Case: 14-11099    Document: 00514231783    Page: 1   Date Filed: 11/09/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                 No. 14-11099                           FILED
                                                                November 9, 2017
                                                                   Lyle W. Cayce
LAVELLE EVANS,                                                          Clerk

             Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

             Respondent - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before KING, JONES, and ELROD, Circuit Judges.
KING, Circuit Judge:
      Lavelle Evans was convicted for the murder of Crystal Jenkins and
sentenced to life in prison. After exhausting his state habeas remedies, Evans
petitioned for federal habeas relief. Evans’s pro se petition claims, among other
things, that his trial counsel rendered ineffective assistance by failing to move
for suppression of a cell phone found in Evans’s home. He contends that the
cell phone, and the subsequently discovered call records linking him to the
scene of the murder, were obtained from an unconstitutional search conducted
pursuant to a deficient warrant. The district court denied this claim. We
granted a certificate of appealability and now we AFFIRM.
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                                 No. 14-11099
                                       I.
      Lavelle Evans was convicted by a Texas jury for the murder of Crystal
Jenkins and sentenced to life in prison. See Evans v. State, No. 05-08-01289-
CR, 

, at *5–6 (Tex. App.—Dallas Mar. 9, 2010, pet. ref’d)
(not designated for publication). Prior to the murder, Evans and Jenkins had
been charged as coconspirators in a drug case in El Dorado, Arkansas.
On October 7, five days before their trial was set to start, the Arkansas
prosecutor told Evans’s attorney that Jenkins had agreed to testify on behalf
of the prosecution. Later that morning, Evans met with his defense attorney
to discuss the impending trial. That night, between 7:30 p.m. and 8:00 p.m.,
Jenkins’s brother saw Jenkins and Evans in a car together in El Dorado.
Jenkins told her brother that she and Evans were going back to her house.
      The next morning at around 5 a.m., a man reported that he heard several
gunshots while he was out for a stroll around White Rock Lake in Dallas,
Texas. On the shore of White Rock Lake, police found the body of a woman shot
three times. The deceased would later be identified as Jenkins.
      Once Jenkins’s body was identified, police obtained a search warrant for
Evans’s home. This warrant and the affidavit supporting it are crucial to this
appeal. The section of the warrant meant for designating the things to be
seized failed to do so. Instead, it provided a description of Evans’s house in El
Dorado. The warrant did not mention or otherwise reference any other
supporting material. An affidavit from Investigator Mark Thomas provided
more information on the things to be seized. Investigator Thomas swore in the
affidavit that “instruments of a crime,” among other things, were being
concealed at Evans’s home. It further explained that on the night before the
murder, Evans called Jenkins’s sister. He asked for Jenkins, and the sister
handed over the phone. The sister then overheard Evans telling Jenkins to
meet him at a Subway restaurant. The affidavit was sworn to in the presence
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                                      No. 14-11099
of the judicial officer who issued the warrant, and the judicial officer signed
the affidavit. The state habeas record does not reveal whether the affidavit was
physically attached to the warrant or even physically present when the
warrant was executed.
       Pursuant to the warrant, Investigator Thomas and several other officers
searched Evans’s home and seized, along with other things, two cell phones.
The officer who seized the cell phones kept them in his possession instead of
logging them. Only one of the cell phones worked. The working phone’s call
records showed that between October 7 and 9 the cell phone had made or
received at least 197 calls. Cell tower data showed that the cell phone had left
El Dorado at 10:30 p.m. the night of October 7, traveled to Dallas, and then
returned to El Dorado no later than 9:38 a.m. on October 8. The data
specifically placed the cell phone near White Rock Lake between 4:38 a.m. and
5:07 a.m. Thus, the data put Evans at the scene of the murder. 1 The call log
also led police to Evans’s relatives, Jarvis Moore and Quinn Moore. Both of
them spoke to Evans on multiple occasions around the time of the murder.
They described Evans as sounding upset and possibly “suicidal or something.”
       At trial, it came out that Evans lacked a solid alibi. In a letter postdating
the murder, Evans wrote to a friend that he could not have killed Jenkins
because he had been out drinking with three other friends that night. April
McGraw, Evans’s girlfriend at the time of the murder, testified to something
different. According to McGraw, she left Evans with her child at 6:30 p.m. on
October 7 to go to work and returned at 7:10 a.m. the next morning, at which
point Evans was home. When the prosecution questioned her about Evans’s


