{"id":14037,"date":"2014-11-05T10:14:45","date_gmt":"2014-11-05T15:14:45","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=14037"},"modified":"2014-11-05T13:04:57","modified_gmt":"2014-11-05T18:04:57","slug":"ca3-failure-to-include-attachment-when-sw-served-didnt-make-it-overbroad","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=14037","title":{"rendered":"CA3: Failure to include attachment when SW served didn’t make it overbroad"},"content":{"rendered":"

The failure to serve an attachment with the search warrant is not fatal despite it providing particularity. It was presented to the USMJ, and the officer\u2019s conduct was otherwise objectively reasonable. The question of good faith does not even have to be addressed. United States v. Franz<\/a>, 2014 U.S. App. LEXIS 21030 (3d Cir. November 4, 2014):
\n<\/p>\n

Franz contends that the constitutional defect in the execution of the warrant rendered it facially invalid and that no further analysis is required or allowed. Based on the comment in United States v. Leon, 468 U.S. 897 (1984), that “a warrant may be so facially deficient \u2014 i.e., in failing to particularize the place to be searched or the things to be seized \u2014 that the executing officers cannot reasonably presume it to be valid[,]” id. at 923, Franz argues that the exclusionary rule applies without exception to facially invalid warrants. He says that the District Court erred by looking beyond the facial invalidity of the warrant and assessing Nardinger’s culpability. He further argues that, even if culpability is considered, the exclusionary rule should still apply because Nardinger acted deliberately, in consultation with federal prosecutors.<\/p>\n

We disagree and hold that there is no need to exclude evidence based on Nardinger’s mistake in failing to present Attachment B to Franz in executing the warrant. More particularly, we reject Franz’s argument that a good-faith analysis is unnecessary. While our case law may not always have been clear on the need to consider good faith,10 see United States v. Graves, 951 F. Supp. 2d 758, 769-71 & n.5 (E.D. Pa. 2013) (discussing Virgin Islands v. John, 654 F.3d 412 (3d Cir. 2011), United States v. Tracey, 597 F.3d 140 (3d Cir. 2010), and United States v. Wright, 493 F. App’x 265 (3d Cir. 2012)), both the Supreme Court’s precedents and our own have been consistent in requiring a case-specific analysis of whether the exclusionary rule applies, rather than a categorical approach.<\/p>\n

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The exclusionary rule is a prudential doctrine designed to enforce the Fourth Amendment by deterring law enforcement from unreasonable searches and seizures. The rule achieves that end by preventing the government from relying at trial on evidence obtained in violation of the Amendment’s strictures. Davis v. United States, 131 S. Ct. 2419, 2426 (2011); United States v. Katzin, ___ F.3d ___, No. 12-2548, 2014 WL 4851779, at *3 (3d Cir. Oct. 1, 2014) (en banc). Because it comes at the cost of hiding often crucial evidence from a fact-finder, though, “[s]uppression of evidence … has always been our last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006); see also Leon, 468 U.S. at 918 (stating that evidence should be suppressed “only in those unusual cases in which exclusion will further the purposes of the exclusionary rule”).<\/p>\n

We have, of course, followed the Supreme Court’s lead. In United States v. Tracey, 597 F.3d 140 (3d Cir. 2010), we addressed the application of the exclusionary rule to a case involving a warrant that failed to incorporate an attached affidavit that would have cured the warrant’s lack of particularity. Id. at 149. We stated that the “limited exceptions [identified in Leon, including the facially deficient warrant exception,] are consistent with the approach taken in Herring because each of these circumstances involve conduct that is ‘deliberate, reckless, or grossly negligent,’ and thus the benefits of deterring future misconduct ‘outweigh the costs’ of excluding the evidence.” Id. at 151 (quoting Herring, 555 U.S. at 141, 144). We then examined whether the nature of the deficiency in the warrant made the warrant “‘so facially deficient’ that no reasonable officer could rely on it,” id. at 152-53, and whether the officer’s actions in obtaining and executing the warrant indicated that the deterrent purposes of the exclusionary rule would be served, id. at 153.<\/p>\n

We took a similar approach in Virgin Islands v. John, 654 F.3d 412 (3d Cir. 2011), a case involving a warrant affidavit that did not support a finding of probable cause to search for evidence of the crime listed on the face of the warrant. Id. at 413. After determining that one of Leon’s four scenarios applied, we turned to the culpability of the officer, determining that “her behavior was, at a minimum, grossly negligent.” Id. at 420-21. Most recently, in an en banc opinion in a case involving a warrantless search, we rejected the argument that a good-faith analysis is applicable only in certain situations already identified by the Supreme Court. Katzin, 2014 WL 4851779, at *9-10 (stating that to apply the Supreme Court’s precedent in such a limited manner would “improperly elevate [the Court’s previous] holding[s] above the general good faith analysis from whence [they] came”).<\/p>\n

Franz’s argument that a facially deficient warrant renders Nardinger’s culpability irrelevant thus runs counter to numerous cases emphasizing that, in examining the totality of the circumstances, we consider not only any defects in the warrant but also the officer’s conduct in obtaining and executing the warrant and what the officer knew or should have known.<\/p>\n

Nardinger’s conduct was, on the whole, objectively reasonable. … <\/p><\/blockquote>\n

See Woolly Mammoth Tusk Leads to Child Porn, Adds to Law on Searches<\/a> (“The hunt for a stolen woolly mammoth tusk that led to a conviction for child pornography has now contributed to the Third Circuit’s building case law against the suppression of evidence.”). No, it really didn’t “add to law on searches.”<\/p>\n","protected":false},"excerpt":{"rendered":"

The failure to serve an attachment with the search warrant is not fatal despite it providing particularity. It was presented to the USMJ, and the officer\u2019s conduct was otherwise objectively reasonable. The question of good faith does not even have … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[65],"tags":[],"class_list":["post-14037","post","type-post","status-publish","format-standard","hentry","category-particularity"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14037","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14037"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14037\/revisions"}],"predecessor-version":[{"id":14039,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/14037\/revisions\/14039"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14037"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14037"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14037"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}