                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-3518
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                  RANDALL WRIGHT,
                                              Appellant
                                    ____________

                      On Appeal from United States District Court
                         for the Eastern District of Pennsylvania
                            (E.D. Pa. No. 5-09-cr-00270-002)
                     District Judge: Honorable Lawrence F. Stengel
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 5, 2015

              Before: FISHER, JORDAN and SHWARTZ, Circuit Judges.

                                 (Filed: August 20, 2015)
                                      ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.

       Randall Wright appeals the District Court’s denial of his suppression motion

concerning physical evidence seized in the course of executing a search warrant at his

apartment. We will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       In January 2009, Wright and his brother, who lived a block apart, were suspected

of distributing marijuana. Jeffrey Taylor, a DEA Agent, presented an affidavit of

probable cause to search the Wright brothers’ residences on January 27, 2009. The

affidavit reported that a confidential source working with the DEA had reason to believe

the Wrights were high-volume marijuana dealers, and that the confidential source had

corroborated this report by making two controlled purchases of marijuana from Wright.

       The U.S. Attorney’s Office prepared the search warrant application and a

proposed search warrant. In the section to identify the location to be searched, the warrant

listed the relevant address and stated “See Attachment A.” The attachment described each

brother’s residence. In the section to identify the items to be seized, there was the phrase

“See Attached Affidavit of Probable Cause.” Both Attachment A and the affidavit of

probable cause, which contained a list of items that could be seized, were attached to the

                                              2
warrant application when it was provided to the Magistrate Judge, who approved the

applications and signed the warrants 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 execution of the warrant, received

the final warrant but, presuming that it included an attachment that listed the items to be

seized as usual, did not notice that it no longer included a list of items to be seized. He

has stated that that he did not notice that the U.S. Attorney’s Office failed to include an

attachment listing the items to be seized, and that he assumed that the documents that

were given to him were the documents he needed. He further asserted that he was certain,

in his mind, that the warrants were valid. He also testified that he was familiar with the

Fourth Amendment’s particularity requirement, as he had been in law enforcement for

sixteen years and had performed multiple searches and prepared numerous affidavits of

probable cause by the time the search was conducted. Due to the mistake described

above, however, the list of items to be seized was not present when the warrant was

executed. The search was nevertheless conducted in conformity with the warrant, and

there is no indication that any items not listed were seized.

       Randall Wright and his brother were arrested at that time and charged with various

drug and firearm offenses. The District Court granted a motion to suppress physical

evidence seized in the course of the search because the warrant did not meet the Fourth

                                              3
Amendment’s particularity requirement. The Government appealed this ruling, and we

vacated and remanded for findings of fact and further consideration of whether the

exclusionary rule applied. On remand, the District Court denied the motion to suppress

on the basis of the law enforcement officer’s low level of culpability. Wright was

subsequently convicted of all four counts against him and sentenced to, among other

things, 90 months’ incarceration. He appeals the denial of the suppression motion.1

                                              II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291. We review the District Court’s denial of a motion to suppress for

clear error as to the underlying factual findings, and exercise plenary review of the

District Court’s application of the law to those facts.2

                                             III.

                                              A.

       Wright argues that the District Court erred in denying his suppression motion

because it improperly evaluated Agent Taylor’s culpability. According to Wright, the

District Court arrived at this conclusion by misperceiving a distinction between the good

faith exception and the exclusionary rule. Wright argues that this error led the District



       1
         Wright’s brother and co-defendant, Michael, was also convicted. He appealed the
District Court’s denial of his motion to suppress, which this Court affirmed. United States
v. Wright, 777 F.3d 635 (3d Cir. 2015).
       2
         United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
                                             4
Court, when assessing Taylor’s culpability, to ignore the missing list of items to be seized

and Taylor’s failure to review the warrant.