       1The phone number for this cell phone was registered to Roshanda Sims. Sims and
Evans had previously dated, and Sims testified at trial that she obtained the cell phone for
Evans. Further, the phone contained pictures of Evans, April McGraw (Evans’s girlfriend at
the time of the murder), and a boy believed to be Evans’s son. The cell phone call log from
October 7 to 9 also showed at least 48 calls with McGraw.
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                                  No. 14-11099
claim in his letter that he had been out drinking, McGraw stated that Evans
must have been lying because there was “no way” that he would have left the
house. Separately, there was evidence that someone had tampered with
Evans’s home monitoring unit on the night of Jenkins’s murder. At the time of
the murder, Evans was on supervised release in an unrelated case, and he wore
a device on his wrist that transmitted a signal to a unit in his home that
monitored every time he came and went. The night of the murder, the
monitoring unit had been disabled and the backup battery tampered with. The
next morning at 9:54 a.m., the monitoring unit was reconnected and turned
back on.
      Evans was tried and convicted in Texas for capital murder. The State did
not seek the death penalty, and Evans was sentenced to life in prison. Evans’s
direct appeal was unsuccessful. In February 2011, he filed a pro se state habeas
petition. In it, he raised several claims, including the particular ineffective
assistance claim currently before us. Specifically, Evans contended that his
trial counsel rendered ineffective assistance by failing to move for suppression
of the working cell phone and call records. A Texas state trial court rejected all
of Evans’s claims. The court rejected Evans’s ineffective assistance claim based
on the defaulted Fourth Amendment claim because it found that his trial
counsel “believed the best means of attacking the search warrant was on the
documentation of what was seized and the chain of custody of the items seized.”
Thus, the trial court recommended that Evans’s claim be denied because he
had failed to show that his trial counsel’s performance was deficient or that he
was prejudiced. The Texas Court of Criminal Appeals (“TCCA”) denied Evans’s
petition without a written order on the findings of the trial court.
      In February 2013, Evans, again proceeding pro se, filed a federal habeas
petition. Once again, he asserted, among his many claims, the same ineffective
assistance claim based on his trial counsel’s failure to move to suppress. The
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                                  No. 14-11099
case was referred to a magistrate judge, who recommended denying all of
Evans’s claims as well as his request for an evidentiary hearing. With respect
to Evans’s ineffective assistance claim based on the defaulted Fourth
Amendment claim, the magistrate judge recommended finding that Evans had
“not demonstrated either deficiency or prejudice.” Evans v. Stephens, No. 3:13-
CV-0021-B, 

, at *13 (N.D. Tex. Aug. 29, 2014). The
magistrate judge concluded that the affidavit supporting the warrant
identified the items to be seized with sufficient particularity. Thus, the
warrant’s failure to incorporate the affidavit or identify the items with
particularity was “a clerical error . . . subject to the good-faith exception to the
Texas exclusionary rule.” 

The magistrate judge further
recommended finding that Evans’s trial counsel had strategically chosen to
object to the cell phone’s admission based on documentation and chain of
custody arguments, rather than allege a Fourth Amendment violation. 

court adopted the magistrate judge’s recommendations and denied
Evans a certificate of appealability (“COA”) on all of his claims. 

      Evans filed a motion for a COA in this court. We granted a COA on
Evans’s ineffective assistance claim based on his defaulted Fourth Amendment
claim. We declined to grant a COA on his other claims.
      Evans argues on appeal that his trial counsel was constitutionally
ineffective for failing to move for suppression. Specifically, Evans contends that
the search which uncovered the working cell phone violated the Fourth
Amendment because the warrant failed to identify the items to be seized with
particularity and failed to incorporate the supporting affidavit. The call
records, as fruit of the poisonous tree, would therefore have been subject to the
exclusionary rule had Evans’s trial counsel moved to suppress. Moreover,
Evans argues that under Groh v. Ramirez, 

