E.D.Pa.: Complete absence of “things to be seized” voided warrant and required exclusion even in face of GFE

The search warrant’s failure to include a list of things to be seized or an attachment made it a general warrant. The affidavit could not be relied upon where it was sealed and unavailable. This situation is close to the situation in Groh. With a full analysis of the situation and case law, the complete failure to include a list of things to be seized required application of the exclusionary rule. United States v. Wright, 730 F. Supp. 2d 358 (E.D. Pa. 2010)*:

In this case, we are presented with a warrant that, on its face, contains no description of the items to be seized and includes no attachment meeting the particularization requirement. In Groh, the Supreme Court recognized that a search conducted pursuant to such a warrant is an unconstitutional warrantless search, even when the warrant application sets forth the items to be seized during the search and the agent executing the search limits himself to the scope of the application. Therefore, I decline to characterize the Wright warrants as “general,” because they contain not a vague or generic list of items to be seized, but rather, as in Groh, no description at all. The Wright brothers’ argument that the warrants are invalid for lack of particularity is correct. See United States v. Yusuf, 461 F.3d 374, 393, 48 V.I. 980 (3d Cir. 2006) (discussing Groh); United States v. Wecht, 619 F.Supp.2d 213 (W.D.Pa. 2009) (granting a motion to suppress evidence when the affidavit, which was referred to on the warrant as an “Exhibit” and which contained the list of items to be seized, was sealed and was not attached to the warrant during execution).

. . .

Lazar and Hamilton are the two Circuit Court cases most factually similar to this case. Other courts, including the Third Circuit in Tracey, and the Second and Tenth Circuits, have issued opinions calling attention to Herring‘s focus on the level of police culpability in determining whether to apply the exclusionary rule. However, in those cases, there was enough specificity in the warrants for the courts to consider applying the good faith rule. In this case, the warrants were facially invalid and we therefore are not required to determine whether the executing officer acted in good faith.

In Herring, the Supreme Court did not abandon or question its clear statement in Leon that “a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” 468 U.S. at 923. In Tracey, the Third Circuit repeated this rule, presuming it to be valid even in light of Herring. In the absence of a clear Supreme Court or Third Circuit ruling that a facially invalid warrant can somehow be relied on in objective good faith, I do not believe the good faith inquiry set forth in Herring applies in this case. I acknowledge that the level of “police culpability” in this case is low, and that, had the warrant here had some description of the items to be seized, Herring would mandate a consideration of Officer Taylor’s level of responsibility for the error in this case. However, the Third Circuit has not signaled that Herring spelled the end of the exclusionary rule for facially invalid warrants, and a facially invalid warrant is what is clearly before me.

III. CONCLUSION

For the reasons set forth above, I will grant the motions to suppress the physical evidence seized during the search of the Wright apartments.