United States v. Michael Wright

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 14-1558

UNITED STATES OF AMERICA,

v.

MICHAEL WRIGHT,

Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 5-09-cr-00270-001)

District Judge: Honorable Lawrence F. Stengel

_____________

Submitted Under Third Circuit L.A.R. 34.1(a)

on October 21, 2014

Before: AMBRO, FUENTES, and NYGAARD, Circuit

Judges

(Filed: February 6, 2015)

Robert A. Zauzmer, Esq.

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Kishan Nair, Esq.

Office of United States Attorney

504 West Hamilton Street

Suite 3701

Allentown, PA 18101

Attorneys for Appellee

Mark S. Greenberg, Esq.

13 Terrace Road

Plymouth Meeting, PA 19462

Attorney for Appellant

OPINION

FUENTES, Circuit Judge.

We recently confronted the question of whether

suppression is required when a law enforcement officer

obtains a valid search warrant but mistakenly interprets a

judge’s sealing order as prohibiting him from showing the list

of items to be seized to the person whose property is being

searched. See United States v. Franz, 772 F.3d 134 (3d Cir.

2014). This case presents the related question that arises

when, as a result of a sealing order, the list of items to be

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seized is inadvertently omitted from the warrant when it is

executed.

I. Background of the Case

Having gathered significant evidence of Michael

Wright’s ongoing conspiracy to distribute marijuana, the

United States Attorney’s Office for the Eastern District of

Pennsylvania prepared a warrant application for the search of

Wright’s apartment. In the portion of the warrant identifying

the items to be seized, the warrant referred to an attached

affidavit of probable cause prepared by Drug Enforcement

Agency Task Force Agent Jeffrey Taylor. The affidavit

summarized the Government’s knowledge of the conspiracy

and stated that Agent Taylor expected to find further evidence

in Wright’s apartment, including drugs, money, and

documents such as ledgers and telephone lists.

A federal magistrate judge approved the application,

signing both the warrant and the attached affidavit. Before the

warrant was executed, however, the affidavit was removed at

the request of the U.S. Attorney’s Office and sealed in order

to protect the ongoing investigation. Agent Taylor, who was

organizing the raid, received the final warrant but did not

notice that it no longer included a list of items to be seized.

As a result, although the magistrate judge had approved the

list, the list was not present when the warrant was executed.

The search was nevertheless conducted in conformity with

the warrant, and there is no indication that items not listed

were seized.

Once criminal proceedings were brought against

Wright, he filed a motion to suppress the evidence gathered

from his apartment. Pursuant to our decision in Bartholomew

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v. Commonwealth of Pennsylvania, 221 F.3d 425 (3d Cir.

2000), the District Court held that the execution of a warrant

without Agent Taylor’s affidavit violated the Fourth

Amendment’s requirement that warrants “particularly

describ[e] the place to be searched, and the persons or things

to be seized.” U.S. Const. amend. IV. Although the District

Court found that Agent Taylor’s culpability was “low,” it

read the Supreme Court’s decision in United States v. Leon,

468 U.S. 897 (1984), as holding that the good-faith exception

to the exclusionary rule could never excuse reliance on a

facially invalid warrant. Consequently, it ordered the

evidence suppressed.

On appeal, a panel of this Court vacated and

remanded. The panel acknowledged that the good-faith

exception was inapplicable under Leon because the warrant

was facially invalid. It nevertheless held that the Supreme

Court’s more recent decision in Herring v. United States, 555

U.S. 135 (2009), required an additional analytical step before

the exclusionary rule could be applied. Specifically, the

District Court could not suppress the evidence unless it

evaluated Agent Taylor’s culpability and found that his

conduct was at least grossly negligent.

The District Court denied the motion to suppress on

remand, finding that Taylor’s failure to review the warrant

before executing it was a “simple mistake” that conferred no

benefit on the Government and amounted at most to

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negligence. Wright was subsequently convicted of drug

offenses by a jury, and he filed the instant appeal.1

II. Discussion

The parties agree that evidence was seized from

Wright’s apartment in violation of the Fourth Amendment.

