                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1348

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

JOHN E RIC S IMS,
                                          Defendant-Appellant.


           Appeal from the United States District Court
                 for the Central District of Illinois.
         No. 07-20051—Michael P. McCuskey, Chief Judge.



   A RGUED D ECEMBER 17, 2008—D ECIDED JANUARY 22, 2009




  Before B AUER, P OSNER, and M ANION, Circuit Judges.
   P OSNER, Circuit Judge. The defendant, convicted of
illegal possession of a gun and sentenced to 30 months in
prison, challenges the constitutionality of the search that
discovered the gun. He argues that the warrant that
authorized it failed to specify with particularity the
things the searchers were looking for and therefore vio-
lated the Fourth Amendment. He is right that there was
a violation but wrong that it invalidates his conviction.
2                                              No. 08-1348

   Local police, having reason to believe that there was
stolen property in a house (or its garage, or vehicles on
the property) occupied by the defendant, presented to a
state court judge an application for a search warrant
together with an affidavit in support of the application
and a draft warrant materially identical to the applica-
tion. The affidavit listed the stolen goods believed to be
on the property as “several items which included a black
in color gas grill with the brand name Aussie, a yellow
in color welder with ‘multi-mig’ written on the side, a
cutting torch with Hobart gauges and chrome in color
snap on brand tools with initials GAG engraved.” But the
list was left out of the application and the draft warrant.
The omissions apparently were inadvertent, because
after specifying the places to be searched these docu-
ments state: “Or any other evidence indicative of a
criminal offense of Burglary, Theft or Possession of
Stolen Property.” Probably the drafter of the warrant
intended to list before “or any other evidence . . .” the
items listed in the affidavit. Perhaps not noticing the
omissions, the judge signed the draft warrant and so it
was issued and the search conducted accordingly; and it
was in the course of the search that the illegal gun was
discovered in a bag in the house. Since the bag was large
enough to have contained tools that the police were
looking for, they were entitled to look inside it and seize
any contraband or evidence of crime visible to someone
looking inside. E.g., United States v. Eschweiler, 735 F.2d
435, 440 (7th Cir. 1984).
  The Fourth Amendment states that “the right of the
people to be secure in their persons, houses, papers, and
No. 08-1348                                                 3

effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.” The requirement of partic-
ular description is conventionally explained as being
intended to protect against “general, exploratory rum-
maging in a person’s belongings.” Coolidge v. New Hamp-
shire, 403 U.S. 443, 467 (1971). But it also serves to prevent
circumvention of the requirement of probable cause, see
Maryland v. Garrison, 480 U.S. 79, 84-85 (1987); Andresen
v. Maryland, 427 U.S. 463, 480 (1976), by limiting the
discretion of officers executing a warrant to deter-
mine the permissible scope of their search. Thomas Y.
Davies, “Recovering the Original Fourth Amendment,” 98
Michigan Law Review 547, 576-83 (1999). There might be
probable cause to believe that a house was a drug house
though not to believe that it contained counterfeit
money. But the police might have suspicion short of
probable cause for the latter belief and their main aim
in searching might be to seize counterfeit money
rather than drugs. If probable cause to search for drugs
allowed them to search for counterfeit money as
well—even if they had already found the drugs—they
could conduct that search on the basis of mere suspicion,
without probable cause. Or suppose they had probable
cause to believe that there was a stolen car on the defen-
dant’s property, but in the absence of any specification of
the object of the search took the opportunity to search
every drawer and other receptacle on the property on the
off chance they would find drugs, though they had no
4                                               No. 08-1348

probable cause to believe they would. In both cases, unlike
a case in which officers simply have a dual motive, see
Whren v. United States, 517 U.S. 806, 812-13 (1996), the
requirement of particular description of the things to be
seized in the search would bar a search that was not
based on probable cause—in our examples, the search
for counterfeit money.
   The warrant in this case lacked a particular description
of the things to be seized (if found). Nor did it incorporate
by reference the description in the warrant affidavit;
incorporation by reference would have sufficed. Groh v.
Ramirez, 540 U.S. 551, 557-58 (2008); United States v.
Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999). Yet as an
original matter the defect in the warrant might not con-
demn the search itself. The Fourth Amendment, read
literally at any rate, does not require warrants; it merely
restricts them. It does not forbid searches without war-
rants; it merely forbids unreasonable searches. “There
is nothing in the amendment’s text to suggest that a
warrant is required in order to make a search or seizure
reasonable. All that the amendment says about warrants
is that they must describe with particularity the object
of the search or seizure and must be supported both by
an oath or affirmation and by probable cause, which is
understood, in the case of searches incident to criminal
investigations, to mean probable cause that the search
will turn up contraband or evidence of crime.” United
States v. Garcia, 474 F.3d 994, 996 (7th Cir. 2007). “[T]he
framers of the Fourth Amendment were more fearful
that the warrant would protect the police from the
citizen’s tort suit through operation of the doctrine of
No. 08-1348                                                 5