(2004), the good-faith
exception to the exclusionary rule does not apply because no reasonable officer
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                                       No. 14-11099
could have believed that the warrant complied with the Fourth Amendment
given the warrant’s obvious lack of particularity. Finally, Evans contends that
he has demonstrated prejudice because the call records were the key piece of
evidence placing him at the scene of the murder. 2
                                              II.
       As a state prisoner raising a claim previously adjudicated on the merits
by a state court, 3 Evans’s habeas petition is governed by 28 U.S.C. § 2254(d)
as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Evans does not contend that the state habeas court erred with
respect to any factual determination. Rather, he alleges error in the state
habeas court’s interpretation and application of federal law. Section 2254(d)(1)
therefore governs his claim. That section authorizes federal courts to grant
habeas relief to state prisoners whose federal claims were “adjudicated on the
merits” in state court only if the state court decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined       by     the     Supreme        Court      of     the      United     States.”
28 U.S.C. § 2254(d)(1). Evans therefore can only receive habeas relief if he
shows either that the state habeas court’s decision was “contrary to” federal
law then clearly established by the Supreme Court or that the decision




       2  Evans does not argue that the cell phones or call records would be inadmissible, if
objected to, under Texas law. Nor does he argue that the affidavit did not provide probable
cause or describe the items to be seized with particularity. Finally, he does not argue that he
is entitled to an evidentiary hearing based on the state habeas court’s failure to allow him to
develop the record. We will therefore not consider these arguments. See Norris v. Causey, 

, 373 n.10 (5th Cir. 2017).
        3 This follows from the rebuttable presumption that unexplained orders adjudicate

the petitioner’s claims on the merits. Harrington v. Richter, 

, 99 (2011). Here, we
find nothing in the state trial court’s findings or the TCCA’s summary denial to rebut the
presumption.

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                                 No. 14-11099
involved an “unreasonable application” of such law. See Harrington v. Richter,

, 100 (2011).
      Both bases for relief present the same threshold question: whether the
relevant federal law is “clearly established.” See Yarborough v. Alvarado,

, 660 (2004). Clearly established federal law is determined by the
United States Supreme Court and refers to the Court’s “holdings, as opposed
to . . . dicta.” Lockyer v. Andrade, 

, 71 (2003) (quoting Williams v.
Taylor, 

, 412 (2000)). This circuit’s precedents plainly do not
constitute “clearly established Federal law, as determined by the Supreme
Court.” 28 U.S.C. § 2254(d)(1); see Renico v. Lett, 

, 778 (2010). We
may not use our sister circuits’ precedents “to refine or sharpen a general
principle of Supreme Court jurisprudence into a specific legal rule.”
Marshall v. Rodgers, 

, 64 (2013) (per curiam). Nor may we “canvass
circuit decisions to determine whether a particular rule of law is so widely
accepted among the Federal Circuits that it would, if presented to [the
Supreme] Court, be accepted as correct.” 

Parker v. Matthews,

, 47–49 (2012) (per curiam); and then citing 

–
79). Even so, lower court precedents are not wholly irrelevant. Divergent
approaches among the lower courts can reflect a lack of guidance from the
Supreme Court and signal that federal law is not clearly established. See Carey
v. Musladin, 

, 76–77 (2006). But such divergence is not dispositive,
as judicial experience shows that even reasonable judges may sometimes reach
unreasonable conclusions. Cf. 

(“[T]he mere existence
of conflicting authority does not necessarily mean a rule is new.” (quoting
Wright v. West, 

, 304 (1992) (O’Connor, J., concurring))). This
threshold question of whether the relevant law is clearly established can be
dispositive: a state court’s decision cannot be contrary to or an unreasonable


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                                 No. 14-11099
application of clearly established federal law if there is no clearly established
federal law. See 

.
      To acquire relief under the contrary to clause, Evans must show that the
state court applied “a rule that contradicts” governing Supreme Court caselaw
or confronted “materially indistinguishable” facts from a Supreme Court
decision and arrived at a different result. Price v. Vincent, 

4, 640
(2003) (quoting 

–06). The state habeas court need not
provide a “formulary statement” of the controlling test. See Early v. Packer,

, 9 (2002) (per curiam). In fact, the state habeas court need not even
display awareness of the Supreme Court’s cases “so long as neither the
reasoning nor the result of the state-court decision contradicts them.” 