Thus, the sole question before us is whether the exclusionary

rule requires its suppression. We hold that it does not.

A. The Exclusionary Rule

Although the exclusionary rule was designed to deter

Fourth Amendment violations, the heavy social costs of

suppressing evidence counsel against its indiscriminate

application. See Davis v. United States, 131 S. Ct. 2419, 2426

(2011). Accordingly, in Leon, the Supreme Court created a

“good-faith exception” to the suppression remedy for

“evidence obtained in objectively reasonable reliance on a

subsequently invalidated search warrant.” 468 U.S. at 913,

922. The Leon Court also observed, however, that “depending

on the circumstances of the particular case, a warrant may be

so facially deficient—i.e., in failing to particularize the place

1

The District Court had subject-matter jurisdiction under 18

U.S.C. § 3231. We have jurisdiction to review the District

Court’s judgment of conviction pursuant to 28 U.S.C.

§ 1291. “We review factual determinations made on a motion

to suppress for clear error and legal determinations de novo.”

United States v. Harrison, 689 F.3d 301, 306 (3d Cir. 2012),

cert. denied, 133 S. Ct. 1616 (2013).

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to be searched or the things to be seized—that the executing

officers cannot reasonably presume it to be valid.” Id. at 923.

The Supreme Court refined the analysis in Herring:

“To trigger the exclusionary rule, police conduct must be

sufficiently deliberate that exclusion can meaningfully deter

it, and sufficiently culpable that such deterrence is worth the

price paid by the justice system.” 555 U.S. at 144. As a result,

“the exclusionary rule serves to deter deliberate, reckless, or

grossly negligent conduct, or in some circumstances recurring

or systemic negligence.” Id. Simple, isolated negligence is

insufficient to justify suppression. See Davis, 131 S. Ct. at

2427-28.

Our Court has synthesized these cases by explaining

that when a warrant is “so facially deficient that it fail[s] to

particularize . . . the things to be seized,” the officers involved

are usually at least “grossly negligent” and cannot avail

themselves of the good-faith exception. United States v.

Tracey, 597 F.3d 140, 151 (3d Cir. 2010). We recently

clarified in United States v. Franz, however, that this is not a

categorical rule. 772 F.3d at 144-47. “[I]n 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.” Id. at 147. Thus, even if a

warrant is facially invalid, an assessment of the officers’

culpability and the value of deterrence may counsel against

suppression.

The federal agent who conducted the search in Franz,

Agent Nardinger, believed that he could not give Franz the

list of items to be seized because that list had been sealed. His

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failure to make the list available violated the Fourth

Amendment’s particularity requirement. The Government

argued, however, that the good-faith exception applied

because Nardinger had made a simple mistake that was not

sufficiently culpable or susceptible to deterrence. This Court

agreed and affirmed the denial of Franz’s motion to suppress.

We listed a number of factors in support of our

conclusion. First, Nardinger “sought and obtained a valid

warrant and acted in consultation with federal prosecutors.”

Id. Second, Nardinger had no intention of concealing the

information that was sealed, as he verbally “explained to

Franz what items the warrant authorized him to search for and

seize.” Id. at 148. Third, there was no evidence that the

constitutional violation in question was “recurring or

systematic,” rather than an isolated mistake by an

inexperienced agent. Id. Finally, the magistrate judge’s order

sealing the supporting documents to the warrant contained

unclear language that Nardinger interpreted as prohibiting

him from giving Franz the list of items to be seized. Id. at

148-49. Accordingly, we could not say that Nardinger acted

deliberately, recklessly, or with gross negligence. To the

contrary, his “conduct was, on the whole, objectively

reasonable.” Id. at 147.