       It is well-established that the exclusionary rule does not necessarily apply every

time a Fourth Amendment violation occurs.3 The exclusionary rule is not an individual

right, but rather is applicable only where it results in appreciable deterrence.4

Furthermore, the benefits of such deterrence must outweigh the costs.5 Only police

behavior that can be characterized as deliberate, reckless, or grossly negligent merits

application of the exclusionary rule; merely negligent behavior does not.6

       As the District Court correctly found, there is no evidence to support the allegation

that Taylor’s conduct was anything more than negligent. The warrants included the items

to be seized and were therefore valid at the time they were approved by the Magistrate

Judge. Taylor did not notice that the list of items was not attached to the warrants. There

is no evidence to suggest that he was consciously aware of this error. Moreover, he

appears to be familiar with the particularity requirement, having served as an officer for

nearly sixteen years at the time of the search in question, and had been responsible for

hundreds of state search warrants and numerous federal search warrants. In this case, he

assured that the participating officers would search only for those items for which he had

obtained judicial approval. Therefore, his mistake in not noticing that the warrant did not

       3
         Herring v. United States, 555 U.S. 135, 140 (2009).
       4
         Id. at 141.
       5
         Id.
       6
         Davis v. United States, 131 S. Ct. 2419, 2427 (2011).
                                              5
include the list of items to be seized is at most negligent, as it arguably failed to measure

up to the conduct of a reasonable person, and nothing more.

       Wright further argues in his brief that the District Court relied on Taylor’s

subjective state of mind in assessing his culpability, rather than determining whether his

conduct was objectively reasonable. This argument is unfounded. In fact, the District

Court described in detail the applicable standard of care and correctly found that Taylor’s

conduct fit squarely within the definition of negligence. We agree with the District Court

that Taylor’s conduct was far from being grossly negligent; he did not know of the risk

that the warrant was, in the condition he received it, defective nor did he act with the

requisite level of carelessness.7

       Furthermore, Wright does not present any viable argument as to why we should

consider Taylor’s conduct anything but negligent. And he does not address the deterrent

impact of the exclusionary rule in this case, ignoring the Supreme Court’s firm

determination that deterrence must “be weighed against the substantial social costs




       7
         See United States v. Franz, 772 F.3d 134 (3d Cir. 2014). In that case, the
Government prepared the correct attachments to the warrant, but the agent mistakenly
believed that he was not allowed to serve the attachments with the warrant. He instead
gave the defendant an oral summary of the scope of the warrant. We held that this
mistake was an instance of isolated negligence, even though the agent should have known
that he was required to present the attachments. Therefore, we held that the exclusionary
rule did not apply. Similarly, in our case, Taylor’s mistake in not attaching the list of
items to be seized to the warrant is an instance of isolated negligence that had no impact
on the approval or execution of the search.
                                              6
exacted by the exclusionary rule.”8 Sealing the affidavit in this case did not benefit the

Government in any manner in the execution of the warrant. Under the circumstances, the

presence of the affidavit at the scene of the searches would not have changed the searches

that occurred; the officers would have obtained exactly the same evidence. There is

simply not enough, if any, deterrent benefit to be had by suppressing the evidence under

these circumstances.

       Accordingly, the District Court did not err in denying Wright’s suppression

motion on this basis.

                                                  B.

       Wright presents various arguments regarding other mistakes he alleges Taylor

made, each of which supposedly contributes to Taylor’s culpability. He contends that

there was an error regarding the length of the relationship with the confidential source in

the warrant affidavit, that Taylor misstated whether he personally received information

from the confidential source, that Taylor misrepresented the confidential source’s

information, that Taylor misrepresented whether he had personally overheard a phone

conversation, that the warrant was somewhat overbroad, and that the warrant was not

sufficiently particular. Besides the obvious fact that many of these arguments were not

made below and are therefore forfeited on appeal, we find each of them to be meritless. A

close look at Taylor’s testimony, as well as the face of the warrant itself and the list of


       8
           Herring, 555 U.S. at 144 n.4 (internal quotation marks and citations omitted).
                                               7
items to be seized and places to be searched, indicates that Taylor did not act wrongfully

and the search warrant met all of the relevant legal requirements.

       For example, with regard to the length of Taylor’s relationship with the

confidential source, Taylor credibly testified that this was the result of a typographical

error. In addition, Taylor testified that he had relied on the confidential source’s

information as conveyed to him by other officers, in addition to his own interactions with

the confidential source. Further, the affidavit clearly dispels the notion that Taylor

misstated or misrepresented the facts about the investigation that Wright presses upon us.

Finally, we note without deciding that even if Wright were correct as to each of these

allegations, it likely would not impact the core determination of Taylor’s culpability, the

ultimate issue in deciding this suppression motion.

       To the extent that these arguments were presented to the District Court, it did not

err in finding them to be without merit.

                                             IV.

       For the reasons set forth above, we will affirm the judgment of the District Court.




                                              8
