ALDISERT, Circuit Judge.
The government appeals from the District Court for the Eastern District of Pennsylvania's grant of Appellees' motions to suppress evidence seized from their apartments after the execution of two search warrants. The District Court held that the warrants ran afoul of the Fourth Amendment's particularity requirement by failing to "describe . . . the things to be seized," U.S. Const. amend. IV. Construing our precedent, the District Court concluded that the warrants' facial deficiencies obviated the need to "consider[][the] [o]fficer[`s] . . . level of responsibility for the error in this case," App. 035, and instead, triggered an automatic application of the exclusionary rule.
Although the government concedes that the executed warrants were facially invalid, it nonetheless challenges the District Court's decision to suppress the evidence. We conclude that the District Court—although its ultimate conclusion may prove to be correct—erred in holding that the warrants' "facial[] invalid[ity]" necessarily required suppression of the evidence,
Because we write primarily for the parties, who are familiar with the facts and the proceedings in the District Court, we will revisit them only briefly.
The Wright brothers (Michael and Randall, not the historically famous aviators) live in apartments one block apart in Allentown, Pennsylvania. In 2008 and 2009, the Drug Enforcement Agency (DEA) suspected the brothers of using the apartments to sell marijuana. Its suspicions were confirmed in January 2009, when a DEA informant twice bought a pound of marijuana from Michael Wright. The informant also reported seeing Randall Wright with large amounts of cash. Swearing to these facts in an affidavit of probable cause, DEA Agent Jeffrey Taylor sought warrants for the search of the Wrights' apartments. A Magistrate Judge issued the warrants on January 27, 2009, and they were executed the same day.
During the search of Randall Wright's apartment, DEA agents recovered four guns, several boxes of ammunition, about $7,900 in cash, 50 pounds of marijuana, and assorted drug paraphernalia. In Michael Wright's apartment, they found approximately $1,000 in cash, 43 pounds of marijuana, and assorted drug paraphernalia.
A grand jury indicted the Wrights for violations of various drug and firearms statutes. Before trial, the Wrights moved to suppress the evidence found, arguing that the warrants were invalid. The District Court held a suppression hearing, during which Agent Taylor testified that an ordinary warrant request begins with three documents: an affidavit of probable cause, a warrant application, and a face sheet. The affidavit of probable cause sets forth the facts justifying the warrant. The warrant application and face sheet are both preprinted forms with blank spaces in which the applicant is instructed to describe the person or property to be seized. It is common for applicants to fill in these sections by writing, "See ATTACHMENT A" or "See ATTACHMENT B." Attachment A is normally a description of the property to be searched, and Attachment B is normally a listing of the items to be searched for or seized.
In Agent Taylor's experience, a DEA agent ordinarily completes the affidavit of probable cause, and the United States Attorney's Office ordinarily prepares the warrant application and face sheet. The U.S. Attorney's Office then attaches the warrant application and face sheet to the DEA agent's affidavit of probable cause and submits the entire package to a Magistrate Judge for evaluation. Upon approval, the Magistrate Judge signs the face sheet, and the face sheet becomes the warrant. The appurtenant documents (e.g., the affidavit of probable cause, warrant application, and any other supporting documents) may or may not remain attached to the warrant when it is executed.
Those appear to be the procedures followed in this case: Agent Taylor prepared an affidavit of probable cause to search the Wrights' apartments, and an Assistant United States Attorney prepared two warrant applications and face sheets and submitted the entire package to a Magistrate Judge. In this case, however, the Assistant United States Attorney filled out the items-to-be-seized section of each face sheet with the words, "SEE ATTACHED AFFIDAVIT OF PROBABLE CAUSE," and the items-to-be-seized section of the warrant application with the words, "SEE ATTACHMENT A."
The problem in this case is that ATTACHMENT A describes the properties to be searched and not the items to be seized. Although the AFFIDAVIT OF PROBABLE CAUSE does state the items to be seized, it was removed from the warrants at the government's request, impounded, and sealed before the warrants were executed. As a result, although complete when signed by the Magistrate Judge, the final warrants lacked any description of the items to be seized at the time they were executed.
When asked at the suppression hearing whether he noticed that the warrants lacked an ATTACHMENT B or any other description of the items to be seized, Agent Taylor explained that he had been very busy organizing the raids upon the Wrights' apartments and had not noticed the deficiency. He testified that he was "intimately familiar" with the Fourth Amendment's requirement that warrants state with particularity the items to be seized during a search, but in this case he had relied upon the United States Attorney's office to complete the warrant process properly. App. 105. Although he knew that the warrants should have included a list of items to be seized, Agent Taylor testified that he "didn't take notice" of the list, or lack thereof, and "just assumed everything that was supposed to be there was there." App. 112.