official immunity than hopeful that the warrant would
protect the citizen against the police, see [Telford] Taylor,
Two Studies in Constitutional Interpretation 23-43 (1969).”
United States v. Mazzone, 782 F.2d 757, 759 (7th Cir. 1986).
See also Payton v. New York, 445 U.S. 573, 607-14 (1980) (dis-
senting opinion); United States v. Limares, 269 F.3d 794, 799
(7th Cir. 2001) (“the fourth amendment does not of its
own force require a warrant for any search. Its text is a
limitation on warrants . . . stemming from dissatisfaction
with the use of warrants by the crown courts during
colonial days”) (emphasis in original); Akhil Reed Amar,
The Constitution and Criminal Procedure: First Principles
3-17, 40-43 (1997).
  Against this, Professor Davies argues that despite its
wording, the only purpose of the Fourth Amendment
was to outlaw general warrants, but that the framers,
reluctant to recognize any discretion in law-enforce-
ment officers, thought that searches of a home would
require a warrant (a specific warrant, that is). Davies,
supra, at 715-24; see also Payton v. New York, 445 U.S. 573,
596 (1980). But whether Davies and the majority in
Payton are right, or Telford and Amar and the dissenters
in Payton, a search for which a valid warrant could not
be obtained, because the police did not have probable
cause to search, or to search in all the places, or search
for all the things, that they wanted to search in or for,
would be unreasonable. The requirements that the consti-
tutional text imposes on warrants define the circum-
stances that make a search unreasonable. It would not do
to allow a judicial officer to issue a search warrant without
6                                                  No. 08-1348

probable cause but a police officer to conduct a search
without either a warrant or probable cause. In the
present case, however, the police conducted exactly the
same search that they would have conducted had the
warrant described with the requisite particularity the
things they were searching for. Nor is it remotely likely
that the state judge would have refused to sign the warrant
had it complied with the Fourth Amendment by listing
those things.
  So just as in United States v. Stefonek, 179 F.3d 1030 (7th
Cir. 1999), a case that differs in no material respect from
this one, the search was reasonable. But we could not
there, and we cannot here, draw the straightforward
conclusion that there was no violation of the Fourth
Amendment. The Supreme Court, on grounds of policy
rather than of text or history—in fact, as we have just
noted, in the teeth of the text and possibly of the history
of the amendment (depending on whether Taylor or
Amar, on the one hand, or Davies on the other, has
the better historical case)—has ruled that, though with
numerous but immaterial exceptions, a search without a
warrant is unconstitutional. (For both the rule and the
exceptions, see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403
(2008).) The policy is that of reducing the number of
unreasonable searches by requiring that a presumably
neutral judicial officer screen police searches. E.g., Johnson
v. United States, 333 U.S. 10, 13-14 (1948) (Jackson, J.).
“[A]nd although the effective neutrality and inde-
pendence of magistrates in ex parte proceedings for the
issuance of search warrants may be doubted, there is a
practical reason for requiring warrants where feasible: it
No. 08-1348                                                7

forces the police to make a record before the search,
rather than allowing them to conduct the search without
prior investigation in the expectation that if the search
is fruitful a rationalization for it will not be difficult to
construct, working backwards.” United States v. Mazzone,
supra, 782 F.2d at 759.
  Even so, it would not follow that in cases such as this, in
which the judicial screening had failed to prevent the
search (although it certainly succeeded in creating a
written record), the fruits of the search should be sup-
pressed at the defendant’s trial. A person whose rights
have been violated by a search can be remitted to a suit
against the police for committing a constitutional tort.
Now that such suits are common and effective, United
States v. Langford, 314 F.3d 892, 895 (7th Cir. 2002), the
exclusionary rule is bound some day to give way to
them. For the rule is too strict: illegally seized evidence
essential to convicting the defendant of a grave crime
might have to be suppressed, and the criminal let go to
continue his career of criminality, even if the harm
inflicted by the illegal search to the interests intended to
be protected by the Fourth Amendment was slight in
comparison to the harm to society of letting the
defendant off scot free.
  Concerned with such anomalies though unwilling as
yet to abrogate the exclusionary rule (although it has no
constitutional basis—it is a doctrine of federal common
law), the Supreme Court has in the name of “inevitable
discovery” created an exception to the rule for cases
like this in which the harm caused by an illegal search to
8                                                  No. 08-1348

