                                    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




                                2
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




                                3
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




                                4
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).




                                 5
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




                                  6
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




                                7
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,




                                 8
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




                                 9
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




                                10
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




                                 11
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




                                 12
its benefits. The District Court’s denial of Wright’s motion to
suppress will be affirmed.




                                13
