Opposition Brief — Baranski v. United States (No. 08-77)

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No. 08-77 - ——

Jn the Supreme Court of the Anited States

KEITH BYRON BARANSKI, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE

Solicitor General

Counsel of Record

MATTHEW W. FRIEDRDICH

Acting Assistant Attorney

General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in affirming the

denial of petitioner’s motion under 28 U.S.C. 2255 rais-

ing the claim that a search of his warehouse violated the

Fourth Amendment because the warrant did not itself

contain a description of the items to be seized but in-

stead incorporated by reference an affidavit containing

such a description, an affidavit that did not accompany

the warrant at the time of the search.

(I)

TABLE OF CONTENTS

Page

I oad 5 va vcdtnah > o0 0k Cad 15040 one eras eee 1

I ee ewer tee Ser rer ee ao a 1

5 6 Cin ose ng kv 0d oe WAAR eRe 1

0 Pee ee err er Tee ere ee re re 6

OT EE OT RO CET ee een re 16

TABLE OF AUTHORITIES

Cases:

Baranski v. Fifteen Unknown Agents of the Bureau

of Alcohol, Tobacco and Firearms:

pe Lf ee * Grime 4

452 F.3d 433 (6th Cir. 2006), cert. denied,

TBF BE SD Seve cderevenioess passim

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) ............ 3

Capellan v. Riley, 975 F.2d 67 (2d Cir. 1992) ............ 8

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........ )

Davis v. United States, 417 U.S. 333 (1974) ............. 8

Deputy v. Taylor, 19 F.3d 1485 (3d Cir.), cert. denied,

ee re EE 5 es oe Ke NRC eke ea ewnne ee 8

Doe v. Groody, 361 F.3d 232 (3d Cir.), cert. denied,

a RIES © fui vin cn He ah eee r idem Sia eewens 14

Groh v. Ramirez, 540 U.S. 551 (2004) ....... 4,6, 10, 11, 12

Hudson v. Michigan, 547 U.S. 586 (2006) .......... 12,13

Maryland v. Garrison, 480 U.S. 79 (1987) .............-. 9

Palmigiano v. Houle, 618 F.2d 877 (1st Cir.),

cert. denied, 449 U.S. 901 (1980) ...................-. 8

(IIT)

Cases—Continued: Page

Rivera Rodriguez v. Beninato, 469 F.3d 1 (1st Cir.

2006), cert. denied, 127 S. Ct. 3004 (2007) ........... 14

Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994),

cert. denied, 513 U.S. 1188 (1995) .................05. 8

Stone v. Powell, 428 U.S. 465 (1976) ................. 5, 7

Swicegood v. Alabama, 577 F.2d 1322 (5th Cir. 1978) ....8

United States v. Baranski, 75 Fed. Appx. 566 (8th

Cir. 2003), cert. denied, 541 U.S. 1011 (2004) ..... 2,4, 7

United States v. Bonner, 808 F.2d 864 (1st Cir. 1986),

cert. denied, 481 U.S. 1006 (1987) .............005. 1]

United States v. Byers, 740 F.2d 1104 (D.C. Cir 1984) .... 9

United States v. Cazares-Olivas, 515 F.3d 726 (7th

Cir. 2008), cert. denied, No. 07-10647 (Oct. 6, 2008) ... 13

United States v. Cook, 997 F.2d 1312 (10th Cir. 1998) ....9

United States v. Dale, 991 F.2d 819 (D.C. Cir.), cert.

denied, 510 U.S. 906, and 510 U.S. 1030 (1993) ....... 1]

United States v. Gahagan, 865 F.2d 1490 (6th Cir.),

cert. Genied, 490 0. Bie (ise «hc vse cc veeccces 11

United States v. Grubbs, 547 U.S. 90 (2006) ............ 12

United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980),

cert. denied, 461 U.S. SAB (CIGEL) ... ww... cee wee 9

United States v. Hector, 474 F.3d 1150 (9th Cir. 2007),

cert. denied, 128 S. Ct. $75 (2008)... ci cece cece 14

United States v. Hurwitz, 459 F.3d 463 (4th Cir.

SE oe hagas ee nace aia ek 6 wii ss kee 14

United States v. Ishmael, 343 F.3d 741 (5th Cir.

