                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                            File Name: 06a0225p.06

                        UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                    X
 (03-5582), and PARS INTERNATIONAL CORPORATION -
 KEITH B. BARANSKI, d/b/a MAGUA INDUSTRIES
                                                     -
                                                     -
 (03-5614),
                             Plaintiffs-Appellants, -
                                                                        Nos. 03-5582/5614

                                                     ,
                                                      >
            v.                                       -
                                                     -
                                                     -
 ALCOHOL, TOBACCO AND FIREARMS, BRIAN DIXON, -
 FIFTEEN UNKNOWN AGENTS OF THE BUREAU OF

                                                     -
                                                     -
 MICHAEL R. JOHNSON, DOUGLAS R. DAWSON,
                                                     -
 MARK S. JAMES, KARL L. STANKOVIC and WILLIAM
 J. HOOVER,                                          -
                            Defendants-Appellees. N

                             Appeal from the United States District Court
                          for the Western District of Kentucky at Louisville.
                       No. 01-00398—John G. Heyburn II, Chief District Judge.
                                        Argued: December 7, 2005
                                     Decided and Filed: July 3, 2006
 Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,
  CLAY, GILMAN, GIBBONS, SUTTON, COOK, McKEAGUE,    GRIFFIN, and NEILSON,
                                 Circuit Judges.*
                                            _________________
                                                 COUNSEL
ARGUED: Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh, Louisville, Kentucky, for
Appellants. Howard S. Scher, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh,
Louisville, Kentucky, for Appellants. Howard S. Scher, Barbara L. Herwig, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
         SUTTON, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER,
GIBBONS, COOK, McKEAGUE, and GRIFFIN, JJ., joined and in which GILMAN, J., joined as
to Part II.B. GILMAN, J. (p. 14), delivered a separate opinion concurring in the judgment, in which


       *
        The Honorable John M. Rogers, Circuit Judge, took no part in the consideration or decision of the case.
           The Honorable Susan Bieke Neilson, who was a member of the panel, died on January 25, 2006.


                                                       1
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DAUGHTREY, J., joined. CLAY, J. (pp. 15-27), delivered a separate dissenting opinion in which
MARTIN, MOORE, and COLE, JJ., joined and in which GILMAN, J., joined as to Part II.A.
                                       _________________
                                           OPINION
                                       _________________
        SUTTON, Circuit Judge. The Fourth Amendment provides in part that “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.” In this case, several agents of the
United States Bureau of Alcohol, Tobacco and Firearms (BATF) obtained a search warrant that
satisfied the particularity requirements of the Fourth Amendment at the time the magistrate issued
the warrant. But by the time the agents conducted the search, a supporting affidavit that was cross-
referenced in the warrant and that particularly described the things to be seized had been placed
under seal and thus was not present during the search.
        In this money-damages action filed against the agents under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), Keith Baranski and Pars International Corporation contend that the
agents’ search of a warehouse owned by Pars and seizure of weapons owned by Baranski violated
their Fourth Amendment rights. Because the warrant described the items to be seized when the
magistrate “issue[d]” it, the warrant satisfied the particularity requirements of the Fourth
Amendment. And because the agents conducted the search in a reasonable manner, they did not
otherwise violate the Fourth Amendment. We therefore affirm the judgment of the district court in
favor of the agents.
                                                 I.
        In September 1999, Keith Baranski, a licensed firearms dealer, began importing machine
guns from Eastern European countries. United States v. Baranski, 75 Fed. App’x 566, 567 (8th Cir.
2003). He imported the guns through a bonded customs warehouse owned by Pars and located in
Louisville, Kentucky, where federal law required Baranski to keep the guns until he could sell them
to eligible law enforcement departments.
        Instead of selling the guns to eligible buyers, however, Baranski obtained forged letters of
interest from a police chief located in Farber, Missouri, so that he could remove the weapons from
the warehouse and could sell them illegally. BATF agent Michael Johnson uncovered the scheme
when he found documents in a Missouri gun dealer’s shop that linked Baranski to the dealer and
when he learned that one of Baranski’s letters of interest was forged, id. at 567.
        On April 10, 2001, Johnson applied for a search warrant from a magistrate judge in
Louisville, Kentucky, to allow him to search for and seize “about 425” weapons still being held by
Baranski at the Pars warehouse. JA 120. As part of the warrant application, Johnson prepared an
affidavit explaining Baranski’s scheme, detailing the probable cause for the search, identifying the
bonded section of the warehouse as the place to be searched and identifying the machine guns as the
items to be seized. In the location on the search warrant for describing the things to be seized, the
warrant did not separately list those items but said “See Attached Affidavit,” which described the
things to be seized. JA 91.
       That same day, the magistrate judge approved the warrant. In doing so, he separately signed
both the search warrant and the attached affidavit, then sealed the affidavit to protect the BATF’s
confidential sources. D. Ct. Op. at 2.
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        On April 11, 2001, Johnson led approximately 20 BATF agents to the Pars warehouse to
execute the warrant. Upon reaching the warehouse, the agents were met by Saeid Shafizadeh, an
attorney for Pars, who asked to see the warrant. After reading the warrant, Shafizadeh asked to see
the affidavit, at which point the officers told him that it was under seal. One agent then told
Shafizadeh that they were looking for firearms owned by Baranski (or by his company, Magua
Industries) located in the bonded section of the warehouse. Shafizadeh complained that the search
was illegal because the warrant itself failed to describe with particularity what the agents could
seize, but nonetheless cooperated with the agents. At Shafizadeh’s direction, several United States
Customs agents, who had recently inventoried the warehouse, escorted the agents to the basement
of the building where the bonded warehouse was located. Once in the bonded warehouse, the agents
seized 372 machine guns and 12 crates of firearm accessories belonging to Baranski. Id. Upon
leaving the warehouse, the agents left an inventory of the seized items, id., and a copy of the search
warrant with Shafizadeh, id.
        On July 5, 2001, Baranski and Pars filed this money-damages action in the United States
District Court for the Western District of Kentucky. As pertinent here, they (1) brought a Bivens
claim against Johnson and several named and unnamed agents, contending that the agents had
violated their Fourth Amendment rights and (2) separately moved to unseal the affidavit referenced
in the search warrant. On March 22, 2002, the district court denied plaintiffs’ motion to unseal the
affidavit and stayed the Bivens action pending the completion of the criminal investigation of
Baranski.
        On July 3, 2002, a grand jury based in the Eastern District of Missouri indicted Baranski for
making “a false entry on any application, return, or record required by [the firearm importation
laws], knowing such entry to be false.” 26 U.S.C. § 5861(l). The indictment also sought criminal
forfeiture of the guns and accessories seized in the April 11 search. Baranski moved to suppress the
machine guns and accessories on Fourth Amendment grounds. The district court denied the motion.
United States v. Baranski, No. 4:02-CR-361, slip op. at *4–5 (E.D. Mo. Nov. 1, 2002). On
November 18, 2002, a jury found Baranski guilty of violating § 5861(l), and the court sentenced him
to 60 months in prison. Baranski, 75 Fed. App’x at 568. Three months later, on February 27, 2003,
the district court required Baranski to forfeit the weapons and accessories.
        The Eighth Circuit affirmed. As to the suppression ruling, the court concluded that probable
cause supported the warrant and that “[t]he warrant should not have been suppressed for lack of
particularity. Although the warrant did not set out the property to be seized, the warrant referred to
a sealed affidavit that described the weapons.” Baranski, 75 Fed. App’x at 568. Any error in
denying the motion to suppress, the court added, was harmless in view of the other evidence
admitted against Baranski. Id. The court also upheld Baranski’s conviction and sentence as well
as the forfeiture of his property. Id. at 569.
        After Baranski’s conviction, the United States District Court for the Western District of
Kentucky lifted the stay on Baranski’s Bivens claim and unsealed agent Johnson’s affidavit. On
March 14, 2003, the district court granted the agents’ claim of qualified immunity, holding that the
search did not violate the Fourth Amendment and, alternatively, that the search did not violate
clearly established Fourth Amendment law. D. Ct. Op. at 5–6.
        On March 14, 2005, a panel of this court reversed the district court’s grant of qualified
immunity. Relying on the Supreme Court’s intervening decision in Groh v. Ramirez, 540 U.S. 551
(2004), the panel concluded that the warrant was facially deficient because the affidavit referenced
in the warrant and describing the items to be seized was under seal and was not attached to the
warrant when the search was conducted. Baranski v. Fifteen Unknown Agents, 401 F.3d 419, 429
(6th Cir. 2005). In the absence of the affidavit, the panel concluded that the search was a warrantless
one, that no exigent circumstances justified a warrantless search and that the agents had violated the
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 claimants’ clearly established rights. Id. at 432–33. On August 5, 2005, the full court vacated the
 panel’s decision and granted rehearing en banc.
