In a forfeiture case initiated with a search warrant, defects in the warrant process denied the government resort to the good faith exception for failure to apprise all the officers what they were looking for and not attaching exhibits to the warrant for clarification. There was summary judgment as to part, then it was tried to a jury, and then this appeal. In re 650 Fifth Ave. & Related Props., 2019 U.S. App. LEXIS 23769 (2d Cir. Aug. 9, 2019), prior appeal 830 F.3d 66 (2d Cir. 2016):
Nor does the record support the district court’s expediency finding with respect to the other agents and attorneys who reviewed and executed the warrant. If anything, the record suggests that the Government did not rush through these processes. As numerous FBI agents and AUSAs testified, and the district court found, “[t]he evidence does not support any material deviation from typical procedures.” Id. at *29. For example, the court found that “[t]ypically, and as occurred here,” Ennis reviewed the materials to “ensure accuracy” and then sent them to a supervising AUSA, who reviewed and approved the application. Id. at *10. Similarly, the agent who led the search team reviewed the warrant before executing the search and testified that it “did not appear unusual to her—or different from other search warrants she had been involved in executing.” Id. at *16. Some fault may lie with the magistrate for failing to ensure that the Ennis affidavit was attached to the warrant. (The magistrate’s involvement is not clear from the record.) But the lion’s share of the blame lies with the Government for neglecting to catch these errors or executing the warrant in spite of them.
Under all these circumstances, the Government’s reliance on this warrant was not “objectively reasonable.” See Leon, 468 U.S. at 922. To the contrary, the fact that these glaring deficiencies survived the Government’s typical process for drafting, reviewing, and executing warrants indicates “grossly negligent disregard for Fourth Amendment rights.” See Davis, 564 U.S. at 238 (quotation marks omitted). In the presence of gross negligence, “the deterrent value of exclusion is strong and tends to outweigh the resulting costs.” Id.
Applying the exclusionary rule on these facts would advance its deterrent rationale. The Government drafted an exceptionally broad and facially defective warrant, multiple trained officers and attorneys failed to address this problem, and a team without particularized knowledge of the proper scope of the search seized over two hundred boxes of evidence and several computers. Prohibiting the Government from reaping the spoils of its deficient procedures would deter it from making the same mistakes in the future.
The cost to the Government of improving its review process would be minimal. A simple checklist could have solved the failures to incorporate a supporting affidavit and identify the alleged crimes. The Fourth Amendment protection would mean little if officers acting under facially deficient warrants were free to ransack troves of private property without clear ground rules laid down by a judge.
The Government may not rely on the good-faith exception.
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2. We REVERSE in part and VACATE in part the court’s order denying the motion to suppress evidence obtained from 500 Fifth Avenue on December 19, 2008. We reverse with respect to the holding that the Government can rely on the good-faith exception to the exclusionary rule. However, we vacate with respect to the inevitable-discovery holding. On remand, the court shall require the Government to submit a chart or similar exhibit documenting how it would have obtained each particular piece of evidence that the Claimants challenge. At minimum, this must include materials that informed the drafting of the amended complaint, as well as materials the Government has already used in this proceeding or intends to use at trial. If the Government fails to make this showing with respect to some or all of the evidence, the court must apply the exclusionary rule and, mindful that the Government relied on these materials in drafting the amended complaint, consider all other appropriate remedies.