2003), cert. denied, 540 U.S. 1204 (2004) ............. 9

United States v. Johnson, 457 U.S. 5387 (1982) ........... 8

Cases—Continued: Page

United States v. Maxwell, 920 F.2d 1028 (D.C. Cir.

ee Ga eee sev cceeees 14

United States v. McGrew, 122 F.3d 847 (9th Cir.

EERE 1 Se er rr 11, 14

United States v. Riccardi, 405 F.3d 852 (10th Cir.),

cert. denied, 546 U.S. 919 (2005) ............... cee. 14

United States v. Tagbering, 985 F.2d 946 (8th Cir.

Gs Sa eric eens ees. sic-esescccoses 11

United States v. Willzamson, 1 F.3d 1134 (10th Cir

a wages Ke wis wee vase ceees 1]

United States ex rel. Maxey v. Morris, 591 F.2d 386

(7th Cir.), cert. denied, 442 U.S. 912 (1979) ........... 8

Willett v. Lockhart, 37 F.3d 1265 (8th Cir. 1994),

cert. denied, 514 U.S. 1052 (1995) ................... 8

Wong Sun v. United States, 371 U.S. 471 (1963) ........ 12

Constitution and statutes:

Rime Qoret, Armed. TV 2... ccc cece cece ees passim

a se keer eee eesrsesseceasseees 2,3

re 3

OS ee Perr Tee ree 8

ra 2, 5, 7, 8,9

Miscellaneous:

5 Wayne R. LaFave, Search and Seizure (3d ed. 1996) ...9

In the Supreme Court of the Anited States

No. 08-77

KEITH BYRON BARANSKI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TC THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 4a-11a)

is reported at 515 F.3d 857.

JURISDICTION

The judgment of the court of appeals (Pet. App. 2a-

3a) was entered on January 16, 2008. A petition for re-

hearing was denied on April 10, 2008 (Pet. App. la). The

petition for a writ of certiorari was filed on July 9, 2008.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Missouri, petitioner

was convicted of conspiring to import machine guns by

submitting false entries on forms for the Bureau of Alco-

(1)

hol, Tobacco, and Firearms (ATF), in violation of 18

U.S.C. 371 and 26 U.S.C. 5861(/). He was sentenced to

60 months of imprisonment, to be followed by three

years of supervised release. The court of appeals af-

firmed, and this Court denied certiorari. United States

v. Baranski, 75 Fed. Appx. 566 (8th Cir. 2003), cert. de-

nied, 541 U.S. 1011 (2004) (Baranski I). Petitioner then

filed a motion for collateral relief under 28 U.S.C. 2255.

The district court denied the motion but granted a cer-

tificate of appealability. The court of appeals affirmed.

Pet. App. 4a-lla.

1. Petitioner was a licensed firearms dealer who im-

ported guns from Eastern European countries and

stored them in a customs warehouse in Louisville, Ken-

tucky, until he could sell them to eligible law-enforce-

ment agencies. ATF agents discovered that petitioner

was using forged letters from a law-enforcement official

in order to sell the guns to other parties. After a six-

month investigation, the ATF applied to a magistrate

judge for a warrant to search petitioner’s warehouse. In

the location on the warrant form for describing the

items to be seizeu, the warrant stated, “See Attached

Affidavit.” An attached affidavit listed the items to be

seized: “about 425” guns owned by petitioner and stored

at the warehouse. The magistrate judge issued the war-

rant, signing both the draft warrant and the affidavit,

but ordered the affidavit to be sealed in order to protect

ATF'’s confidential sources. Pet. App. 5a-6a; Baranski

v. Fifteen Unknown Agents of the Bureau of Alcohol,

Tobacco & Firearms, 452 F.3d 433, 436 (6th Cir. 2006)

(en banc), cert. denied, 127 S. Ct. 1908 (2007) (Baranski

IT).

The next day, ATF agents executed the warrant.

The warehouse’s manager asked to see the warrant and

then asked to see the affidavit. The agents produced the

warrant, informed the manager that the affidavit was

under seal, and explained that they were looking for

guns owned by petitioner and stored at the warehouse.

The manager insisted that the warrant was defective

because it did not describe the items to be seized, but he

permitted the agents into the warehouse and directed

them to the area in which petitioner’s guns were stored.

The agents seized 372 machine guns and 12 crates con-

taining gun accessories. Upon leaving the warehouse,

the agents gave the manager a copy of the search war-

rant and an inventory of the seized items. Pet. App. 6a

n.16; Baranski IT, 452 F.3d at 436-437.