                                                    II.
        In Bivens, the Supreme Court held that individuals could “recover money damages for any
injuries [they have] suffered as a result of [a federal agent’s] violation of the [Constitution].” 403
U.S. at 397. As with § 1983 actions against state and local officials, the Court has held that a
claimant seeking relief under Bivens must overcome the federal official’s qualified immunity.
Saucier v. Katz, 533 U.S. 194 (2001). To overcome that immunity, claimants must show (1) that the
agents violated their constitutional rights and (2) that the constitutional right at issue is “sufficiently
clear that a reasonable official would understand that what he is doing violates that right.” Id. at 202
(quotations omitted); see Flaskamp v. Dearborn Pub. Schs., 385 F.3d 935, 940–41 (6th Cir. 2004).
                                                    A.
        The Fourth Amendment says:
        [1] The right of the people to be secure in their persons, houses, papers, and effects,
        against unreasonable searches and seizures, shall not be violated, and [2] 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.
U.S. Const. amend. IV. The first clause of the Amendment, the Reasonableness Clause, provides an
overriding check on criminal investigations by the government, prohibiting all “unreasonable
searches and seizures.” See Soldal v. Cook County, 506 U.S. 56, 63 (1992); Go-Bart Importing Co.
v. United States, 282 U.S. 344, 357 (1931). The second clause, the Warrant Clause, explains the
process for obtaining a warrant to authorize a search. See Maryland v. Garrison, 480 U.S. 79, 84–85
(1987); United States v. Leon, 468 U.S. 897, 914 (1984). The two clauses do not stand alone. A
search that satisfies the Warrant Clause will generally, but not invariably, satisfy the Reasonableness
Clause. See Richards v. Wisconsin, 520 U.S. 385, 395 (1997) (noting that despite the issuance of a
warrant, “the reasonableness of the officers’ decision . . . must be evaluated as of the time [of the
search]”). And a search of a residence or building without a warrant is “presumptively
unreasonable,” Payton v. New York, 445 U.S. 573, 586 (1980), but will not invariably violate the
Reasonableness Clause. See id. at 587 (“exigent circumstances” or consent may excuse the necessity
of a warrant); Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989) (“[N]either
a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an
indispensable component of reasonableness in every circumstance.”). This case raises several
questions about the two clauses and their relationship to each other.
        First: were the agents required to obtain a warrant before conducting this search? The parties
agree, as do we, that the Warrant Clause applies to this search and that neither the exigent-
circumstances exception, consent nor any other exception to the clause excused the officers from
having to obtain a warrant before conducting this search. See Marshall v. Barlow’s, Inc., 436 U.S.
307, 311 (1978) (“The Warrant Clause of the Fourth Amendment protects commercial buildings as
well as private homes.”).
          Second: when the magistrate approved this warrant, did it comply with the Warrant Clause
even though the warrant itself did not describe with particularity the items to be seized but expressly
incorporated an affidavit that did describe them? The parties do not dispute that: (1) the application
for a warrant supplied by agent Johnson established “probable cause” that a crime had been
committed and that evidence of that crime likely would be found at the place to be searched, U.S.
Const. amend. IV; (2) agent Johnson “supported” the warrant application by “Oath or affirmation,”
id.; (3) the warrant “particularly describ[ed] the place to be searched”—namely, the Pars Warehouse,
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id.; and (4) “a neutral judicial officer”—here, a magistrate—legitimately approved the warrant,
Steagald v. United States, 451 U.S. 204, 212 (1981).
        Nor have the claimants shown that the agents failed to comply with the last requirement of
the Warrant Clause—that the search warrant approved by the magistrate “particularly
describ[e] . . . the persons or things to be seized.” U.S. Const. amend IV. The officers presented two
documents to the magistrate: a one-page “Search Warrant” and a ten-page “Application and
Affidavit for Search Warrant.” JA 115, 116. The one-page “Search Warrant” was a form document
filled out by agent Johnson that contained blank spaces for the magistrate (1) to approve and sign the
warrant, (2) to state the date and time when the magistrate approved the warrant and (3) to limit the
time within which the agents had authority to execute the warrant. JA 115. At the location on the
form for identifying the items to be seized, agent Johnson referred to an attached affidavit (“See
Attached Affidavit”), which identified the items that the agents sought permission to seize. Id. On
appeal, no one disputes that the affidavit specifically described the items that the agents sought to
find and seize. And no one disputes that agent Johnson presented both the warrant and the affidavit
to the magistrate, as he independently signed each of them.
        No doubt, “[t]he fact that the application adequately described the ‘things to be seized’ does
not save the warrant” from the risk of facial invalidity because “[t]he Fourth Amendment by its terms
requires particularity in the warrant, not in the supporting documents.” Groh, 540 U.S. at 557. But,
as Groh explained, “We do not say that the Fourth Amendment forbids a warrant from cross-
referencing other documents.” Id. And “[i]ndeed,” as Groh further recognized, “most Courts of
Appeals have held that a court may construe a warrant with reference to a supporting application or
affidavit if the warrant uses appropriate words of incorporation, and if the supporting document
accompanies the warrant.” Id. at 557–58.
         What doomed the warrant in Groh was not the existence of a supporting affidavit that
particularly described the items to be seized, but the failure of the warrant to cross-reference the
affidavit at all. “Although the application particularly described the place to be searched and the
contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any
of the items that petitioner intended to seize.” Id. at 554. Rather, “[i]n the portion of the form that
called for a description of the ‘person or property’ to be seized, petitioner typed a description of
respondents’ two-story blue house rather than the alleged stockpile of firearms.” Id. And “[t]he
warrant did not incorporate by reference the itemized list contained in the application.” Id. at
554–55. Because the warrant at the time of issuance did not describe with particularity the items to
be seized but instead referred to a “single dwelling residence two story in height which is blue in
color” as the “concealed . . . property” to be seized, id. at 554 n.2, the warrant on its face failed to
comply with the Warrant Clause. See Wayne R. LaFave, Search and Seizure § 4.6(a), at 619 (4th ed.
2004) (noting that Groh “covers . . . only” the situation where the warrant “‘did not describe the items
to be seized at all’”) (quoting Groh, 540 U.S. at 558).
        No equivalent problem occurred here. This warrant explicitly incorporated the supporting
affidavit; the magistrate signed the affidavit and warrant; and the affidavit described with
particularity the items to be seized. Rather than generally (and unintelligibly) authorizing the seizure
of a two-story blue house, Groh, 540 U.S. at 554, this warrant authorized the seizure of 425 machine
guns. Rather than leaving reviewing courts in doubt “whether the Magistrate was aware of the scope
of the search he was authorizing,” id. at 561 n.4, this warrant made it clear that the magistrate
understood and cabined the scope of the search he was authorizing. And rather than leaving
reviewing courts in doubt whether the magistrate provided “written assurance that [he] actually found
probable cause to search for, and to seize, every item mentioned in the affidavit,” id. at 560, this
warrant and affidavit (and the magistrate’s signature on both of them) made it clear that the
magistrate found that there was probable cause to support the search.
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        Consistent with Groh, all of the courts of appeals (save the Federal Circuit) have permitted
warrants to cross-reference supporting affidavits and to satisfy the particularity requirement through
an incorporated and attached document—at least when it comes to the validity of the warrant at the
time of issuance. See United States v. Riccardi, 405 F.3d 852, 863 n.1 (10th Cir. 2005); United States
v. Miggins, 302 F.3d 384, 395 (6th Cir. 2002); United States v. Beaumont, 972 F.2d 553, 561 (5th Cir.
1992); United States v. Jones, 54 F.3d 1285, 1290 (7th Cir. 1995); United States v. Bianco, 998 F.2d
1112, 1116–17 (2d Cir. 1993); United States v. Towne, 997 F.2d 537, 544 (9th Cir. 1993); United
States v. Washington, 852 F.2d 803, 805 (4th Cir. 1988); United States v. Vaughn, 830 F.2d 1185,
1186 (D.C. Cir. 1987); United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982); United States v.
Wuagneux, 683 F.2d 1343, 1351 n.6 (11th Cir. 1982); United States v. Klein, 565 F.2d 183, 186 n.3
(1st Cir. 1977); United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976). We stand by this
view today.
        Third: even if the warrant satisfied the Warrant Clause at the time of issuance, did the
ensuing search become warrantless, and therefore “presumptively unreasonable,” Payton, 445 U.S.
at 586, due to the manner in which the agents conducted the search? We think not.