B. Wright’s Motion to Suppress

As in Franz, our analysis here focuses on the

culpability of the agents and prosecutors who failed to ensure

that a list of items to be seized was attached to the warrant

that was executed. Wright does not argue that anyone

deliberately or recklessly violated his Fourth Amendment

rights. He argues instead that Agent Taylor was grossly

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negligent and, consequently, that deterrence is worth the price

of suppression.

Franz is instructive but not directly on point. In both

Franz and this case, the agents obtained valid warrants in

consultation with federal prosecutors and seized only those

items authorized by their warrants. In Franz, however, Agent

Nardinger was inexperienced, and he understood the

magistrate judge’s sealing order as prohibiting him from

giving Franz the list of items to be seized. We cannot say the

same about Agent Taylor, who has extensive experience with

search warrants and did not interpret the magistrate judge’s

sealing order as excusing compliance with the particularity

requirement.

This is significant for two reasons. First, an “officer’s

knowledge and experience” bears on whether it was

objectively reasonable for that officer to believe that the

search was legal. See Herring, 555 U.S. at 145. Second, the

Supreme Court has held that the exclusionary rule does not

apply when an officer “reasonably relie[s] on the Magistrate’s

assurance that the warrant contain[s] an adequate description

of the things to be seized and [i]s therefore valid.” Groh v.

Ramirez, 540 U.S. 551, 564 (2004) (describing Massachusetts

v. Sheppard, 468 U.S. 981 (1984)). “Even though Nardinger

was mistaken, his reliance on the sealing order mitigate[d] the

blame that necessarily follow[ed] his error.” Franz, 772 F.3d

at 149. As a result, Agent Taylor is arguably more culpable

than Agent Nardinger.

The agents’ relative culpability does not, however,

answer the question of whether Agent Taylor’s conduct meets

the standard for gross negligence. “‘Gross negligence’ is a

nebulous term that is defined in a multitude of ways,

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depending on the legal context and the jurisdiction.” 57A Am.

Jur. 2d Negligence § 227. This Court has explained that gross

negligence has “been described as the want of even scant care

and the failure to exercise even that care which a careless

person would use.” Fialkowski v. Greenwich Home for

Children, Inc., 921 F.2d 459, 462 (3d Cir. 1990) (internal

quotation marks omitted). By contrast, ordinary negligence

“means no more than a failure to measure up to the conduct

of a reasonable person.” Id. (internal quotation marks

omitted).

Whether Taylor was “grossly” negligent or merely

negligent in the “ordinary” sense is difficult to assess if we

consult only the hornbook formulations of these terms. Did

Taylor fail to exercise “reasonable care,” or did his failure to

read the warrant before executing it demonstrate the absence

of even “scant care”? Fundamentally, the precautions we

would expect an officer to take depend largely on what might

happen if he failed to take them. The probable consequences

of the failure to exercise care are certainly relevant to the

value of deterrence. In addition, “the value of deterrence

depends upon the strength of the incentive to commit the

forbidden act.” Hudson v. Michigan, 547 U.S. 586, 596

(2006). Accordingly, it makes sense to consider (1) the extent

to which the violation in this case undermined the purposes of

the Fourth Amendment and (2) what the Government gained

from the violation.

The requirement that warrants particularly describe the

things to be seized has a number of purposes. First, it

provides “written assurance that the Magistrate actually found

probable cause to search for, and to seize, every item

mentioned.” Groh, 540 U.S. at 560; see also Tracey, 597 F.3d

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at 146. Second, it prevents “general searches” by confining

the discretion of officers and authorizing them to seize only

particular items. Tracey, 597 F.3d at 146. Third, it “informs

the subject of the search ‘of the lawful authority of the

executing officer, his need to search, and the limits of his

power to search.’” Id. (quoting Groh, 540 U.S. at 561).

The violation at issue here did not undermine the first

two purposes of the particularity requirement. This was no

general search, as Agent Taylor oversaw it and “assured that

the [other] officers acted in accordance with the warrant’s

limits.” United States v. Wright, Criminal No. 09-270-ALL,

2013 WL 3090304, at *9 (E.D. Pa. June 20, 2013). Wright

does not argue that these limits were exceeded in any way.