Petitioner brought a civil action against the ATF

agents in the Western District of Kentucky under

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971). He alleged

that the agents had violated his Fourth Amendment

rights because the affidavit listing the items to be seized

did not accompany the warrant at the time of the search.

Baranski I], 452 F.3d at 487. The district court denied

petitioner’s motion to unseal the affidavit and stayed the

action pending the completion of criminal proceedings

against petitioner. /bid.

2. A grand jury in the Eastern District of Missouri

indicted petitioner on a charge of conspiracy to import

machine guns illegally by making false entries on forms

submitted to the ATF, in violation of 18 U.S.C. 371 and

26 U.S.C. 5861(/). After a jury trial, petitioner was con-

victed and sentenced to 60 months of imprisonment, to

be followed by three years of supervised release. The

Eighth Circuit affirmed. The court held that “(t]he war-

rant should not have been suppressed for lack of particu-

larity” because “the warrant referred to a sealed affida-

vit that described the weapons.” Baranski I, 75 Fed.

Appx. at 568. The court further held that, in any event,

any error in admitting the weapons at trial “was harm-

less in view of the other evidence admitted against [peti-

tioner].” Baranski I], 452 F.3d at 437.

Petitioner filed a petition for a writ of certiorari, ar-

guing that Eighth Circuit’s decision conflicted with this

Court’s decision in Groh v. Ramirez, 540 U.S. 551 (2004),

which was issued two months after the affirmance of his

conviction on appeal. This Court denied the petition.

541 U.S. 1011 (2004).

3. After petitioner was convicted, the district court

in the Western District of Kentucky unsealed the war-

rant affidavit and lifted the stay of his Bivens action.

The defendants then moved to dismiss petitioner’s

Fourth Amendment claim on the basis of qualified im-

munity. The district court granted the motion to dis-

miss. A panel of the Sixth Circuit court of appeals re-

versed in relevant part, Baranski v. Fifteen Unknown

Agents of the Bureau of Alcohol, Tobacco & Firearms,

401 F.3d 419 (2005), but, after granting rehearing en

banc, the en banc court of appeals affirmed, Baranski

I], 452 F.3d 433 (2006).

The en banc court held that the search of petitioner’s

warehouse did not violate the Fourth Amendment. The

court reasoned that the warrant was valid, despite the

fact that the warrant itself did not describe with particu-

larity the things to be seized, because it expressly incor-

porated an affidavit that did describe them. Baranski

I], 452 F.3d at 489-440. Petitioner relied on Grok, in

which this Court held that a search of a home violated

the Fourth Amendment because the warrant “failed alto-

gether” to specify the evidence sought. 540 U.S. at 557.

The Sixth Circuit explained that this case was different

from Groh because here, “(the] warrant explicitly incor-

porated the supporting affidavit; the magistrate signed

the affidavit and warrant; and the affidavit described

with particularity the items to be seized.” Baranski /1,

452 F.3d at 440. Accordingly, “this warrant made it

clear that the magistrate understood and cabined the

scope of the search he was authorizing.” /bid. The

court of appeals held in the alternative that, even if the

search did violate the Fourth Amendment, the ATF

agents were entitled to qualified immunity because the

search “did not violate clearly established law.” /d. at

447.

Petitioner filed a petition for a writ of certiorari, ar-

guing that the Sixth Circuit’s decision conflicted with

this Court’s decision in Groh. This Court denied the pe-

tition. 127 S. Ct. 1908 (2007).

4. Petitioner then filed a motion for collateral relief

under 28 U.S.C. 2255 in the United States District Court

for the Eastern District of Missouri. Pet. App. 6a. Re-

lying on Stone v. Powell, 428 U.S. 465 (1976), the district

court dismissed the motion on the ground that peti-

tioner’s Fourth Amendment claim was not cognizable in

a Section 2255 proceeding because it had been raised

and decided on direct appeal. Supp. App. 4a-5a. The

court granted a limited certificate of appealability to

allow the court of appeals to review its decision in light

of Groh. Id. at 8a.

5. The court of appeals affirmed. Pet. App. 4a-1la.

The court disagreed with the district court and con

cluded that petitioner’s Fourth Amendment claim was

cognizable under Section 2255. /d. at 7a-8a. On the

merits, however, the court rejected petitioner’s claim.