the values protected by the Fourth Amendment is not
merely slight in relation to the social benefits of the
search, but zero. It is zero because, as in United States v.
Stefonek, supra, 179 F.3d at 1033-34, had the police
complied with the Fourth Amendment the consequences
for the defendant would have been exactly the same as
they were. The search would have been authorized, would
have taken place, and would have been identical in
scope, both as to places searched and things seized, to
the search that the police did conduct. The defendant
would have been no better off had the warrant complied
with the Fourth Amendment. Cf. United States v. Tejada,
524 F.3d 809, 813 (7th Cir. 2008).
  In Stefonek we considered but rejected the possibility
that we had “overlooked another purpose of the require-
ment of particularity, that of informing the person whose
premises are to be searched of the scope of the search, so
that he . . . can monitor the search while it is being con-
ducted and make sure it stays within bounds.” Id. at 1034.
As we pointed out, nothing in the amendment requires
that the warrant be shown to the person whose premises
are to be searched. As a matter of prudence, police will
show a search warrant to the person whose premises are
to be searched if he questions their authority to conduct
the search. But they do not have to. E.g., United States v.
Grubbs, 547 U.S. 90, 98-99 (2006); Groh v. Ramirez, supra, 540
U.S. at 562 n. 5; United States v. Cazares-Olivas, 515 F.3d 726,
729 (7th Cir. 2008); see Fed. R. Crim. P. 41(f). This is
shown by the fact that they are not required to wait until
someone is at home to conduct the search. E.g., United
States v. Stefonek, supra, 179 F.3d at 1034; United States v.
No. 08-1348                                                9

Chubbuck, 32 F.3d 1458, 1460-61 (10th Cir. 1994). The
Constitution does not give property owners a “license to
engage the police in a debate over the basis for the war-
rant.” United States v. Grubbs, supra, 547 U.S. at 98-99.
   But we must reconsider our analysis in light of the
Supreme Court’s decision in Groh v. Ramirez, supra, decided
after Stefonek though before Grubbs. In the course of
holding that a search pursuant to a warrant that as in
this case failed to describe the things to be seized with
the required particularity even though (as in this case)
the warrant affidavit contained an adequate description,
the Court quoted with approval the statement in an
earlier case that the requirement of particular description
“assures the individual whose property is searched or
seized of the lawful authority of the executing officer, his
need to search, and the limits of his power to search.” 540
U.S. at 561, quoting United States v. Chadwick, 433 U.S. 1, 9
(1977). That may be a benefit of serving a warrant, but, as
we have noted, service is not required. Illinois law
requires that a copy of the warrant be given the person
whose property is searched if he is present (otherwise it
is to be left at the place where the search takes place), 725
ILCS 5/108-6, but state law does not define federal con-
stitutional requirements. Virginia v. Moore, 128 S. Ct. 1598
(2008); United States v. Quintanilla, 218 F.3d 674, 678-79
(7th Cir. 2000).
  Groh was a tort case, moreover, not a criminal case.
There was no question of excluding illegally seized evi-
dence, hence no concern that the sanction for violating
the Fourth Amendment would be disproportionate to the
10                                              No. 08-1348

harm caused by the violation. If the plaintiffs in Groh
could not prove harm, they would get no damages, rather
than escaping punishment for a crime—they were
never charged with having committed a crime. We do not
think that the fact that our defendant might have ob-
tained some slight psychological benefit from being able
to monitor the police search had the police shown him
a warrant that described the things they were looking for
takes this case out of reach of the “inevitable discovery”
doctrine (we might call it the no harm, no foul, doctrine).
As we explained in United States v. Cazares-Olivas, supra,
515 F.3d at 728-29, “permitting people to get away with
crime is too high a price to pay for errors that . . . do not
play any causal role in the seizure (the inevitable-discovery
situation) . . . . Groh was a suit for damages; we doubt that
the Court would have invoked the exclusionary rule when
a description 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 when the search occurred. The inevitable-
discovery doctrine, if nothing else, would have foreclosed
use of the exclusionary rule in Groh.”
                                                  A FFIRMED.




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