In the “run-of-the-mill” case, where the state habeas court applies the correct
legal rule, the contrary to clause will not fit and the state habeas court’s
decision will be reviewed under the unreasonable application clause.
See 

.
      To acquire relief under the unreasonable application clause, Evans must
show that the state court’s ruling on his claim “was so lacking in justification
that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” 

.
Importantly, whether the state court’s decision involved an unreasonable
application of Supreme Court precedent does not depend solely on the state
habeas court’s actual analysis. Section 2254(d) requires us to “determine what
arguments or theories supported or, . . . could have supported, the state court’s
decision.” 

(emphasis added). We are therefore tasked with
considering not only the arguments and theories the state habeas court
actually relied upon to reach its ultimate decision but also all the arguments
and theories it could have relied upon. Cf. Neal v. Puckett, 

, 244–
46 (5th Cir. 2002) (en banc) (per curiam) (holding that § 2254(d) directs us to
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                                       No. 14-11099
review “only a state court’s ‘decision,’ and not the written opinion explaining
that decision”). 4 Once we have gathered the arguments and theories that could
support the state court’s ultimate decision, § 2254(d) requires us to “ask
whether it is possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of [the
Supreme] Court.” 

. This standard is purposefully
“difficult to meet.” 

is difficult for yet another reason. Not only must we invent
possible avenues the state court could have relied upon to deny Evans relief
and then give those theories the benefit of the doubt; we also may consider only
the factual record before the state court. Section 2254(d)(1), through its use of
“backward-looking language,” limits our review “to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,

, 181–82 (2011). 5



       4  We have not applied the rule from Neal on all occasions. See Salts v. Epps, 

, 479–80 (5th Cir. 2012). In Salts, we held that § 2254(d)(1)’s bar to relief was removed
when a state habeas court stated a rule that “directly conflict[ed]” with a Supreme Court
case. 

Accordingly, we were not required to “imagine any possible reasonable
analysis . . . that could support the state appeals court’s decision.” 

Instead, we
reviewed de novo. 

        Here, the state habeas court did not state or apply a rule that directly conflicts with
Supreme Court precedent. The state habeas court recited briefly but accurately the two
Strickland prongs and relied upon them in dismissing Evans’s claim. The state habeas court’s
analysis was far from thorough, but we may not review its decision de novo simply because
we find its written opinion “unsatisfactory.” See 

. There is no indication
that the state habeas court affirmatively misrepresented or misstated federal law.
Accordingly, we find Neal is applicable, and we will consider the theories and arguments that
could have potentially supported the state habeas court’s decision.
        5 Several of our pre-Pinholster cases indicate that an evidentiary hearing may be

appropriate when the state record is deficient. See, e.g., Martin v. Maxey, 

, 848
(5th Cir. 1996) (remanding for further factual development on whether trial counsel was
ineffective in failing to move to suppress evidence and whether the exclusion of evidence
would have affected the case); see also United States v. Culverhouse, 

, 898 (5th
Cir. 2007) (“We do not have the requisite evidence before us to decide either ineffective
assistance issue raised in [the petitioner’s] COA. Rather than decide [the petitioner’s]
ineffective assistance claims based on scant evidence or unnecessary assumptions, ‘the better
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                                       No. 14-11099
       In sum, in order to show that the district court erred in denying his
habeas petition, Evans must show, based on the state-court record alone, that
any argument or theory the state habeas court could have relied on to deny
Evans relief would have either been contrary to or an unreasonable application
of clearly established federal law as determined by the Supreme Court. With
this in mind, we turn to Evans’s claim.
                                             III.
       To assess Evans’s claim, we begin by determining the relevant clearly
established federal law as set forth by the Supreme Court. This leads us to the
Sixth Amendment and, more specifically, the Strickland line of cases
governing ineffective assistance of counsel. Next, we consider the Fourth
Amendment and the good-faith exception to the exclusionary rule. Evans’s
defaulted Fourth Amendment claim propels his ineffective assistance claim—
if it fails, so too will the rest of Evans’s case. We conclude just that: Evans’s
defaulted Fourth Amendment claim is undermined by the good-faith exception,
and therefore Evans is not entitled to relief. 6
                                              A.
       “The Sixth Amendment right to counsel ‘is the right to the effective
assistance of counsel.’” Buck v. Davis, 