/d. at 8a-10a. The court noted that Grok had found the

warrant in that case to be “plainly invalid” because it

“did not describe the items to be seized at all.” 540 U.S.

at 557-558. By contrast, the court observed, this war-

rant expressly incorporated the sealed document de-

scribing the items to be seized. Pet. App. 8a-9a. Thus,

unlike the warrant in Groh, the warrant in this case

“plainly showed that a neutral magistrate had approved

the search with reference to the incorporated affidavit

and had had the opportunity to limit the scope of the

search authorized.” /d. at 9a.

The court of appeals also agreed with the Sixth Cir-

cuit that Groh “had not established a ‘bright-line rule’

that an incorporated affidavit must accompany a war-

rant at the time of the search.” /d. at 10a. The court

went on to observe that, in the absence of any “interven-

ing change in controlling authority,” its earlier determi-

nations on direct review “that the district court did not

err in denying [petitioner’s| motion to suppress since the

agents had acted in good faith and that any error from

admission of the evidence would have been harmless”

required adherence as law of the case. /d. at lla.

ARGUMENT

Petitioner contends (Pet. 7-22) that the decision of

the court of appeals conflicts with this Court’s decision

in Groh v. Ramirez, 540 U.S. 551 (2004). Several proce-

dural bars foreclose petitioner’s attempt to litigate that

claim on collateral review. In addition, the court below

correctly found that the warrant in this case was valid

under the reasoning of Groh because it incorporated by

reference an affidavit that was reviewed and approved

by the magistrate and that particularly described the

items to be seized. Finally, there is no reason to disturb

the court’s holdings on direct appeal that, in any event,

the search was saved by the good-faith exception to the

exclusionary rule, and that any error in admitting the

evidence from the search was harmless. Further review

is not warranted.

1. This is the third time that petitioner has asked

this Court to consider his claim that the search of his

warehouse was unconstitutional under Groh. On both

previous occasions, this Court declined to review the

case. See Baranski 1, 541 U.S. 1011 (2004) (No. 08-

1341); Baranski IT, 1278. Ct. 1908 (2007) (No. 06-612).

Petitioner advances no reason why this Court should

reach a different result here.

2. Notwithstanding the contrary conclusion of the

court below, petitioner’s Fourth Amendment challenge

to his conviction is not cognizable in a proceeding under

28 U.S.C. 2255. In Stone v. Powell, 428 U.S. 465, 494

(1976), this Court held that “where the State has pro-

vided an opportunity for full and fair litigation of a

Fourth Amendment claim, a state prisoner may not be

granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or sei-

zure was introduced at his trial.” The Court reasoned

that federal habeas corpus relief based on the applica-

tion of the exclusionary rule, when the State had already

provided the opportunity for full and fair litigation of the

issue, would make a minimal contribution to the effectu-

ation of Fourth Amendment rights compared with the

substantial costs associated with the exclusion of other-

wise probative evidence. The Court concluded that the

deterrent purpose of the exclusionary rule could be fully

achieved by the risk of suppression of evidence at trial

or the reversal of convictions on direct appeal. /d. at

489-495.

While the Court did not specify that its holding in

Stone also applied to federal prisoners challenging their

convictions under 28 U.S.C. 2255, its rationale applies

equally to Section 2255 motions. This Court has gener-

aliy considered the grounds for relief under Sections

2254 and 2255 to be equivalent. See Davis v. United

States, 417 U.S. 333, 343-344 (1974). And the Court has

explained that that equivalence extends to the treatment

of Fourth Amendment claims, so that, as a result of

Stone, the “only cases” in which defendants may raise

“Fourth Amendment challenges on collateral attack” are

Section 2254 cases “in which the State has failed to pro-

vide a state prisoner with an opportunity for full and fair

litigation of his claim,” as well as “analogous federal

cases under [Section] 2255, and collateral challenges by

state prisoners to their state convictions under postcon-

viction relief statutes that continue to recognize Fourth

Amendment claims.” United States v. Johnson, 457 U.S.

537, 562 n.20 (1982).'

With the exception of the court below, every court of

appeals to consider the question has held that Stone ap-

plies to federal prisoners challenging their convictions

' Even if Groh had affected the correctness of the court of appeals’

decision rejecting petitioner’s Fourth Amendment challenge on direct

appeal (but see pp. 10-14, infra), that would not mean that he had

lacked a full and fair opportunity to litigate it. The test for whether the

rule of Stone applies is whether the movant had an earlier opportunity

to litigate the claim, not whether the habeas court would reach a differ-

ent result than the earlier court. See, e.g., Willett v. Lockhart, 37 F.3d

1265, 1270 (8th Cir. 1994), cert. denied, 514 U.S. 1052 (1995); Stripongs

v. Calderon, 35 F.3d 1308, 1321 (9th Cir. 1994), cert. denied, 513 U.S.

