery rule is the “no harm, no foul” exception.