         The Warrant Clause contains four textual requirements, each of which places restrictions on
the issuance of a warrant. “[N]o Warrants shall issue,” it says, “but upon [1] probable cause,
[2] supported by Oath or affirmation, and [3] particularly describing the place to be searched, and
[4] the persons or things to be seized.” U.S. Const. amend. IV (emphasis added). By their terms,
each of these requirements must be satisfied upon the “issu[ance]” of the warrant, and nothing about
the text of the clause suggests that a warrant valid upon issuance may become invalid upon execution
when the scope and timing of the search is conducted in accordance with the terms of the warrant.
        Nor do the historical purposes of the clause suggest otherwise. The chief purpose of the
particularity requirement was to prevent general searches by requiring a neutral judicial officer to
cabin the scope of the search to those areas and items for which there exists probable cause that a
crime has been committed. See Stanford v. Texas, 379 U.S. 476, 481 (1965) (outlining the history
of “officers acting under the unbridled authority of a general warrant” and noting the need for
independent approval of warrants by magistrates); see also Muehler v. Mena, 125 S. Ct. 1465, 1469
(2005) (“[T]he presence of a warrant assures that a neutral magistrate has determined that probable
cause exists . . . .”); Marron v. United States, 275 U.S. 192, 196 (1927) (“The requirement that
warrants shall particularly describe the things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a warrant describing another.”).
        The “purpose of the particularity requirement,” it is true, is not confined to the “prevention
of general searches.” Groh, 540 U.S. at 561. “A particular warrant also ‘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.’” Id. (quoting United States v. Chadwick, 433 U.S. 1,
9 (1977)). When the magistrate approved this warrant, however, it contained these assurances, as it
restricted the items to be seized to weapons owned by Baranski. Cf. United States v. Grubbs, 126 S.
Ct. 1494, 1501 (2006) (noting that “‘the requirement of particular description does not protect an
interest in monitoring searches’”) (quoting United States v. Stefonek, 179 F.3d 1030, 1034 (7th Cir.
1999)).
        Consistent with the language of the Warrant Clause and the historical purposes behind it, a
search conducted in accordance with a valid warrant does not become warrantless, and therefore
“presumptively unreasonable,” due to the manner in which the officers conducted the search. As the
Court has “[r]ecogniz[ed],” “the specificity required by the [Warrant Clause of the] Fourth
Amendment does not generally extend to the means by which warrants are executed.” Dalia v.
United States, 441 U.S. 238, 257 (1979); see Grubbs, 126 S. Ct. at 1500–01 (noting that the “words
of the Fourth Amendment” do not “‘suggest[] that, in addition to the [requirements set forth in the
 Nos. 03-5582/5614        Baranski et al. v. Fifteen Unknown ATF Agents et al.                    Page 7


text], search warrants also must include a specification of the precise manner in which they are to be
executed’”) (quoting Dalia, 441 U.S. at 255) (brackets supplied by Grubbs); see also United States
v. Basham, 268 F.3d 1199, 1204 (10th Cir. 2001) (“[T]he question of whether the warrant itself is
valid” “is an entirely different matter” from the more general Fourth Amendment reasonableness
inquiry) (internal quotation marks omitted).
         In contending that the agents conducted a warrantless search in this instance, Baranski and
Pars target three alleged shortcomings: the agents did not hand Pars’ attorney a copy of the affidavit
when he asked for it at the outset of the search; the agents did not bring the affidavit with them when
they conducted the search; and the agents did not leave a copy of the affidavit with the warrant after
the search. Groh, they claim, supports all three requirements and, most importantly, makes a search
that fails to comply with them a warrantless, and thus “presumptively unreasonable,” search. We do
not agree.
        The warrant in Groh, as shown, did not satisfy the particularity requirements of the Warrant
Clause because it did not incorporate the affidavit that accurately described the items to be seized.
Without something on the face of the warrant indicating the particulars of the items to be seized or
incorporating a document that described those particulars, the Court reasoned that it could not “know
whether the Magistrate was aware of the scope of the search he was authorizing.” Groh, 540 U.S.
at 561 n.4. Because the warrant “did not describe the items to be seized at all,” the Court concluded
that “the warrant was so obviously deficient that we must regard the search as ‘warrantless’ within
the meaning of our case law.” Id. at 558. No such problem infected this warrant.
        Baranski and Pars persist that Groh is more than just a case about satisfying the Warrant
Clause at the time of issuance through an incorporated affidavit. As they read the decision, it
establishes an incorporate-and-produce and an incorporate-and-accompany requirement with respect
to supporting affidavits: Not only must the warrant expressly incorporate the attached affidavit,
which happened here, but the affidavit also (1) must be given to an occupant who requests it at the
outset of the search, (2) must accompany the agents during the search and (3) must be left at the scene
of the search—all three of which did not happen here.
        Groh, as an initial answer, provides scant support for holding that the failure to produce a
warrant at the outset of a search makes the search a warrantless one. The Court acknowledged that
the Fourth Amendment does not compel officers to present a warrant before a search. Id. at 562 n.5
(“[N]either the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure requires
the executing officer to serve the warrant on the owner before commencing the search.”). And the
Court disclaimed resolving whether officers must produce a warrant, to say nothing of a supporting
affidavit, when the occupant requests it at the outset of the search. See id. (“Whether it would be
unreasonable to refuse a request to furnish the warrant at the outset of the search when, as in this
case, an occupant of the premises is present and poses no threat to the officers’ safe and effective
performance of their mission, is a question that this case does not present.”). Even at that, the Court
left open only the possibility that it would be “unreasonable” to decline such a request, not that the
search would become warrantless if the agents declined such a request.
        In the aftermath of the Court’s most recent decision in this area, United States v. Grubbs, 126
S. Ct. 1494 (2006), the possibility that the Warrant Clause requires officers to produce a copy of the
warrant (and any affidavit) at the outset of the search seems even less plausible. One question
presented by Grubbs was whether officers must list the “triggering condition” in an anticipatory
warrant in order to permit the owner of the property to “polic[e] the officers’ conduct.” 126 S. Ct.
at 1501 (quotation omitted). In rejecting that argument, the Court reasoned that “[t]his argument
assumes that the executing officer must present the property owner with a copy of the warrant before
conducting his search.” Id. Yet there is no such requirement, the Court observed, and “‘[t]he absence
of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until
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the search has ended, is . . . evidence that the requirement of particular description does not protect
an interest in monitoring searches.’” Id. (ellipses supplied by Grubbs) (quoting Stefonek, 179 F.3d
at 1034).
       Nor, at any rate, would such a rigid rule lend itself to sensible application. Aside from the
oddity of having the constitutionality of a search turn on the serendipity of whether the occupants
happen to be present when the officers arrive, there doubtless will be times when officers could not
reasonably be expected to comply with such a requirement. In carrying out a search, officers need
not cooperate with uncooperative property owners or those who threaten to put the search at risk.
See Wilson v. Arkansas, 514 U.S. 927, 936 (1995); see also United States v. Banks, 540 U.S. 31, 38
(2003). While the decision of officers not to present an incorporated affidavit to the occupant upon
request may be a relevant factor in determining the reasonableness of a search, it does not make a
warrant-supported search a warrantless one.
        Groh contains some language in support of plaintiffs’ second argument—that an incorporated
affidavit must accompany the warrant at the time of the search. See 540 U.S. at 558 (“But in this case
the warrant did not incorporate other documents by reference, nor did either the affidavit or the
application (which had been placed under seal) accompany the warrant.”); id. at 560 (“But unless the
particular items described in the affidavit are also set forth in the warrant itself (or at least
incorporated by reference, and the affidavit present at the search), there can be no written assurance
that the Magistrate actually found probable cause to search for, and to seize, every item mentioned
in the affidavit.”).
        Read in context, however, these passages do not establish the bright-line rule that Baranski
and Pars advocate. As we have shown, Groh turns on the facial invalidity of the warrant, not the
manner in which the officers conducted the search. Any doubt about the holding of Groh is removed
when one reads the second part of the decision. There, in determining whether the officers had
violated the claimants’ clearly established constitutional rights, the Court indicated that the
constitutional violation at issue was the facial insufficiency of the warrant, not the failure to
incorporate the affidavit and bring it during the search. See id. at 563 (“Given that the particularity
requirement is set forth in the text of the Constitution, no reasonable officer could believe that a
warrant that plainly did not comply with that requirement was valid.”); id. at 564 (“[E]ven a cursory
reading of the warrant in this case—perhaps just a simple glance—would have revealed a glaring
deficiency that any reasonable police officer would have known was constitutionally fatal.”); id.