1183 (1995); Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir.), cert. denied,

512 U.S. 1230 (1994); Capellan v. Riley, 975 F.2d 67, 71-72 (2d Cir.

1992); Palmigiano v. Houle, 618 F.2d 877, 882 (1st Cir.), cert. denied,

449 U.S. 901 (1980); United States ex rel. Maxey v. Morris, 591 F.2d

386, 389-390 (7th Cir.), cert. denied, 442 U.S. 912 (1979); Swiceqood v.

Alabama, 577 F.2d 1322, 1324-1325 (5th Cir. 1978).

under Section 2255. See United States v. Ishmael, 343

F.3d 741, 742-743 (5th Cir. 2003), cert. denied, 540 U.S.

1204 (2004); United States v. Cook, 997 F.2d 1312, 1317

(10th Cir. 1993); United States v. Hearst, 638 F.2d 1190,

1196 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981).

See also United States v. Byers, 740 F.2d 1104, 1137 n.90

(D.C. Cir 1984) (Robinson, J., concurring); 5 Wayne R.

LaFave, Search and Seizure § 11.7(g), at 458 (3d ed.

1996). By itself, Stone would provide an independent

ground for affirming the judgment below.

3. In any event, even assuming that petitioner’s

claim is cognizable in a Section 2255 proceeding, the

court below correctly held that Groh did not undercut its

decision on direct appeal affirming the denial of peti-

tioner’s motion to suppress.

a. The Fourth Amendment requires that search war-

rants contain “a ‘particular description’ of the things to

be seized.” Coolidge v. New Hampshire, 403 U.S. 443,

467 (1971). The particularity requirement serves “to

prevent general searches” that “take on the character of

the wide-ranging exploratory searches the Framers in-

tendea to prohibit.” Maryland v. Garrison, 480 U.S. 79,

84 (1987). The warrant in this case satisfied that re-

quirement because it expressly incorporated an affidavit

that particularly described the items to be seized. Bar-

anski II, 452 F.3d at 436. In approving the warrant, the

magistrate judge separately signed both the search war-

rant and the attached affidavit. 7bid. Thus, as the Sixth

Circuit observed, the warrant in this case “made it clear

that the magistrate found that there was probable cause

to support the search” and further “made it clear that

the magistrate understood and cabined the scope of the

search he was authorizing.” /d. at 440.

That the affidavit, which had been sealed, did not

accompany the warrant after the warrant was issued did

not retroactively make the issuance of the warrant in-

valid for purposes.of the Warrant Clause. Nor did that

fact make the search otherwise “unreasonable” under

the Fourth Amendment, where the officers were evi-

dently aware of the items that they had authority to

search for and seize. The agents presented a copy of the

warrant to the manager of the property and orally in-

formed him of the items to be seized, thereby assuring

him that a magistrate had passed on the existence of

probable cause and enabling the manager to monitor the

search. Baranski I], 452 F.3d at 436-437.

b. Contrary to petitioner’s argument (Pet. 10-18),

nothing in the decision below conflicts with Groh. In

Groh, the warrant at issue erroneously listed the place

to be searched as the items to be seized. 540 U.S. at 554.

Although the warrant application did list with particu-

larity the items to be seized, the warrant itself—unlike

the warrant in this case—did not expressly incorporate

that document. /d. at 554-555. The Court held that the

warrant was “plainly invalid” because it “failed altogeth-

er” the Warrant Clause’s requirement that it describe

with particularity the things to be seized. Jd. at 557.

The Court explained that “[t]he fact that the application

adequately described the ‘things to be seized’ does not

save the warrant from its facial invalidity.” /bid.

As petitioner notes (Pet. 11-12), the Court in Groh

did observe that “most Courts of Appeals have held that

a court may construe a warrant with reference to 2 sup-

porting application or affidavit if the warrant uses ap-

propriate words of incorporation, and if the supporting

document accompanies the warrant.” 540 U.S. at 557-

558 (emphasis added). Immediately after citing those

cases, however, the Court noted that “in this case the

warrant did not incorporate other documents by refer-

ence, nor did either the affidavit or the application

(which had been placed under seal) accompany the war-

rant.” Jbid. For that reason, the Court concluded, “we

need not further explore the matter of incorporation.”

