UNITED STATES оf America, Appellant v. Michael WRIGHT and Randall Wright.
No. 10-3552.
United States Court of Appeals, Third Circuit.
Argued Sept. 20, 2011. Filed: Aug. 16, 2012.
696 F.3d 265
ALDISERT, Circuit Judge.
We review a District Court‘s denial of a motion to suppress for clear error as to the underlying facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002). We exercise plenary review, however, of the District Court‘s application of the law to those facts. Id.
A seizure occurs where there is either an application of physical force to restrain movement, or submission to a show of police authority. United States v. Brown, 448 F.3d 239, 245 (3d Cir.2006) (quoting California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). “[I]f a suspect in the absence of physical force does not submit to an officer‘s show of authority, there is no seizure and no Fourth Amendment claim.” Brown, 448 F.3d at 245 (citing Hodari D., 499 U.S. at 626-27). Because there was no physical force applied here and because Higdon did not actually stop in response to the officers’ demand, he cannot be considered to have been seized under the Fourth Amendment. The officers may have made a show of authority, but Higdon failed to comply with this authority. While Higdon did turn briefly to look at the officers in response to their command, a seizure requires submission to police authority that is “something more than a momentary pause.” United States v. Waterman, 569 F.3d 144, 146 (3d Cir.2009). Accordingly, the District Court did not err in denying Higdon‘s motion to suppress.
III.
For the foregoing reasons, we will affirm the District Court‘s judgment.
Mark S. Greenberg, (Argued), Philadelphia, PA, for Appellee Michael Wright.
Michael N. Huff, Philadelphia, PA, for Appellee Randall Wright.
Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges.
OPINION OF THE COURT
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 requiremеnt by failing to “describe ... the things to be seized,”
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, id., without first engaging in the Supreme Court‘s prescribed exclusionary rule analysis. We will therefore vacate and remand the case to permit the District Court to make findings of fact and to perform the requisite analysis.
I.
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.
A.
The Wright brоthers (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 affida-
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.
B.
A grand jury indicted the Wrights for violations of various drug and firearms statutes. Before trial, the Wrights moved to suppress the evidence found, аrguing 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 fоr 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 fоllowed 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 оther 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
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.
II.
The District Court had jurisdiction under
III.
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 rеquires 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. See Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). To be valid, the relevant portion of the Fourth Amendment requires that a warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.”
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.” Tracey, 597 F.3d at 147 (quotation omitted). Second, the affidavit must accompany the warrant; it cannot be impounded and sealed. See Bartholomew, 221 F.3d at 429-430 (“[W]here the list of items to be seized does not appear on the face of the warrant,
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 Bartholomew—that a warrant is invalid if it depends entirely upon a sealed affidavit for particularity, 221 F.3d at 428-429—is “subject to doubt,” Brief for United States 20, and asks us to reconsider whether a sealed affidavit can satisfy the Fourth Amendment‘s particularity requirement after all.
In Groh, the Supreme Court considered a warrant that not only failed to describe the items to be seized—like the warrants here—but also failed to incorporate any document by reference. See 540 U.S. at 558. The Court rejected the argument that an affidavit of probable cause, presented to the magistrate judge and then filed under seal, saved the warrant‘s validity: “The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.” Id. at 557.
The government‘s position is that Groh is distinguishable becausе the warrant there did not purport to incorporate other documents, unlike the warrants in this case, which referred to sealed documents. Based upon this distinction, the government urges us to reconsider Bartholomew, wherein we stated that if a warrant‘s particularity depends upon an affidavit of probable cause, the affidavit cannot be filed under seal. 221 F.3d at 428-429. Because the warrant application here ultimately referred to the requisite information, the government contends that we should view the misstep here as a “clerical error,” and not a search pursuant to an invalid warrant. Reply Brief for United States 9.
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. See Groh, 540 U.S. at 558 (holding that when a “warrant did not describe the items to be seized at all,” it “was so obviously deficient that we must regard the search as ‘warrantless‘“). Applying that rule, we conclude that the searches here were warrantless within the meaning of the Fourth Amendment and presumptively invalid. See Payton, 445 U.S. at 576.
Second, volumes of substantial authority support our conclusion. The Supreme
Third, and contrary to the govеrnment‘s contentions, we conclude that Groh does not support its position whatsoever. The government attempts to distinguish Groh on the sole ground that the warrant there did not incorporate any documents by reference, whether sealed or not. But the dispositive fact in Groh was not what documents the warrant purported to incorporate; it was that the face of the warrant utterly “failed to identify any of the items” to be seized. 540 U.S. at 554. The Court could not have more clearly stated its view of that failure‘s effect: “The warrant was plainly invalid.” Id. at 557. The Court explained that a constitutional application for a warrant “does not save the warrant from its facial invalidity.” Id. We see no reason to reach a different conclusion here.
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.” Doe, 361 F.3d at 239. Indeed, Groh itself stated that a lack of particularity cannot “be characterized as a mere technical mistake or typographical error.” 540 U.S. at 558. Simply put, there is no such thing as a broad “clerical error” exception to the government‘s Fourth Amendment obligations.