(“[A]bsent consent or exigency, a warrantless search of the home is presumptively
unconstitutional.”).
        What, then, should a lower court make of Groh’s reference to an incorporated affidavit being
“present” at the search? One possibility is that the Court’s reference to the absence of incorporation
and to the absence of an accompanying affidavit was necessary to resolve the facial-invalidity
problem at hand. In other words, the reasoning of Groh (though perhaps not the result) might well
have been different if the facially defective warrant had been attached to an affidavit signed by the
magistrate that clearly corrected the omission and that accompanied the warrant during the search.
The reference to the absence of any attached affidavit thus ensured that the Court was not directly
resolving that issue.
        Another possibility is that the Court was suggesting that officers generally should bring an
incorporated affidavit (or an authenticated summary of the items to be seized) with them during the
search and that the failure to do so may be a factor in determining whether the search was reasonable,
two points with which we agree. If, say, a search involved otherwise fungible property that contained
discrete identifying markers (e.g., currency identified by serial number) and if only an incorporated
affidavit described those markers, the absence of the affidavit on the scene could render the search
unreasonable. Cf. Jones, 54 F.3d at 1292. But that does not establish that the absence of an
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incorporated affidavit during a search makes the search a presumptively unreasonable one in all
settings, no matter whether the property owner was there, no matter how readily identifiable the
subject of the search. The salient point is that Groh did not establish a one-size-fits-all requirement
that affidavits must accompany all searches to prevent a lawfully authorized search from becoming
a warrantless one.
        Neither can we accept plaintiffs’ last contention—that the Constitution demands that agents
leave incorporated affidavits (or authenticated summaries of them) at the scene of the search on pain
of the search being treated as warrantless. In some settings, such an unyielding requirement would
make little sense. How, for example, would officers execute a warrant for a wiretap? The
Constitution does not require officers to leave a copy of the warrant next to every phone upon which
a bug has been placed or next to every phone that has been wiretapped. See Dalia, 441 U.S. at 248
(holding that the Fourth Amendment does not require notice of the execution of warrants that depend
on covert action to be successful). At the same time that Groh acknowledged this reality, see 540
U.S. at 562 n.5, it never said that the failure to leave an incorporated affidavit (or authenticated
summary) at the scene of the search renders the search presumptively unreasonable.
       Rule 41(f) of the Federal Rules of Criminal Procedure also fails to supply any traction for this
argument. See Fed. R. Crim. P. 41(f)(3)(A) (indicating that an officer must “give a copy of the
warrant and a receipt for the property taken to the person from whom, or from whose premises, the
property was taken”). For one, the warrant and inventory were left with Shafizadeh after the search,
and plaintiffs have not identified any case law establishing that the failure to leave a sealed affidavit
with the warrant violates Rule 41(f). For another, even a violation of the Federal Rules by itself
would not establish a constitutional violation, which is what plaintiffs must establish in order to
obtain money damages in this Bivens action. See Bivens, 403 U.S. at 397.
       In the end, Groh does not alter the traditional assumption “that the specificity required by the
[Warrant Clause of the] Fourth Amendment does not generally extend to the means by which
warrants are executed.” Dalia, 441 U.S. at 257. In contrast to presumptively fatal failures to comply
with the Warrant Clause’s particularity requirement, the question here is whether the agents acted
reasonably in conducting the search under the totality of the circumstances. The latter inquiry does
not submit to an across-the-board requirement, and we see no indication in Groh or in any other
decision that the Court meant to establish one. To say that a warrant satisfies the Warrant Clause
upon issuance, however, by no means establishes that a search satisfies the Reasonableness Clause
upon execution, which prompts the last question presented.
      Fourth: even if the agents satisfied the Warrant Clause, did they nonetheless violate the
Reasonableness Clause when they conducted the search? We conclude that they did not.
        When a search requires a warrant, the failure to satisfy the Warrant Clause makes the search
“presumptively,” if not per se, “unreasonable.” Payton, 445 U.S. at 586; see Katz v. United States,
389 U.S. 347, 357 (1967). The opposite, however, is neither presumptively nor absolutely true. Even
when officers have complied with the Warrant Clause in obtaining authorization for a search, that
does not insulate the search from challenge. While a warrant may circumscribe an officer’s authority,
that does not mean the officer adhered to that limitation and does not mean that what started as a
particularized search did not become a general one. To satisfy the Reasonableness Clause, officers
not only must obtain a valid warrant but they also must conduct the search in a reasonable manner.
See Dalia, 441 U.S. at 257 (“[I]t is generally left to the discretion of the executing officers to
determine the details of how best to proceed with the performance of a search authorized by
warrant—subject of course to the general Fourth Amendment protection ‘against unreasonable
searches and seizures.’”) (footnote omitted). “The general touchstone of reasonableness which
governs Fourth Amendment analysis governs the method of execution of the warrant.” United States
v. Ramirez, 523 U.S. 65, 71 (1998) (citation omitted).
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        Illustrating the point: in establishing that officers generally must alert homeowners to their
presence before executing a search warrant, the Court has noted that “an officer’s unannounced entry
into a home might be unreasonable under the Fourth Amendment” even though the search was
supported by a valid search warrant. Wilson, 514 U.S. at 934; see Banks, 540 U.S. at 36 (same);
Richards, 520 U.S. at 387 (same). This limitation on the execution of a valid search warrant extends
beyond the setting of the Court’s knock-and-announce rulings, and we see no reason why it would
not extend here. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) (holding that where a judge
accompanies police officers on a search to broaden the scope of the warrant as the search progresses,
the search is unreasonable despite an initially valid warrant); see also United States v. Tucker, 313
F.3d 1259, 1265 (10th Cir. 2002) (noting that under certain circumstances a nighttime search may
be unreasonable despite the issuance of a valid warrant).
        In answering the fundamental inquiry of whether this search was reasonable, we of course
look at “the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 (1996). When agent
Johnson and the other agents arrived at the scene, they had a valid search warrant, which they gave
to Shafizadeh upon arriving at the warehouse and upon asking to enter it. The face of the warrant
showed that an independent judicial officer had approved the search of the bonded section of the
warehouse. When Shafizadeh asked to see a copy of the incorporated affidavit, agent Johnson, who
wrote and signed the affidavit, explained that it was under seal but then proceeded to tell him orally
what the warrant and affidavit authorized them to seize, namely 425 machine guns owned by
Baranski and located in the customs bonded portion of the warehouse. Cf. Groh, 540 U.S. at 563
(reasoning that the officers orally explained to the property owner only that they were looking for
“‘an explosive device in a box,’” which was “little better than no guidance at all”); id. at 562
(declining to resolve whether the presence of the affiant to explain the scope of the search may
provide “all of the notice that a proper warrant would have accorded”).
        There was nothing unduly complex about the object of the search that would have prevented
agent Johnson from remembering precisely what he had authority to search for and to seize. Cf.
Jones, 54 F.3d at 1292; United States v. Stefonek, 179 F.3d 1030, 1034–35 (7th Cir. 1999) (noting
that the warrant may prove a useful tool to the executing officers in ensuring that their search
remained within the scope approved by the magistrate and concluding that these considerations were
useful for determining the reasonableness of a search but did not make them constitutionally
required). And no suggestion has been raised that producing the affidavit was necessary to defuse
a potential “breach[] of the peace.” Stefonek, 179 F.3d at 1035.
        The record also shows that once Shafizadeh agreed to let the agents into the warehouse, the
agents conducted the search in a reasonable manner. The day before the search, agent Johnson met
with the other agents and laid out a plan for executing the warrant, which included a description of
the guns to be seized, a map of the warehouse, the specific location within the warehouse where the
guns would be seized, the identity of Shafizadeh as the appropriate warehouse contact and other
information relevant to the search. On the day of the search, agent Johnson helped to direct the
officers in seizing Baranski’s machine guns. See United States v. Dale, 991 F.2d 819, 848 (D.C. Cir.
1993) (noting that the presence of the agent “who prepared the affidavit and obtained the warrant”
to “over[see] the warrant’s execution and guide[] the participating agents” “sufficiently limited the
discretion of the executing agents”).