Tbid.; see id. at 557 (noting that “[w]e do not say that the

Fourth Amendment prohibits a warrant from cross-ref-

erencing other documents”). The Court therefore did

not hold that the cited cases were correctly decided, and,

more to the point, it did not decide the precise question

presented by this case. As a result, the decision of the

court of appeals in this case does not conflict with this

Court’s decision in Groh.”

* Of the six courts of appeals whose decisions were cited in Groh, on-

ly two—the Ninth and Tenth Circuits—had unconditionally held that

an affidavit may cure an otherwise deficient warrant only when the war-

rant specifically incorporates the affidavit and the affidavit accompanies

the warrant during the search. See United States v. McGrew, 122 F .3d

847, 849-850 (9th Cir. 1997); United States v. Williamson, 1 F.3d 1134,

1136 n.1 (10th Cir. 1993). The remaining four courts of appeals had

held, in decisions other than those cited in Groh, that an affidavit may

cure an otherwise deficient warrant either if the warrant simply

incorporates the affidavit and the executing officers were aware of the

relevant contents of the affidavit, see United States v. Dale, 991 F.2d

819, 846-848 (D.C. Cir.), cert. denied, 510 U.S. 906, and 510 U.S. 1030

(1993); United States v. Bonne, , 808 F.2d 864, 866-867 (1st Cir. 1986),

cert. denied, 481 U.S. 1006 (1987), or if the warrant incorporates the

affidavit and the affidavit is “present” at the scene when the search is

conducted, even if it does not physically “accompany” the copy of the

warrant possessed by the executing officers, see United States v.

Tagbering, 985 F.2d 946, 950 (8th Cir. 1993); United States v.Gahagan,

865 F.2d 1490, 1497-1499 (6th Cir.), cert. denied, 492 U.S. 918 (1989).

While the record in this case established that the magistrate judge

placed the original affidavit under seal at the time he issued the war-

rant, the question whether the agents had a copy of the affidavit with

Moreover, to the extent that Groh suggested that a

warrant unaccompanied by an incorporated affidavit

fails to “assure[] the individual whose property is

searched or seized of the lawful authority of the execut-

ing officer, his need to search, and the limits of power to

search,” 540 U.S. at 561, that line of reasoning has been

substantially undercut by this Court’s more recent deci-

sion in United States v. Grubbs, 547 U.S. 90 (2006). In

Grubbs, the Court held that the Fourth Amendment

does not require service of a warrant before conducting

a search. As the Court noted. the Fourth Amendment

particularity requirement “does not protect an interest

in monitoring searches.” /d. at 99. Rather, the Court

explained, “[t]he Constitution protects property owners

not by giving them license to engage the police in a de-

bate over the basis for the warrant, but by interposing,

ex ante, the ‘deliberate, impartial judgment of a judicial

officer . . . between the citizen and the police.’” /bid.

(quoting Wong Sun v. United States, 371 U.S. 471, 481-

482 (1963)).

_ ¢. Groh is distinguishable from this case for the addi-

tional reason that it was decided in the context of a

Bivens action seeking damages for an unconstitutional

search. Groh thus does not address whether, even if the

absence from the search scene of an incorporated affida-

vit violates the Fourth Amendment, the violation re-

quires application of the exclusionary rule. As this

Court recently explained in Hudson v. Michigan, 547

U.S. 586 (2006), suppression is not an automatic conse-

them when they executed the warrant was not explored at the suppres-

sion hearing. The government represented to the lower courts during

petitioner’s Bivens action in the Sixth Circuit that a copy of the affidavit

was in fact present at the scene (and thus available to agents) at the

time of the search. See Br. in Opp. at 14 n.38, Baranski 1], No. 06-612.

quence of a Fourth Amendment violation, but is appro-

priate only where it would “vindicate the interests pro-

tected by” the relevant constitutional requirement. /d.

at 598. Here, the interests that petitioner asserts (Pet.

