CA5: GFE saves search warrant without attachments limiting search because the search was not overbroad

The search warrant here did not have the attachments necessary when it was served, but the application for the warrant with all the attachments was reviewed by an AUSA, the USMJ, and all the officers involved were well aware of its limitations. The good faith exception applied. United States v. Allen, 625 F.3d 830 (5th Cir. 2010):

The warrant at issue clearly does not pass constitutional muster. It is undoubtedly broad because of its lack of particularity, absent the affidavit and attachments. Simply incorporating the affidavit and attachments, which stated specifically what the search entailed and what was to be seized, by reference in the warrant could have cured the deficiency of the warrant. That being said, the issue here is not the constitutional invalidity of the warrant, but whether the evidence seized pursuant to the unconstitutionally vague warrant should be suppressed. Indeed, the Supreme Court has clearly stated that suppression is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

Even though the warrant in this case was not sufficiently particular, we conclude that the fruits of the search are admissible under the good-faith exception. See Leon, 468 U.S. at 913 (“[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible ….”). The district court correctly found that the agents involved acted in objectively reasonable good-faith in relying on the search warrant.

As the Supreme Court pointed out recently in Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 699-700, 172 L. Ed. 2d 496 (2009), the exclusionary rule is a judicially fashioned remedy whose focus is not on restoring the victim to his rightful position but on deterring police officers from knowingly violating the Constitution. Therefore, evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)); see also United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). Otherwise, the “good-faith” rule of Leon applies.

. . .

After the review by his co-workers, Agent Stone presented the application and warrant to the U.S. Attorney’s office for review. Only after that review was complete, did Agent Stone present the affidavit to Magistrate Judge Platt for review. Judge Platt took the time to review the affidavit and the search warrant. The agent also testified that Judge Platt signed off on language in the search warrant that states, “I am satisfied that the affidavit and any record testimony establish probable cause to believe that the person or property so described is now concealed on the person or premises above described and establish grounds for the issuance of this warrant.” It is clear from the testimony given that Magistrate Judge Platt carefully reviewed the warrant, the affidavit, and the attachment and did not just give the documents a cursory review. Furthermore, he signed the affidavit to which the specific list of items to be seized was attached.

Prior to executing the search warrant, Agent Stone gave his fellow agents, including the forensic analyst, a copy of the search warrant as well as the affidavit and attachments which specifically listed the items to be seized. Stone testified that he did this so they could review it and know what they were searching for. In fact, all of the agents and law enforcement officers who participated in the search were given the affidavit and attachments in advance of the search. There was a brief meeting before executing the warrant, but the affidavit and its attachments were all reviewed and handed to the agents prior to that meeting. Agent Stone told the court at the suppression hearing that after they began executing the warrant, they contacted the U.S. Attorney’s office several times with questions about what they could seize.

[It’s well known that I’m no fan of the good faith exception as created by Leon, but this case is one of those where I cannot disagree. There clearly was probable cause [there was in Leon, too, but the court pretended there wasn’t] and everybody involved in the search knew the limitations. The question of prejudice to the target of the search is always a relevant consideration from the warrant failures. Did the officers exceed the limits of the warrant per the attachments that were left off? No. If they did, then this would have been a far different case.]