        The agents seized no more than was authorized by the warrant—Baranski’s machine guns and
associated crates of accessories—and searched no more of the warehouse than was necessary to seize
these weapons. When the search was complete, the agents left a copy of the warrant and a complete
inventory of items seized, both of which provided Baranski and Pars all of the information they
needed to attempt to unseal or partly unseal the affidavit. By all accounts, the agents conducted the
search consistently with the constitutional guidelines set out in Supreme Court precedent and made
efforts both to circumscribe their search to the approved scope of the warrant and to diminish the
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likelihood of conflict at the scene. Cf. Frisby v. United States, 79 F.3d 29, 32 (6th Cir. 1996) (“Here,
plaintiff was not prejudiced by the agents’ failure to furnish him with Attachment A prior to the
search. Agents conducted the search in accordance with the warrant and seized only those items
enumerated in Attachment A. Further, agents provided plaintiff with an inventory of seized property
prior to leaving his premises and subsequently provided him with a copy of Attachment A. Finally,
plaintiff’s legal remedies were in no way affected by the unintentional failure to serve him with a
copy of Attachment A prior to the search.”); Dale, 991 F.2d at 848 (per curiam, including then-Judge
Ruth Bader Ginsburg) (“Agent Shintani, who prepared the affidavit and obtained the warrant, was
present at the search, oversaw the warrant’s execution and guided the participating agents in seizing
documents to conform the search to her understanding of the warrant’s requirements. While it is not
altogether clear that the affidavit accompanied the warrant at the search, we are satisfied that the
precautions taken by the government sufficiently limited the discretion of the executing agents.”).
        Although it is true that the agents did not supply a written document explaining what they
were authorized to seize, they orally told the owner’s agent what they had permission to seize and
left him with ample information to obtain the affidavit or an authenticated summary of it. Indeed,
while Baranski and Pars filed a motion to unseal the affidavit on July 5, 2001, which was eventually
granted, they never sought in the interim to obtain an authenticated summary of the affidavit
itemizing the property that could be seized—undermining any claim that they were prejudiced by the
method of the agents’ search.
        This approach, moreover, is consistent with our own decisions. See Frisby, 79 F.3d at 31–32
(concluding that where the affiant is at the scene, the warrant is validly approved and the search is
confined to the approved corners of the warrant, the search is valid despite the absence of the
affidavit); United States v. Gahagan, 865 F.2d 1490, 1497 (6th Cir. 1989) (concluding that where the
warrant is valid, the search is conducted in accordance with the warrant and the affiant is there to
answer questions and direct his fellow officers, the search is valid despite the absence of the
affidavit); cf. Dale, 991 F.2d at 847–48 (concluding that the availability of the affiant at the scene of
the search to answer the questions of both the property owners and the executing officers was
sufficient to excuse the absence of the affidavit during the search).
        Doubtless, the agents would have been wiser to bring a written summary of the items to be
seized (presumably signed by the magistrate) or to list the items to be seized in the warrant itself.
There seems to be little doubt (and none has been offered by the United States) that agents who
choose to rely on an incorporated affidavit typically have good reason and ample means to avoid
complaints like this one. But the question is whether the Fourth Amendment demands these things,
even when the purposes of doing them have been satisfied and even when the failure to do them has
not prejudiced the property owners. On this record and under these circumstances, we hold that no
constitutional violation occurred.
                                                   B.
         But even if that were not the case, even if the search violated the Fourth Amendment, it did
not violate “clearly established” law. Saucier, 533 U.S. at 201; see Brosseau v. Haugen, 543 U.S.
194, 199–201 (2004) (holding that qualified immunity is appropriate unless either a precedent
“squarely governs” the outcome of the case or the case is so “obvious” that “general
tests . . . . ‘clearly establish’ the answer, even without a body of relevant case law”). A right is
“clearly established,” the Supreme Court has said, when it is no longer among the “hazy” area of
constitutional issues that might be “reasonably misapprehend[ed]” by a law enforcement officer at
the scene. Brosseau, 543 U.S. at 198.
        One indicator that this alleged Fourth Amendment right, at a minimum, remained in a “hazy”
area of constitutional meaning that law enforcement agents might “reasonably misapprehend” is the
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fact that the Eighth Circuit (on plaintiff’s theory) apparently “misapprehend[ed]” this area in
assessing a suppression motion arising from this precise search. In Baranski’s direct criminal appeal,
a panel composed of Judges Melloy, R. Arnold and Fagg concluded in an unpublished per curiam
opinion that “[t]he warrant should not have been suppressed for lack of particularity” under the Leon
good-faith doctrine. United States v. Baranski, 75 Fed. App’x 566, 568 (8th Cir. 2003). When a
sister court of appeals concludes on the exact facts presented to us that government agents acted in
good faith in executing this warrant, it seems fair to say that the issue at a minimum involves a
“hazy” area of constitutional law, one that we should be reluctant to tell agents they were delinquent
in failing to appreciate. See Groh, 540 U.S. at 565 n.8 (noting that the Leon good-faith inquiry and
the qualified-immunity inquiry are one and the “same.”).
        Even aside from this mirror-image precedent from another circuit, the prevailing law in this
circuit would have led reasonable agents to believe that their conduct was legal at the time they
conducted the search. In Frisby v. United States, 79 F.3d 29 (6th Cir. 1996), the government
inadvertently failed, at the time of the search, to include an attached affidavit with the warrant that
referenced it. Yet the agents provided an inventory, took only what they should have taken and
subsequently provided the defendant with a copy of the attached affidavit. No Fourth Amendment
violation occurred on these facts, we held. 79 F.3d at 32. In United States v. Gahagan, 865 F.2d
1490 (6th Cir. 1989), we upheld a search where the warrant did not correctly describe the place to
be searched but contained an incorporated affidavit that did describe the location. Id. at 1497. Even
though the affidavit was left behind in the police car during the search, rather than attached to the
warrant, the court upheld the search. Id.
        In an unpublished opinion decided after the search at issue in this case, we concluded that
where the warrant referred the reader to “attachment B” in the description of things to be seized, but
the police failed to bring the attachment with them at the time of the search, the search was still valid.
See United States v. Pritchett, 40 Fed. App’x 901, 907 (6th Cir. 2002). As here, the attachment had
a sufficient description of the objects at issue but was not with the agents when they conducted their
search. And, as here, the attachment was appended to the warrant application at the time of issuance
and was subsequently placed under seal. The court held that because the affiant led the search, the
agents orally communicated to the occupant what they were looking for before they performed their
search and the agents provided him with a receipt afterwards, “[t]he Fourth Amendment’s
requirements were satisfied.” Id.
         In addition to our circuit and the Eighth Circuit, other appellate courts have rejected similar
claims either because they did not state a constitutional violation or because they did not defeat a
Leon good-faith defense. See Mazuz v. Maryland, 442 F.3d 217, 229 (4th Cir. 2006) (holding that
the fact that the officer “did not carry the warrant with him during the actual raid” was not
unreasonable because “it is undisputed that [the officer] knew at all times that the warrant authorized
him to enter room 5110”); United States v. Jones, 54 F.3d 1285, 1292 (7th Cir. 1995) (holding that
the fact that the affidavit was not at the scene of the search did not violate the Fourth Amendment
because “the officer in charge of conducting the search . . . had in his possession the serial numbers
of the currency listed in the affidavit, . . . he limited the search to those items described in the warrant,
and . . . he made a return to the magistrate that conformed to the warrant and affidavit”) (internal
quotation omitted); United States v. Dale, 991 F.2d 819, 848 (D.C. Cir. 1993) (“While it is not
altogether clear that the affidavit accompanied the warrant at the search, we are satisfied that the
precautions taken by the government sufficiently limited the discretion of the executing agents,”
including the precaution that the search “was executed by the affiant pursuant to a specific plan”);
Colorado v. Staton, 924 P.2d 127, 132 (Colo. 1996) (holding that even where an affidavit is necessary
to establish the particularity of the warrant “the execution of the search warrant under the supervision
and control of the officer who is the affiant obviates the necessity for the affidavit to accompany the
warrant when it is executed”); cf. United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999)
(holding that where the affidavit describing the items to be seized was not with the officers at the time
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of the search, evidence should not be excluded under Leon because the search “conformed to the
particular description in the affidavit of the things to be seized, . . . . [a]mong the agents who
executed the search were the very agents who had prepared the application for the warrant . . . [and]
they knew the limited scope of the application . . . . The search would thus have been identical in
scope, and exactly the same evidence would have been seized, had the warrant complied with the
Constitution, which is to say, had the warrant repeated the application’s description of the things to
be seized”).
        The Ninth Circuit, we recognize, has charted a different path. It has held that an affidavit
necessary to satisfy the particularity requirement not only must be incorporated into the warrant but
also must accompany the warrant at the scene. See, e.g., United States v. McGrew, 122 F.3d 847, 850
(9th Cir. 1997). But this disagreement among the circuits at the time of the search, to say nothing of
the weight of the authority in our circuit and elsewhere favoring the defendants’ assessment of these
constitutional issues, shows that the agents did not violate clearly established law. Wilson v. Layne,
526 U.S. 603, 618 (1999) (noting that when judges “disagree on a constitutional question, it is unfair
to subject police to money damages for picking the losing side of the controversy”).