The bottom line is this: in Groh, the Supreme Court held that if an affidavit of probable cause that describes items to be seized is presented to a Magistrate Judge, who authorizes a warrant, but the affidavit is not attached to the warrant and the warrant does not otherwise list “items to be seized,” the warrant is so “plаinly invalid” that a search conducted pursuant to it is “warrantless.” 540 U.S. at 557-558. In Bartholomew, we held that
IV.
Hаving 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 seizеd pursuant to an invalid warrant may not usually be admitted at trial, see Payton, 445 U.S. at 576; see also Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914), “[e]xclusion is not a personal constitutional right, nor is it designed to redress the injury occasioned by an unconstitutional search,” Davis v. United States, — U.S. —, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011). Instead, “[t]he rule‘s sole purpose is to deter future Fourth Amendment violations.” Id. (citing Herring v. United States, 555 U.S. 135, 141 & n. 2, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), United States v. Leon, 468 U.S. 897, 909, 921, n. 22, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)), and Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (“calculated to prevent, not to repair“).
In Davis, the Supreme Court clarified the two prerequisites for exclusion. First, because “the sole purpose of the exclusionary rule is to deter misconduct by law enforcement,” 131 S.Ct. at 2432 (citations omitted), we must determine whether exclusion would have “[r]eal deterrent vаlue,” id. at 2427. Second, because “exclusion exacts a heavy toll on both the judicial system and society at large” by “requir[ing] courts to ignore reliable, trustworthy evidence” and “in many cases ... setting the criminal loose in the community without punishment,” “the deterrence benefits of suppression must outweigh its heavy costs.” Id. (internal citations omitted); see id. at 2436 (Sotomayor, J., concurring) (“[T]he ultimate questions have always been, one, whether exclusion would result in appreciable deterrence and, two, whether the benefits of exclusion outweigh its costs.” (citations omitted)). Accordingly, “[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by the justice system,‘” id. at 2428 (majority opinion) (quoting Herring, 555 U.S. at 144).
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.” Davis, 131 S.Ct. at 2427 (quoting Herring, 555 U.S. at 144). On the other hand, “when police mistakes are the result of negligence ... rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.‘” Herring, 555 U.S. at 147-148 (quoting Leon, 468 U.S. at 907 n. 6). A district court must assess all of the facts and circumstances in
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,” Davis, 131 S.Ct. at 2427 (quotations omitted), the District Court “acknowledge[d]” “that the lеvel of ‘police culpability’ in this case is low.” App. 035. Nevertheless, the Court then concluded the exclusion was required. Indeed, based on its erroneous assumption that a facially invalid warrant automatically triggered a per se application of the exclusionary rule, the District Court reasoned that no further “consideration of Officer Taylor‘s level of responsibility” was necessary. Id.
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. Davis, 131 S.Ct. at 2427 (quoting Herring, 555 U.S. at 144). Merely negligent behavior does not. See Herring, 555 U.S. at 147-148. Wherever “low” might fall on the culpability scale, it does not usually, if ever, refer to grossly negligent behavior. Without a more thorough factual evaluation, though, we cannot conjecture as to “low[‘s]” intended meaning here.
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 United States v. Tracey, 597 F.3d 140 (3d Cir.2010), and a conflation of the similar-but-separate good faith exception and exclusionary rule doctrines. See App. 035 (citing Tracey). In Tracey аnd in subsequent cases we have stated in dicta that the good faith exception will rarely be available in cases in which “the warrant [is] so facially deficient that it fail[s] to particularize the place to be searched or the things to be seized.” Virgin Islands v. John, 654 F.3d 412, 418 (3d Cir.2011) (quoting Tracey, 597 F.3d at 151). But, as “the good-faith exception is a judicially created exception to” the exclusionary rule, Davis, 131 S.Ct. at 2434, although qualifying for the good faith exception may result in admitting evidence, not qualifying for it does not mean that the evidence will be suppressed. Hence, the cоmmonsense acknowledgement that the good faith exception may prove unavailable in a certain set of cases in no way relieves a court of its responsibility to undertake a culpability analysis before applying the exclusionary rule.
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 aрply. 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. See United States v. Master, 614 F.3d 236, 243 (6th Cir.2010) (“While it appears at first blush that suppression might be inappropriate in this case, we will remand to the district court for the purpose of re-examining the facts and balancing the interests as required by Herring.“); United States v. Julius, 610 F.3d 60, 67, 68 (2d Cir.2010) (“[O]n remand, the district court may consider whether the circumstances of this search, considered in their totality, support application of the exclusionary rule under Herring.... Herring requires careful consideration by district courts of whether the goal of deterring violations of the Fourth Amendment outweighs the costs to truth-seeking and law enforcement objectives in each case.“). Accordingly, we will vacate the District Court‘s decision and remand to allow the District Court to make further findings and to perform the required exclusionary rule analysis.
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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.