CA2: While child porn SW violated Groh, exclusionary rule not applied under Herring and Leon

Defendant was accused of child pornography by his own victims, and the police raced to get a search warrant for his computer which had pictures of the kids that he showed them. While the failure to attach appropriate documents violated Groh, the court refuses to suppress the search under the exclusionary rule and the good faith exception. United States v. Rosa, 626 F.3d 56 (2d Cir. 2010):

Upon examining the circumstances of the case, we conclude that the officers acted reasonably and that the exclusionary rule would serve little deterrent purpose in this case. Given the time pressures and the content of the application and the affidavit, it is only reasonable to conclude that the failure to ensure that the items to be seized were properly limited under the express terms of the warrant was simply an inadvertent error that was the product of “isolated negligence.” Herring, 129 S.Ct. at 698. There is nothing to suggest deliberateness and culpability on the officers’ part. See United States v. Riccardi, 405 F.3d 852, 863-64 (10th Cir. 2005) (applying the good faith exception to an officer’s search of a seized computer for evidence of child pornography despite the warrant’s lack of particularity). “[E]ven assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Leon, 468 U.S. at 918-19; see Herring, 129 S.Ct. at 704 (“In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence … rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’” (internal citations omitted)).

Rosa invokes Leon’s language that good faith may not be found where a “warrant [is] so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized,” to argue that a reasonable officer could not rely on this search warrant in good faith and that the exclusionary rule should therefore apply. He likewise relies on the Supreme Court’s denial of qualified immunity to the ATF agent in Groh as further support for applying the exclusionary rule. Not every facially deficient warrant, however, will be so defective that an officer will lack a reasonable basis for relying upon it, see Otero, 563 F.3d at 1134; Riccardi, 405 F.3d at 864, and the defective warrant in this case certainly did not have the glaring deficiencies of the itemless warrant in Groh. Moreover, the Court has made clear since Leon that while the objective inquiries underlying the good faith exception and qualified immunity are the same, see Groh, 540 U.S. at 565 n.8, application of the exclusionary rule requires the additional determination that the officers’ conduct was “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” Herring, 129 S.Ct. at 702. Because there is no evidence that Investigator Blake and his team of officers actually relied on the defective warrant, as opposed to their knowledge of the investigation and the contemplated limits of the town justice’s authorization, in executing the search, the requisite levels of deliberateness and culpability justifying suppression are lacking. Cf. Groh, 540 U.S. at 569 (Kennedy, J., dissenting) (“The issue in this case is whether an officer can reasonably fail to recognize a clerical error, not whether an officer who recognizes a clerical error can reasonably conclude that a defective warrant is legally valid.”); id. at 579 (Thomas, J., dissenting) (“[T]he Court does not even argue that the fact that [the agent] made a mistake in preparing the warrant was objectively unreasonable, nor could it. … The only remaining question is whether [his] failure to notice the defect was objectively unreasonable.”).

The circumstances surrounding the investigation and application for a warrant, conducted with necessary speed in the early hours of the morning, and the search, executed by a team led by the application’s affiant, demonstrate that the officers proceeded as though the limitations contemplated by the supporting documents were present in the warrant itself, and, as a result, their actions “bear none of the hallmarks of a general search.” Liu, 239 F.3d at 141. Under the facts of this case, we conclude that the benefits of deterrence do not outweigh the costs. In so holding, however, we reiterate the importance of law enforcement’s compliance with the probable cause and particularity requirements of the Fourth Amendment and emphasize that application of the exclusionary rule will vary in accordance with the facts of each case.