, 775 (2017) (quoting


approach is to have the district court conduct an evidentiary hearing.’” (quoting United States
v. Herrera, 

, 582 (5th Cir. 2005))). After Pinholster was decided, we have
indicated that the state court record alone must reveal that the state habeas court
unreasonably applied federal law under § 2254(d)(1) before an evidentiary hearing is
permitted. See Smith v. Cain, 

, 634–35 (5th Cir. 2013). Further, a petitioner
seeking an evidentiary hearing must also satisfy the requirements of § 2254(e)(2). See 

We need not determine whether in this case Evans would have to satisfy the
requirements of § 2254(d)(1) based solely on the state court record before we could consider
granting him an evidentiary hearing. Evans failed to brief arguments regarding the district
court’s denial of his request for an evidentiary hearing, and therefore we do not consider
whether one is appropriate. See 

n.10.
        6 The state habeas court took a different tack. It focused on whether Evans’s counsel

acted strategically in raising chain of custody and authenticity arguments instead of a
suppression motion. It did not consider the underlying Fourth Amendment violation.
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                                No. 14-11099
Strickland v. Washington, 

, 686 (1984)). For Evans to prevail on
his ineffective assistance claim, he must satisfy the two familiar Strickland
prongs: he “must show both that counsel performed deficiently and that
counsel’s deficient performance caused him prejudice.” 

466 U.S. at 687). Strickland’s first prong “sets a high bar.” 

counsel “was entitled to formulate a strategy that was reasonable at the time
and to balance limited resources in accord with effective trial tactics and
strategies.” 

(first citing Knowles v. Mirzayance,

, 125–26 (2009); then citing Rompilla v. Beard, 

, 383
(2005); then citing Wiggins v. Smith, 

, 525 (2003); and then citing

). “A court considering a claim of ineffective
assistance must apply a ‘strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional assistance.” 

(quoting 

). To meet Strickland’s second prong,
Evans “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” 

.
      Evans seeks to establish the two Strickland prongs through his defaulted
Fourth Amendment claim. For Evans to demonstrate deficient performance,
he must at a minimum show that the evidence “would have been suppressed if
objected to.” See Ward v. Dretke, 

, 488 (5th Cir. 2005)
(quoting Martin v. Maxey, 

, 848 (5th Cir. 1996)) (citing Kimmelman
v. Morrison, 

, 375 (1986)). But even if the suppression motion
would be non-frivolous, failing to object, when viewed in light of all the
circumstances, may still constitute a reasonable trial strategy. See

(“[T]he failure to file a suppression motion does
not constitute per se ineffective assistance of counsel . . . .”). For Evans to
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                                       No. 14-11099
demonstrate prejudice, he must show “there is a reasonable probability that
the verdict would have been different absent the excludable evidence.”

       Proof of both prongs turns on whether the evidence would be excluded if
counsel moved to suppress. Obviously, counsel is not deficient for failing to
make meritless suppression motions. And there can be no reasonable
probability of a different result if the evidence would come in anyway. In effect,
Evans’s defaulted Fourth Amendment claim is an “element of proof of his Sixth
Amendment claim.” See 

call records were excludable turns on whether the call
records fall within the good-faith exception to the exclusionary rule. Given
§ 2254(d)(1) deference, Evans must establish not only that suppression of the
call records would be the correct result, but also that it would be contrary to or
an unreasonable application of clearly established federal law for the state
habeas court to rule otherwise. 7 We ultimately conclude that Evans cannot
meet this demanding standard.
                                              B.
       The Fourth Amendment commands that no warrant shall issue except
those “particularly describing the . . . things to be seized.” U.S. CONST. amend.
IV. It is the warrant itself that must meet this particularity requirement, not
the warrant’s supporting documents. See 