        Groh does not alter this conclusion. The Court could criticize that search as warrantless
because the warrant contained a “glaring deficiency” upon issuance recognizable by “any reasonable
police officer,” 540 U.S. at 564: Namely, in the section calling for “a description of the ‘person or
property’ to be seized,” id. at 554, the agent typed “single dwelling . . . blue in color,” id. at 554 n.2.
When the magistrate signed the warrant, this description was the only one regarding the items that
could be seized. Id. Such a warrant, the Court concluded, was “facial[ly] invalid[],” id. at 557, and
because “the particularity requirement is set forth in the text of the Constitution, no reasonable officer
could believe that a warrant that plainly did not comply with that requirement was valid,” id. at 563.
Absent any evidence on the face of the warrant that it incorporated the attached affidavit, the Court
concluded, the warrant was “manifestly invalid,” “warrantless” and thus “constitutionally fatal.” Id.
at 564.
        Today’s facts offer a poor analogy. At the time of issuance, this warrant specifically
incorporated the affidavit (“See Attached Affidavit”), which in turn particularly described the items
to be seized. Far from invalidating incorporated affidavits, Groh recognized that they may satisfy
the particularity requirement, and in this case no one disputes that the warrant upon issuance
appropriately incorporated the affidavit and that the magistrate reviewed, approved and signed the
warrant and affidavit. At the time of issuance, in marked contrast to Groh, no amount of study by
the agents or the magistrate would have revealed a constitutional infirmity in the warrant.
        Nor did Groh say that it was clearly established that a warrant valid upon issuance becomes
invalid upon execution if the incorporated affidavit does not accompany the search. The words of
the Constitution, to which the Court referred in concluding that the Groh warrant was facially invalid,
establish particularity requirements that apply by their terms upon the “issu[ance]” of a warrant, not
upon the execution of it. Whether a particularized warrant at the time of issuance may become an
unparticularized warrant when a cross-referenced affidavit does not accompany the search remains
a matter of continued debate among the circuits and remains an issue that neither the text of the
Fourth Amendment nor Groh resolves. We thus conclude that even if this search had violated the
Fourth Amendment right, it did not violate “clearly established” constitutional law, and accordingly
the agents should receive qualified immunity.
                                                   III.
        For these reasons, we affirm.
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                              ___________________________________
                                 CONCURRING IN JUDGMENT
                              ___________________________________
        RONALD LEE GILMAN, Circuit Judge, with whom MARTHA CRAIG DAUGHTREY,
Circuit Judge, joins, concurring in the judgment. I concur in the result reached by the majority
opinion because I believe that the government officials in this case are entitled to qualified immunity.
The majority’s discussion of this issue in Part II.B. strikes me as persuasive. I do not believe that the
Supreme Court’s decision in Groh v. Ramirez, 540 U.S. 551, 553, 557 (2004), which was decided
three years after the search in question, retroactively caused the Fourth Amendment violation to be
clearly established at the time of the search. This is especially so in light of the then-existing Sixth
Circuit precedent to the contrary.
         But I agree with Part II.A. of Judge Clay’s dissent, which explains why Baranski’s Fourth
Amendment rights were violated. The language and policy reasons set forth in Groh indicate that
if a warrant fails to list the items to be seized, it is defective unless a list of those items is explicitly
incorporated into an affidavit that is present at the scene of the search. Although the Supreme Court
has never addressed the question of whether officers are required to present a search warrant to the
subject of a search upon request, a warrant’s particularity requirement is based on the text of the
Constitution and therefore must be complied with even if the subject never views the warrant. In this
case, I believe that the search warrant as executed was not sufficiently particular. I therefore concur
only in the result reached by the majority.
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                                          _______________
                                             DISSENT
                                          _______________
        CLAY, Circuit Judge, with whom MARTIN, MOORE, and COLE, Circuit Judges, join,
dissenting. Today, the majority concludes that a valid search warrant need not describe with
particularity “the persons or property to be seized,” so long as an affidavit, neither attached to the
warrant nor present at the scene of the search, describes such items. Because I believe the majority’s
position to be in error, I respectfully dissent. Not only is the use of a such a warrant contrary to the
plain language of the Fourth Amendment and the Supreme Court’s recent decision in Groh v.
Ramirez, 540 U.S. 551, 559 (2004), but the use of such a warrant violates an individual’s clearly
established right to be free from unreasonable searches and seizures. Accordingly, I would deny
Defendants qualified immunity and reach the issue of whether Heck v. Humphrey, 512 U.S. 477
(1994), bars Plaintiffs’ Fourth Amendment claims. Inasmuch as Heck does not bar all of Plaintiffs’
claims, I would reverse the order of the district court and remand for trial.
                                                    I.
         This case comes before us as an appeal of a district court’s grant of summary judgment in
favor of Defendants. We review a district court’s decision to grant summary judgment de novo.
Kalamazoo Acquisitions v. Westfield Ins. Co., 395 F.3d 338, 341 (6th Cir. 2005). Summary judgment
shall be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and a
judgment is proper as a matter of law.” Fed. R. Civ. P. 56(c). “The district court, and this court in
its review of the district court, must view the facts and any reasonable inferences drawn from them
in the light most favorable to the party against whom judgment was entered.” Kalamazoo
Acquisitions, 395 F.3d at 342 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). The court may neither weigh the evidence nor make credibility determinations.
Logan v. Denny’s Inc., 259 F.3d 558, 570 (6th Cir. 2001).
                                                   II.
        The majority errs in affirming the district court’s determination that Defendants are entitled
to qualified immunity in the instant case. A government official is not entitled to qualified immunity
if the plaintiff alleges facts that, if true, establish that the official violated the plaintiff’s clearly
established federal rights. Saucier v. Katz, 533 U.S. 194, 200-02 (2001); Wilson v. Layne, 526 U.S.
603, 614 (1999); Anderson v. Creighton, 483 U.S. 635, 640 (1987). In determining whether the
plaintiff has adequately alleged that an official violated a clearly established federal right, the
Supreme Court has instructed courts first to assess whether the defendant-official violated the
plaintiff’s federal right, and then address whether the right was clearly established at the time the
official acted. Saucier, 533 U.S. at 200-01. In the instant case, Defendants executed a search of
Plaintiffs’ property pursuant to a search warrant that failed to state with particularity the items to be
seized in violation of the Fourth Amendment. Inasmuch as this right was clearly established in April
2001, when Defendants executed the search of Plaintiffs’ property, Defendants are not entitled to
qualified immunity on Plaintiffs’ Fourth Amendment claim.
A.      Constitutional Violation
       The Fourth Amendment prohibits the government from conducting unreasonable searches and
seizures. It states:
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       The right of the people to be secure in their persons, houses, papers, and 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 places to be searched, and the person or things to be seized.
U.S. Const. amend IV. The long-standing jurisprudence of the Supreme Court makes clear that a
search is generally unreasonable within the meaning of the Fourth Amendment unless it is authorized
by a valid warrant. Groh, 540 U.S. at 559 (citing Payton v. New York, 445 U.S. 573, 586 (1980));
Camara v. Muni. Court, 387 U.S. 523, 528-29 (1967). Importantly, the warrant need not only be
valid when issued, but also when the search is conducted, to comply with the reasonableness
requirement. See Wayne R. LaFave, Search and Seizure § 4.7(a), 646-48 (4th ed. 2004) (stating that
the execution of a validly issued warrant violates the Fourth Amendment if probable cause dissipates
before the execution).
        In order to be valid, a warrant must state, with particularity, the items to be seized. U.S.
Const. amend IV; Maryland v. Garrison, 480 U.S. 79, 84 (1987). “‘The test for determining whether
the description in the warrant is sufficient to satisfy the particularity requirement [of the Fourth
Amendment] is whether ‘the description is such that the officers can with reasonable effort ascertain
and identify the [items] intended [to be seized].”” United States v. Watkins, 179 F.3d 489, 494 (6th
Cir. 1999) (quoting Steele v. United States, 267 U.S. 498, 503 (1925) and United States v. Votteller,
544 F.2d 1355, 1362 (6th Cir. 1976)). A warrant does not meet the Fourth Amendment’s particularity
clause where it fails to “describe the items to be seized at all.” Groh, 540 U.S. at 558. An adequate
description is not rendered invalid, however, simply because it “omits a few items from a list of
many,” or “misdescribe[s] a few of several items.” Id. Similarly, mere typographical errors do not
render a warrant invalid. Id.