Furthermore, we can be confident that the magistrate

judge found probable cause to search for and seize every item

listed in Agent Taylor’s affidavit. When the warrant was

approved, the affidavit was attached and expressly

incorporated by reference in the space for identifying the

items to be seized. Indeed, in addition to signing the warrant,

the magistrate signed the affidavit, albeit for the purpose of

certifying that Agent Taylor had sworn to it. See United

States v. Allen, 625 F.3d 830, 839 (5th Cir. 2010) (noting that

“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”).

Wright’s reliance on Groh, 540 U.S. 551, and Virgin

Islands v. John, 654 F.3d 412 (3d Cir. 2011), is misplaced for

this reason. In Groh, the Supreme Court denied qualified

immunity to officers who relied on a warrant that failed to

particularly describe the items to be seized. The portion of the

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warrant that called for a description of the items to be seized

instead described the house to be searched. Although an

attached affidavit contained a list of items to be seized, it was

not expressly incorporated into the warrant itself.

Consequently, “[t]he mere fact that the Magistrate issued

[the] warrant d[id] not necessarily establish that he agreed

that the scope of the search should be as broad as the affiant’s

request.” Id. at 561. In John, the agent’s affidavit was “‘so

lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonable.’” 654 F.3d at 418

(quoting Tracey, 597 F.3d at 151). Here, by contrast, there is

no reason to believe that any aspect of the search was

unsupported by probable cause.

The failure to retain the list of items to be seized did

undercut the third purpose of the particularity requirement, as

Wright was not informed of the limits of the agents’ power to

search. Here, too, Franz presents a more compelling case for

application of the good-faith exception: Agent Nardinger

verbally explained to Franz what items the warrant authorized

him to search for and seize. See Franz, 772 F.3d at 148.

The importance of this distinction is, however,

questionable. The Supreme Court has observed that “neither

the Fourth Amendment nor Federal Rule of Criminal

Procedure 41” requires “the executing officer [to] present the

property owner with a copy of the warrant before conducting

his search.” United States v. Grubbs, 547 U.S. 90, 98-99

(2006). The Fourth Amendment “protects property owners

not by giving them license to engage the police in a debate

over the basis for the warrant, but by interposing, [before the

search], the ‘deliberate, impartial judgment of a judicial

officer . . . between the citizen and the police,’ and by

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providing, [after the search], a right to suppress evidence

improperly obtained and a cause of action for damages.” Id.

at 99 (second alteration in original) (quoting Wong Sun v.

United States, 371 U.S. 471, 481-482 (1963)). It is therefore

unclear how Wright was harmed by his inability to peruse the

list of items the Government intended to seize at the time of

the raid on his apartment.

It follows that the Government gained nothing from

the Fourth Amendment violation. Even if the list of items to

be seized had been present at the scene, the agents would

have collected precisely the same evidence, and Wright

would have been unable to stop them. The violation in this

case had no impact on the evidence that could be deployed

against Wright at trial.

Wright is undoubtedly correct to point out that

suppression would incentivize the Government to carefully

scrutinize each warrant before it is executed. The purpose of

imposing tort liability for negligence is, after all, to encourage

individuals to exercise reasonable care. In the context of

suppression, however, the Supreme Court has unequivocally

held that deterring isolated negligence is not worth the social

cost of excluded evidence. See Herring, 555 U.S. at 144 n.4,

147-48. Only if mistakes of this nature recur with some

frequency will a criminal defendant be in a position to argue

that the calculus has changed. See id. at 144.

III. Conclusion

For the foregoing reasons, we conclude that the

District Court was correct to hold that Agent Taylor was not

sufficiently culpable for the costs of suppression to outweigh

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its benefits. The District Court’s denial of Wright’s motion to

suppress will be affirmed.

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