. A search of a



       7 When an ineffective assistance claim is contingent upon an embedded constitutional
rule of criminal procedure, we must determine whether that embedded rule has been clearly
established. See Peterson v. Cain, 

, 511 (5th Cir. 2002) (“The AEDPA effectively
codified Teague such that federal habeas courts must deny relief that is contingent upon a
rule of law not clearly established at the time the state conviction becomes final.”); see also
Rivas v. Thaler, 432 F. App’x 395, 403 (5th Cir. 2011) (per curiam) (refusing to consider a
new constitutional rule of criminal procedure as a basis for an ineffective assistance of
counsel claim); Palacios v. Burge, 

, 562 (2d Cir. 2009) (applying § 2254(d)(1)’s
unreasonable application standard to an embedded Fourth Amendment claim).
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                                      No. 14-11099
home pursuant to a warrant that does not provide any description of the items
to be seized is a “warrantless” search within the meaning of Supreme Court
caselaw and is therefore unconstitutional (provided no exception to the
warrant requirement applies). 

In Groh, the Supreme Court held
that a warrant was facially invalid when it described the premises to be
searched in the section which would have normally contained a description of
the things to be seized. 

557. The warrant did not reference
supporting documents. 

Nor was it accompanied by the application
or affidavit when it was delivered to the premise’s owner (both the application
and affidavit were under seal). 

was therefore facially invalid,
and the search conducted pursuant to that warrant was unconstitutional.

8
       Proof of a Fourth Amendment violation does not automatically require
suppression of unconstitutionally obtained evidence. See Herring v. United
States, 

, 137 (2009). The traditional exclusionary rule, “that all
evidence obtained by searches and seizures in violation of the Constitution is,
by that same authority, inadmissible in a state court,” Mapp v. Ohio, 

, 655 (1961), has been sharply curtailed through the good-faith exception.
This exception to the exclusionary rule, adopted by the Supreme Court in
United States v. Leon, 

(1984), arises frequently in the context of


       8Even though the Court in Groh held that it is the warrant itself that must meet the
particularity requirement, the Court has left open whether a warrant may incorporate other
documents through reference or accompaniment to meet the particularity requirement. See

–58. The Court expressly refused to hold “that the Fourth Amendment
prohibits a warrant from cross-referencing other documents.” 

The Court then went
on to note that “most,” but not all, circuits allow a warrant to be saved by a referenced and
accompanying affidavit. 

But the Groh affidavit was neither referenced nor
accompanying, and the Court therefore cut its analysis of incorporation short. 

       The State argues that there was no Fourth Amendment violation because Evans
cannot show the affidavit did not accompany the warrant. We do not address this argument
because even if there were a Fourth Amendment violation, we conclude that the call records
would still be admissible under a reasonable application of clearly established federal law.
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                                 No. 14-11099
searches conducted pursuant to an invalid warrant. In a companion case to
Leon, the Court held that the “exclusionary rule should not be applied when
the officer conducting the search acted in objectively reasonable reliance on a
warrant issued by a detached and neutral magistrate that subsequently is
determined to be invalid.” Massachusetts v. Sheppard, 

, 987–88
(1984). Crucially, however, the Court qualified what it meant by “objectively
reasonable reliance.” See 

–23. Most relevantly for the case
currently before us, the Court held that “depending on the circumstances of the
particular case, 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.” 

(citing

–91).
      The Groh Court picked up where Leon left off. There, it held that an
officer was not entitled to qualified immunity when the warrant provided no
description of the items to be seized. 

, 563–64. “Given
that the particularity requirement is set forth in the text of the Constitution,
no reasonable officer could believe that a warrant that plainly did not comply
with that requirement was valid.” 

(citing Harlow v. Fitzgerald, 

, 818–19 (1982)). Just “a simple glance” at the warrant “would have
revealed a glaring deficiency that any reasonable police officer would have
known was constitutionally fatal.” 

The Court noted that absent
specification of the items to be seized in the warrant, the magistrate’s assent
could theoretically be limited to particular items the affidavit sought and not
all. 