17-18) are protected by the presence of the incorporated

affidavit—to provide the property owner notice of the

precise items to be seized and to provide him with writ-

ten assurance that the magistrate judge found probable

cause to search for and seize every item listed in the

affidavit—-have nothing to do with the government’s au-

thority to seize the evidence. See Grubbs, 547 U.S. at

99. That authority is given by a valid warrant, explicitly

incorporating an affidavit listing the items to be seized,

which the magistrate judge issued in this case.*

In addition, the Court in Hudson noted that “the

exclusionary rule has never been applied” except when

its “substantial social costs” are outweighed by its deter-

rent benefits. 547 U.S. at 594. “{T]he value of deter-

rence depends upon the strength of the incentive to com-

mit the forbidden act,” id. at 596, and here, as in Hud-

son, the incentive to disregard a requirement that the

incorporated affidavit accompany the warrant at the

time of the search is very weak. See United States v.

Cazares-Olivas, 515 F.3d 726, 729 (7th Cir. 2008) (voic-

ing “doubt {in light of Hudson] that the Court [in Groh]

would have invoked the exclusionary rule when a de-

scription of the things to be seized, though missing from

the warrant, appeared in an affidavit that was filed with

the court in support of the application and was respected

* Petitioner argues (Pet. 15-16) that the warrant as issued was not

valid because, he asserts, it failed the particularity requirement. But,

as noted above, p. 10, supra, any post-issuance separation of the sealed

affidavit from the warrant did not undermine the validity of the warrant

as issued.

when the search occurred”), cert. denied, No. 07-10647

(Oct. 6, 2008). Even if the search in this case violated

the Fourth Amendment, suppression would not be an

appropriate remedy.

d. Petitioner further contends (Pet. 19-22) that the

decision below conflicts with the decisions of five other

circuits that, in order for a warrant affidavit or applica-

tion to save an otherwise insufficient warrant, it must be

incorporated into and accompany the warrant at the

time of the search. There is no conflict demanding re-

view at this time. Two of the cases relied on by pets-

tioner—Rivera Rodriguez v. Beninato, 469 F.3d 1 (ist

Cir. 2006), cert. denied, 127 S. Ct. 3004 (2007), and Doe

v. Groody, 361 F.3d 232 (3d Cir.), cert. denied, 543 U.S.

873 (2004)—like Groh, were decided in the context of

civil actions seeking damages for alleged unconstitu-

tional searches, and thus had no occasion to consider

whether the absence of an incorporated affidavit at the

search scene requires suppression of evidence in a crimi-

nal case. The three other cases on which petitioner

relies—United States v. Riccardi, 405 F.3d 852 (10th

Cir.), cert. denied, 546 U.S. 919 (2005); United States v.

McGrew, 122 F.3d 847 (9th Cir. 1997); and United States

v. Maxwell, 920 F.2d 1028 (D.C. Cir. 1990)—were de-

cided before Grubbs and Hudson. As explained, those

decisions indicate, first, that the Fourth Amendment

does not require an officer to present a property owner

with a copy of the search warrant before conducting a

search, and, second, that not every deficiency in the exe-

cution of a warrant requires a remedy of suppression.

It is unclear whether those courts of appeals will con-

tinue to apply a rule requiring accompaniment as well as

incorporation in the wake of those decisions or that they

would suppress evidence as a remedy for that violation.

See United States v. Hector, 474 F.3d 1150, 1154-1155

(9th Cir. 2007) (recognizing that its earlier line of cases

requiring service of a warrant before conducting a

search has been undermined by Grubbs and relying on

Hudson in declining to suppress evidence for an alleged

violation in failing to show a warrant to the occupant

before searching), cert. denied, 128 S. Ct. 875 (2008).

Indeed, since Grubbs was decided, the only other

court of appeals to have considered the precise issue

presented here has held—like the Eighth Circuit in this

case and the en banc Sixth Circuit in petitioner’s Bivens

action—that a warrant need only incorporate a support-

ing document and need not be accompanied by that doc-

ument at the time of the search. See United States v.

Hurwitz, 459 F.3d 463, 472 (4th Cir. 2006).

4. Finally, even if there were a Fourth Amendment

violation in this case, the court of appeals correctly re-

lied on its earlier rulings, on direct appeal, that the ATF

agents acted in good-faith reliance on the warrant and

that any error in admitting the evidence was harmless.

Pet. App. lla. This Court declined to consider peti-

tioner’s challenges to those rulings on direct review of

his case, and they provide an independent basis for the

judgment of the court of appeals. Petitioner argues

(Pet. 22-24, 27-31) that the rulings of the court of ap-

peals are erroneous, but those case-specific claims are

not within the scope of the question presented (Pet. i),

and in any event they do not warrant this Court’s re-

view.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.