4th Cir. allows incorporation by reference without attachment of “things to be seized”, underscores circuit split

The Fourth Circuit, recognizing a split with most other circuits, determines that incorporation by reference of a list of the “things to be seized” does not require physical attachment, finding refuge in one sentence of Groh v. Ramirez. United States v. Hurwitz, 459 F.3d 463 (4th Cir. August 22, 2006):

We recognize that a majority of our sister Circuit Courts of Appeals appear to require the satisfaction of both conditions before allowing a separate document to be read as part of the search warrant. See Bartholomew v. Pennsylvania, 221 F.3d 425, 428-29 (3rd Cir. 2000); United States v. McGrew, 122 F.3d 847, 849-50 (9th Cir. 1997); United States v. Dahlman, 13 F.3d 1391, 1395 (10th Cir. 1993); United States v. Dale, 301 U.S. App. D.C. 110, 991 F.2d 819, 846-47 (D.C. Cir. 1993) (per curiam); United States v. Morris, 977 F.2d 677, 681 n.3 (1st Cir. 1992); United States v. Curry, 911 F.2d 72, 77 (8th Cir. 1990). In this circuit, however, it is sufficient either for the warrant to incorporate the supporting document by reference or for the supporting document to be attached to the warrant itself. See Washington, 852 F.2d at 805 (concluding that warrant was sufficiently particular where the warrant completely failed to refer to the supporting affidavit listing items to be seized but the affidavit was attached, and explaining that “[a]n affidavit may provide the necessary particularity for a warrant if it is either incorporated into or attached to the warrant”) (emphasis added) (internal quotation marks omitted). At least one other circuit subscribes to this view. See Baranski v. Fifteen Unknown BATF Agents, 452 F.3d 433 (6th Cir. 2006) (en banc).

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These policy aims, as important as they may be, do not reflect a constitutional mandate that an executing officer possess or exhibit the affidavit or any other document incorporated into the warrant at the time of the search in order for the warrant to be valid. The Fourth Amendment does not require an officer to serve a search warrant before executing it. See Groh, 540 U.S. at 562 n.5. In fact, the Fourth Amendment is not offended where the executing officer fails to leave a copy of the search warrant with the property owner following the search, see United States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000), or fails even to carry the warrant during the search, see Mazuz v. Maryland, 442 F.3d 217, 229 (4th Cir. 2006). “[T]he requirement of particular description does not protect an interest in monitoring searches” or “engag[ing] the police in a debate” about the warrant. United States v. Grubbs, 126 S. Ct. 1494, 1501 (2006). Rather, “[t]he Constitution protects property owners . . . by interposing, ex ante, the deliberate, impartial judgment of a judicial officer” and “by providing, ex post, a right to suppress evidence improperly obtained.” Id. (internal quotation marks omitted). These protections are sufficient to ensure that the officer’s search is properly limited and to provide assurance to the property owner that the executing officer enjoys the lawful authority to search for specific items. Indeed, Hurwitz was able to examine Agent Lucas’s affidavit and its attachment and raise a full and complete challenge to the validity of the warrant after the search. We see nothing in the Constitution requiring that an officer possess or exhibit, at the time of the search, documents incorporated into a warrant as an additional safeguard for the particularity requirement. See Baranski, 452 F.3d at 443. Accordingly, the district court did not err by rejecting Hurwitz’s claim that the absence of the Attachment at the time of the search rendered the warrant invalid.

Report of ten possible illegal aliens entering back of house brought Border Patrol for a knock and talk. The person consenting to the entry had apparent authority to consent to the entry, despite voicing her reservations. She had been living there about a week, she answered the officers’ knock, and she offered water to the people inside. United States v. Salazar-Vasquez, 2006 U.S. Dist. LEXIS 58349 (S.D. Tex. August 18, 2006).*

Traffic stop ripened to reasonable suspicion as the facts developed during the conversation about the stop. United States v. Villalovos, 2006 U.S. Dist. LEXIS 58541 (W.D. La. July 21, 2006).*

Hudson v. Michigan cuts off an IAC claim against defense counsel for not challenging an alleged failure to knock and announce. In re Frank S., 142 Cal. App. 4th 145 (1st Dist. August 21, 2006).*