While Groh addressed the standard for qualified immunity
in a Bivens action, the Court specified that if the case had arisen in the
exclusionary rule context, the good-faith exception would not apply because
both qualified immunity and the good-faith exception involve “the same
standard of objective reasonableness.” 

n.8 (quoting Malley v. Briggs,
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                                 No. 14-11099

, 344 (1986)); see United States v. Allen, 

, 838 (5th
Cir. 2010) (applying Groh to a good-faith exception case).
        Evans argues that the relevant facts surrounding the Groh warrant and
the warrant in this case are “materially indistinguishable.” He is right in all
respects except one: here the affidavit, in addition to the warrant, was signed
by a judicial officer. We conclude that this difference distinguishes Groh such
that the state habeas court would not be unreasonable in finding the call
records would be subject to the good-faith exception.
        The nature of the good-faith exception supports this conclusion. The
exception’s application is guided by the exclusionary rule’s purpose—
deterrence of police misconduct. See 

–44. Lower courts
must consider whether the police’s conduct was “sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.” 

Groh supplies a vital data point that directs lower courts when performing this
balancing. But even with this, the balancing analysis still necessarily involves
a “substantial element of judgment.” See 

. Given the
inherent judgment involved, we are compelled to give “more leeway” in
deciding whether an application of the good-faith exception is reasonable. See

of this leeway, we are convinced that fairminded disagreement
could exist over whether Groh is materially distinguishable from this case. In
fact, we have already distinguished Groh in a similar factual situation. In
Allen, we held that the warrant in question was not sufficiently particularized
to pass constitutional muster as it provided an overly broad description of the
items to be seized. 

–36. We also observed that the
affidavit could not save the warrant from invalidity because it was
unreferenced. 

We then considered the proper remedy for the
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                                  No. 14-11099
constitutional violation. 

that the proper remedy was
suppression of the evidence and that Groh compelled this result. 

We
disagreed. 

We agreed that similarly to Groh (though not to the same
extent) the warrant presented “an obvious error” which made it facially invalid.

us “[t]he distinguishing factor” was “that the magistrate judge
signed not only the warrant, but also the affidavit, to which the list of items to
be seized was attached.” 

the executing officer an “additional
objective reason to believe the warrant was valid.” 

this, the
officer’s conduct was less culpable, and therefore less likely to be deterred by
applying the exclusionary rule, than the conduct in Groh.” 

we
also cited additional factors that reduced the agents’ culpability (the warrant
application was precleared by the U.S. Attorney’s office and the agents had
copies of the affidavit with them when conducting the search). 

It is
certainly possible that without these additional factors, Allen would have come
out differently. Were this case presented to us on direct appeal, we might hold
that a mere signature by a judicial officer on the affidavit is insufficient to
establish good-faith reliance on the warrant. But we cannot go so far as to hold
that such a conclusion would be beyond any possibility of fairminded
disagreement—especially given that we labeled the magistrate’s signature as
the distinguishing factor between Allen and Groh.
      Our confidence in this position is cemented by one of the purposes of the
particularity requirement. The requirement safeguards against general
searches by giving magistrate judges the ability to curtail the scope of searches.
See 

–61. In general, when a warrant does not state the
things to be seized, the executing officers have no reasonable basis for
determining which items they are authorized to search for and seize. “[U]nless
the particular items described in the affidavit are also set forth in the warrant
itself . . . there can be no written assurance that the Magistrate actually found
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                                  No. 14-11099
probable cause to search for, and to seize, every item mentioned in the
affidavit.” 

But when the magistrate signs the affidavit, such written
assurance exists, and the executing officer has an objectively reasonable basis
for concluding that a finding of probable cause was made with regard to all the
items listed in the affidavit. As we observed in Allen “the magistrate judge’s
signature on the affidavit reduces the concern that he did not agree to the scope
of the search as defined and limited therein.” 

. Thus an
officer would have a reasonable basis for concluding that “one of the core
purposes of the Fourth Amendment” had been fulfilled. 

a theory—which is neither contrary to nor an unreasonable
application of clearly established federal law—could support the state habeas
court’s denial of relief, and therefore Evans is entitled to none.
                                       IV.
      For the foregoing reasons, we AFFIRM.




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