        The primary purpose of this particularity requirement is to limit the discretion of the officer
executing the warrant, thereby preventing the officer from conducting a general search. Garrison,
480 U.S. at 84. As the Supreme Court explained in Camara, a particular warrant insures that the
officer’s discretion is limited both by interposing the judgment of a neutral magistrate and by alerting
the individual whose person or property is being searched of the boundaries of that officer’s legal
authority. 387 U.S. at 533.
        The warrant at issue in this case was “plainly invalid” inasmuch as it did not describe the
items to be seized at all, let alone with particularity. Where the warrant called for a description of
the person or property to be seized, it stated “See Attached Affidavit.” (J.A. at 91.) No Affidavit was
ever attached to the warrant, however, as the affidavit was sealed at the same time the warrant was
issued pursuant to the government’s request. Thus, the ATF’s search was conducted pursuant to an
invalid warrant, which failed to describe the property to be seized with particularity in violation of
the Fourth Amendment.
        The majority erroneously concludes that the warrant was sufficiently particular only by
misconstruing the Supreme Court’s recent decision in Groh v. Ramirez, 540 U.S. at 551. In Groh,
the Supreme Court addressed the validity of a warrant that failed to describe the items to be seized.
Id. at 554-55. Where the warrant called for a description of the items to be seized, the petitioning
officer entered a description of the property to be searched. Id. The Supreme Court held that the
warrant was “plainly invalid” despite the fact that the affidavit upon which the warrant was based
described the items to be seized with particularity. Id. at 557. The Supreme Court reasoned that the
“Fourth Amendment by its very terms requires particularity in the warrant, not in the supporting
documents.” Id.
       Although the Supreme Court declined to address the issue of accompaniment expressly in
Groh, as the warrant in Groh did not incorporate the affidavit, the Groh opinion makes it inescapably
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clear that a warrant cannot satisfy the particularity clause of the Fourth Amendment by reference to
an affidavit that is not present at the scene of the search. The Groh opinion contains numerous
statements indicating that an affidavit must actually accompany the warrant in order to cure a
deficiency in particularity. For example, the opinion states: “But unless the particular items described
in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the
affidavit present at the search) there can be no written assurance that the Magistrate actually found
probable cause to search for, and to seize, every item mentioned in the affidavit.” Id. at 560 (emphasis
added). Additionally, the opinion provides: “The presence of a search warrant served a high function
. . . and that high function is not necessarily vindicated when some other document, somewhere, says
something about the objects of the search, but the contents of that document are neither known to the
person whose home is being searched or available for inspection,” id. at 557 (emphasis added), and
“[b]ecause [the executing officer] did not have in his possession a warrant particularly describing the
things he intended to seize, proceeding with the search was clearly ‘unreasonable’ under the Fourth
Amendment,” id. at 563 (emphasis added). These statements in Groh emphasize that the description
itself must be present at the scene of the search in order for the search to be reasonable.
        Most importantly, however, the rationale behind Groh compels the conclusion that a warrant
does not satisfy the particularity requirement unless the incorporated affidavit is present at the scene
of the search. The Groh court explained that the Fourth Amendment requires that a warrant describe
with particularity the items to be seized not only to prevent general searches but also to “‘assure[] 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.’” Id. at 561 (quoting United States v. Chadwick,
433 U.S. 1, 9 (1977) (citing Camara, 387 U.S. at 532 )). A warrant that incorporates an affidavit that
is not present at the search cannot serve this function. Id. at 557. Without seeing a copy of the
affidavit, the individual whose property is being searched or seized has no way to know the limits of
the officer’s authority. See Larry EchoHawk & Paul EchoHawk, Curing a Search Warrant That
Fails to Describe The Place to be Searched, 35 Idaho L. Rev. 1, 25-26 (1998) (“Incorporation,
however, is not a sufficient limitation by itself. Incorporation merely brings to the attention of those
involved the fact that an additional document must be referenced. If the additional document is not
available or not in fact used, incorporation may show the intent of the magistrate but may not limit
the actual search when it is performed.”).
        Not surprisingly, at least one scholar who has addressed the meaning of Groh reached the
same conclusion: that Groh renders warrants that fail to describe the items to be seized invalid, unless
an affidavit or application describing the items is 1) expressly incorporated, and 2) present at the
scene of the search. LaFave, supra, § 4.6(a), 616. Quoting Groh’s reference to the prevailing theory
among Courts of Appeals – that a warrant that fails to meet the particularity requirement may be
cured only if the underlying affidavit is incorporated and attached to the warrant – LaFave concludes:
       [I]t is clear that the Court in Groh has accepted and adopted the
       incorporation/accompanying approach, without specifically saying so. . . . the court
       hangs this conclusion not on the particularity-of-description function of advising the
       executing officers what to search for and seize, but rather on the function of notice to
       the person who premises are being searched.
Id. Given the tone and overall import of the Groh opinion, LaFave’s conclusion is clearly correct.
        Nonetheless, the majority holds that Groh does not apply to the facts of this case because
Groh did not address accompaniment. According to the majority, “what doomed the warrant in Groh
was not the existence of a supporting affidavit that particularly described the items to be seized, but
the failure of the warrant to cross-reference the affidavit at all.” Thus, the majority reasons,
Groh does not control the facts of this case because the affidavit was properly incorporated.
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        The problem with the majority’s argument is two-fold. First, the issue in this case is not
whether the Fourth Amendment’s warrant clause permits incorporation; rather, the issue is whether
incorporation alone is sufficient to cure a warrant that is invalid for lack of particularity, or whether
the incorporated affidavit must accompany the warrant in order to cure its deficiency. Thus, Groh is
not inapplicable simply because it declined to expressly address accompaniment. Second, Groh does
not hold that the warrant “was doomed” simply because it failed to cross reference the relevant
affidavit. See Groh, 540 U.S. at 557. Instead, after noting that the prevailing practice in federal
courts of appeals is to allow incorporation where the warrant used express words of reference and the
incorporated documents accompanied the warrant, Groh explained, “But in this case the warrant did
not incorporate other documents by reference, nor did either the affidavit or the application (which
had been placed under seal) accompany the warrant.” Id. (emphasis added). Rather, the warrant was
“doomed” both because it failed to both reference the affidavit and because the affidavit did not
accompany the warrant. See id.
        The sole argument of the majority that carries any weight is that neither the Fourth
Amendment nor the Federal Rules of Criminal Procedure always require an executing officer to
present a warrant to the individual whose premises are being searched before commencing the search.
Thus, the majority reasons, there is no reason to require an incorporated affidavit to be attached to
the search warrant and present at the search. This argument, while having facial appeal, does not
withstand appropriate analysis inasmuch as the majority’s argument is inapplicable to the facts of this
case. Although it is clear that the Fourth Amendment and the Federal Rules of Criminal Procedure
do not always require an officer to present the warrant prior to the search, see United States v.
Grubbs, 547 U.S. — , 126 S. Ct. 1494, 1501 (March 12, 2006), Groh, 540 U.S. at 562 n.5, the
Supreme Court has expressly reserved the question of whether an officer’s refusal to present a
warrant to the individual being searched when the individual expressly     requests to see the warrant
is “reasonable” within the meaning of the Fourth Amendment,1 Grubbs, 126 S. Ct. at 1503 (Souter,
J., concurring), Groh, 540 U.S. at 562 n.5. In this case, Plaintiffs’ employee, Shafizadeh, expressly
requested to see the warrant. Thus, it follows that whether Shafizadeh was entitled to see the warrant
in the case at hand is undecided, and the majority’s reasoning assumes a legal conclusion – that the
individual being searched has no right to see the warrant — that may or may not be correct. Grubbs,
126 S. Ct. at 1503 (Souter, J., concurring), Groh, 540 U.S. at 562 n.5.
        Furthermore, a search warrant’s presence at the scene of the search does more than simply
inform the individual of the officer’s authority; it also informs the officers of the limits of their
authority. The Sixth Circuit itself has recognized this rationale on several occasions. See United
States v. Pritchett, 40 Fed. App’x 901, 907 (6th Cir. 2002); United States v. Gahagan, 865 F.2d 1490,
1497 (1989). In fact, this rationale is the basis of the Sixth Circuit rule that an incorporated affidavit
generally must be attached to the warrant. See Pritchett, 40 Fed. App’x at 907; Gahagan, 865 F.2d
at 1497-99.