After hearing this evidence, the District Court granted the Wrights' suppression motions. It held that the warrants were invalid because they failed to meet the Fourth Amendment's explicit directive to describe with particularity the items to be seized, and it rejected the government's argument that a good faith exception to the exclusionary rule should apply because, in the government's view, its constitutional violations stemmed from a "clerical error" rather than police misconduct. The government timely appealed.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under to 18 U.S.C. § 3731. We apply a mixed standard of review in the suppression context, reviewing "findings of fact for clear error," but exercising "plenary review over its legal conclusions."
We agree with the District Court that the warrants in this case—neither of which described any items to be seized—were invalid on their face. Whether the execution of the invalid warrants required suppression, however, is a question that requires a more thorough examination of law enforcement culpability than the inquiry undertaken by the District Court here. Because we, as a court of review, are not equipped to now find facts about culpability that would be needed for an exclusionary rule analysis, we will remand.
A government search of a private home presumptively violates the Fourth Amendment absent exigent circumstances or a valid warrant.
For that reason, we have imposed two requirements upon warrants that seek to satisfy the particularity requirement through incorporation by reference to an affidavit. First, "the warrant must expressly incorporate the affidavit, and the incorporation must be clear."
The District Court determined that the warrants here were invalid because they did not particularize the items to be seized from the Wrights' apartments. Although the warrants purported to incorporate by reference Agent Taylor's affidavit of probable cause, that affidavit did not actually accompany the warrants when they were executed because it was—at the government's request—impounded and filed under seal. The face of each Wright warrant thus lacked any description of the items to be seized, and the government did not properly incorporate into either warrant any document that satisfied the Fourth Amendment's particularity requirement. As a result, the searches of the Wrights' apartments were essentially "warrantless" within the meaning of the Fourth Amendment—a fact the government conceded at oral argument.
Although the government concedes that the warrants were defective, it nevertheless maintains that our holding in
In
The government's position is that
We are not impressed by the government's position, for four reasons. First, the government's arguments cannot be reconciled with the plain text of the Constitution. Documents that do not include a particular description of items to be seized are so facially deficient that they do not qualify as "warrants" at all.
Second, volumes of substantial authority support our conclusion. The Supreme Court has explained that a search was unconstitutional because the warrant failed to describe items to be seized and "did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the warrant."
Third, and contrary to the government's contentions, we conclude that
Finally, we are not persuaded by the government's attempt to attribute the warrants' defects to a "clerical error." Reply Brief for United States 9. The requirement that warrants state with particularity items to be seized is not merely clerical. Rather, "[a]s the text of the Fourth Amendment itself denotes, a particular description is the touchstone of a warrant."
The bottom line is this: in
Having settled that the warrants were deficient, we turn to the issue of whether their deficiencies, when coupled with the law enforcement conduct here, require suppression of the evidence found during the search. We conclude that the District Court's decision to suppress evidence was premised on an insufficient evaluation of police culpability and other facts crucial to a determination to exclude evidence. We will, therefore, remand to the District Court for further analysis.
Although evidence seized pursuant to an invalid warrant may not usually be admitted at trial,
In
Whether to apply the exclusionary rule depends on an evaluation of the nature of police conduct. When law enforcement officers "exhibit `deliberate,' `reckless,' or `grossly negligent' disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs."
Here, the District Court did not undertake this assessment of the facts and circumstances with respect to the behavior of law enforcement. After recognizing that exclusion is appropriate only when the level of police culpability is "deliberate, reckless, or grossly negligent,"
In failing to "consider[] . . . Officer Taylor's level of responsibility" and incorrectly assuming that our precedents stand for the bright-line proposition that exclusion is always required in instances of a facially invalid warrant, the District Court erred. First, to the extent that its brief aside that "the level of `police culpability' in this case [was] low" was a factual finding about culpability, id., that statement cannot be squared with its decision to apply the exclusionary rule. As noted above, only police behavior that can be characterized as "`deliberate,' `reckless,' or `grossly negligent'" merits exclusion.
Second, the District Court's decision to not undertake a factual analysis of culpability before applying the exclusionary rule seems to be driven, at least in part, by its misplaced reliance on a statement in our opinion in
Rather, a court must always analyze whether the exclusionary rule should apply before suppressing evidence. Indeed, the exclusionary rule is not "a strict-liability regime,"
Given the tenor and detail of the District Court's 31-page opinion, and in light of its ultimate decision to suppress the evidence, its characterization of the government's misconduct here as exhibiting simply a "low" level of culpability is perplexing. Indeed, we cannot readily reconcile that statement with the ratio decidendi of the Court's opinion up to that point. Whatever its rationale may have been, though, the District Court simply did not elaborate on its reasons for that statement, and it did not engage in the required analysis to determine whether the exclusionary rule should apply. On appeal, although our review of the available facts might lead us to reach the same ultimate decision to suppress the evidence, we are not in a position to reach out and undertake an analysis that is better left to the District Court in the first instance.
We have considered all of the arguments advanced by the parties and conclude that no further discussion is necessary. The judgment of the District Court will be VACATED and REMANDED for further proceedings consistent with this opinion.