CA8: SW for search of def’s person wasn’t particular, but there was a reference to the affidavit; GFE applies

The search warrant to search defendant’s person for things wasn’t particular, but the good faith exception applies. It referred to the affidavit which wasn’t present, but they remembered it. The search warrant wasn’t so deficient that it could not be relied on. United States v. Szczerba, 2018 U.S. App. LEXIS 20780 (8th Cir. July 26, 2018)*:

Considering the circumstances surrounding the issuance and execution of the search warrant in this case, we conclude that the warrant was not so obviously deficient that any reasonable officer would have known that it was constitutionally fatal. With respect to the places to be searched, the district court found that the warrant “clearly and immediately present[ed] to the reader’s eye the two locations that Sgt. Nijkamp knew were the subjects of her affidavit and were the expected locations for authorized searches.” Order and Recommendation of June 7, 2016, at 12. Although the warrant itself did not describe the items to be seized, it specifically referred to Nijkamp’s affidavit (“the supporting written affidavit”), which “clearly describes the locations to be searched (the hotel room and the vehicle) and the items to be seized (cell phones, lap top computers, large amounts of cash, condoms, lubricants, and the receipts and paperwork relating to the alleged crime).” Id. The issuing judge signed the supporting affidavit, and Nijkamp testified that she brought both the affidavit and the warrant with her to supervise the search of the hotel room and the Mercedes. That the affidavit was signed by the issuing judge and that it accompanied the warrant distinguishes this case from Groh.

Moreover, application of the exclusionary rule in this case would not result in appreciable deterrence of police misconduct. To be sure, Nijkamp acted negligently in drafting the warrant. She should have used appropriate authorizing language and ensured that the supporting affidavit was incorporated into the warrant. But in considering the totality of the circumstances, the district court found that Nijkamp was “most mindful of the Fourth Amendment warrant requirement,” in that she asked for consent to search, secured the hotel room after consent was refused, applied for a warrant, and “concealed no facts from the judge.” Order and Recommendation of June 7, 2016, at 12. Nijkamp’s conduct certainly did not reflect the type of deliberate, reckless, or grossly negligent disregard for the Fourth Amendment that the exclusionary rule can effectively deter. We thus conclude that the district court did not err in denying Szczerba’s motion to exclude evidence.