        Although it is true that the Sixth Circuit formerly recognized an exception to the attachment
rule where the officer who authorized the incorporated affidavit also executed the search, Pritchett,
40 Fed. App’x at 907; Gahagan, 865 F.2d at 1497-99, and this exception would have been applicable
on the facts of this case, Groh overruled this exception. As will be discussed in more detail infra,
Groh also involved an affidavit authored by the executing officer, and yet the Supreme Court laid out
a rule requiring the affidavit to be present at the scene of the search. See Groh, 540 U.S. at 554-55,

          1
            I would hold that an officer’s refusal to furnish the warrant to an individual whose premises are being searched
 upon the individual’s request is unreasonable within the meaning of the Fourth Amendment. This conclusion is
 unnecessary to our holding, however, inasmuch as the Supreme Court’s decision in Groh squarely controls the outcome
 of this case. Under Groh, the warrant in this case was facially invalid, rendering the search unreasonable within the
 meaning of the Fourth Amendment. See Groh, 540 U.S. at 558. I mention this only to point out the fallacy of the
 majority’s attempt to undermine the notice function of the particularity clause as set forth in Groh.
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558-63. Moreover, the Supreme Court’s rejection of the Sixth Circuit’s exception was logical
inasmuch as one officer’s knowledge of the contents of an incorporated affidavit does not alone
insure that the other executing officers have knowledge of its contents. Additionally, relying on an
officer’s memory of an affidavit seems unnecessarily risky.
        Finally, the Supreme Court instructed us in Groh that a facially invalid warrant remains
invalid, unless cured by proper incorporation and accompaniment. Proper accompaniment requires
the incorporated affidavit to be attached to the warrant, or at the very least, present at the scene of the
search. The majority is not free to ignore the Supreme Court’s instructions simply because it finds
the Supreme Court’s rationale unpersuasive.
         The Supreme Court’s recent decision in United States v. Grubbs, 126 S. Ct. at 1494, lends no
support to the majority’s argument. Id. The Grubbs opinion addresses a different issue. In Grubbs,
the Supreme Court unanimously held that the Fourth Amendment did not require the “triggering
conditions” of anticipatory search warrants to be set forth on the face of the warrant. Id. at 1500. The
Supreme Court reasoned that the Fourth Amendment “specifies only two matters that must be
particularly described in the warrant: ‘the place to be searched’ and ‘the persons or things to be
seized.’” Id. Inasmuch as the text of Fourth Amendment does not require triggering conditions to
be set forth on the face of a warrant, the Supreme Court declined to read such a requirement into the
Fourth Amendment for the purpose of assuring the person being searched of the officer’s legal
authority. Id. at 1501. The Court passingly noted that “this argument assumes that the executing
officer must present the property owner with a copy of the warrant before conducting his search [but]
in fact . . . neither the Fourth Amendment nor Rule 41 impose such a requirement.” Id. at 1501.
        The Supreme Court’s rejection of the defendant’s argument in Grubbs – that the notice
function of the particularity clause requires triggering conditions to be set forth on the face of a
warrant – does not alter the relevance of the particularity clause’s notice function in this case. A
crucial distinction between the case at hand and Grubbs is that this case, like Groh, addresses “items
to be seized” whereas Grubbs addressed “triggering conditions.” The text of the Constitution
requires the items to be seized to be set forth on the face of a warrant. U.S. Const. amend. IV. In
contrast, the text of the Constitution does not require that “triggering conditions” be set forth on the
face of a warrant. Id. Inasmuch as the text of the Fourth Amendment does not require “triggering
conditions” to be set forth on the face of a warrant, the notice function of the particularity clause is
an insufficient reason to impose such a requirement. See Grubbs, 126 S. Ct. at 1500-01.
         To say that the notice function of the particularity clause is an insufficiently substantial reason
to create an extra-textual requirement for warrants, however, is not to say that an existing textual
requirement of the particularity clause does not protect an individual’s interest in being notified of
the officer’s authority and its limits. See id. at 1503 (Souter, J., concurring). In other words, Grubbs
does not prohibit this Court from considering the notice function of the particularity clause in
determining how best to implement the Fourth Amendment’s dictate that “items to be seized” be set
forth on a warrant because Grubbs addresses not whether the notice function should be considered
when determining how to implement the Fourth Amendment’s express dictate that “items to be
seized” be set forth on the face of a warrant,” but whether the notice function is a sufficiently
important reason to impose additional, extra-textual requirements. Id. at 1501. Rather, that is the
province of Groh, and Groh has held that the notice function of the particularity clause is relevant
to whether a warrant complies with the particularity clause’s textual requirement that items “to be
seized” be set forth on the face of the warrant. See Groh, 540 U.S. at 557-563 (discussing the
purpose of the particularity clause). Because the instant case involves this textual requirement of
listing the items to be seized, Groh and not Grubbs controls. Accordingly, this Court should consider
the notice function of the particularity clause in determining whether the warrant in this case was
facially deficient. See id.
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        The weakness of the majority’s position is evidenced by its attempt to buttress its primary
argument, the argument addressed above, with collateral arguments. For example, the majority
contends that the Constitution does not require officers to leave warrants at the scene of the search
even after the search is completed because it would be impossible to do so in a wiretap search. (Maj.
Op. at 17-18.) Exceptions, however, do not create the rule. The Constitution has countless
requirements for which the Supreme Court makes exceptions. In fact, the warrant requirement itself
is open to numerous exceptions, including exigent circumstances. See, e.g., Brigham City v. Stuart,
547 U.S. —, — S. Ct —, 2006 WL1374566, at *4 (2006) (exigent circumstances); Georgia v.
Randolph, 547 U.S. —,126 S. Ct. 1515, 1520 (2006) (consent); Payton v. New York, 445 U.S. 573,
576 (1980) (prohibiting warrantless entry to suspect’s home in order to make a routine felony arrest).
Thus, to hold that the Constitution does not require officers to leave warrants at the scene of the
search after they complete the search simply because it would be impractical to do so in a narrow set
of circumstances defies Supreme Court precedent and logic.
        Furthermore, although the majority attempts to obscure this fact, the Supreme Court has not
held that the Constitution never requires officers to leave warrants at the scene of the search after the
search is completed, but only that it does not require officers to present the warrant prior to the
search. See Grubbs, 126 S. Ct. at 1503 (Souter, J., concurring), Groh, 540 U.S. at 562 n.5. Similarly,
as noted above, the Supreme Court has expressly reserved the question of whether the Fourth
Amendment requires an officer to present a warrant upon request. Id.
       Additionally, the majority attempts to distinguish the present case from Groh by arguing as
follows:
       Groh turns on the facial invalidity of the warrant, and not the manner in which the
       officers conducted the search. . . . [T]he [Supreme] Court indicated that the
       constitutional violation at issue was the facial insufficiency of the warrant, not the
       failure to incorporate the affidavit and bring it during the search.
(Maj. Op. at 8.) However, the failure to incorporate the affidavit and have it accompany the warrant
rendered the warrant in Groh facially invalid. Thus, attempting to distinguish between “facial
invalidity” and failure to incorporate the affidavit and have it present at the search makes no sense.
        The majority also makes much of the fact that a “neutral magistrate” signed the warrant after
reading the affidavit. This is entirely beside the point. In addition to satisfying only one purpose of
the particularity clause, as discussed above, this argument ignores the fact that the Constitution not
only requires a neutral magistrate’s determination on probable cause, but prescribes the manner in
which we insure that this requirement is met by requiring the neutral magistrate to list, on the face
of warrant, the items to be seized. See U.S. Const. amend. IV. This Court is not free to relieve the
magistrate of that constitutional obligation simply because it believes another method is equally
adequate.
        Finally, the majority inexplicably and repeatedly quotes Dalia v. United States, 441 U.S. 238
(1979), for the proposition that “a search conducted in accordance with a valid warrant does not
become warrantless, and therefore ‘presumptively unreasonable,’ due to the manner in which the
officers conducted the search.” (Maj. Op. at 6.) The argument is wholly specious. No one is
contending that the search in this case was unreasonable because of the manner in which the search
was conducted, unless one construes that manner as pursuant to an invalid warrant. The warrant in
this case was facially invalid. It did not state the items to be seized. Nor was it cured by proper
incorporation and accompaniment. Therefore, the search violated the Fourth Amendment.
       In reaching the opposite conclusion, the majority loses sight of the fact that Defendants in this
case could have easily avoided this entire suit and its attendant problems simply by transcribing the
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items listed in the affidavit onto the warrant or onto a list attached to the warrant. Because
Defendants failed to complete this simple task, Plaintiffs were forced to move a federal court to
unseal the affidavit, and consequently, did not receive a copy of the affidavit until one and a half
years after the search occurred because the district court in this case would not unseal the affidavit
until after Plaintiff Baranski was convicted. This Court would hardly be imposing any great burden
on law enforcement officers by holding that the Defendants’ conduct violated the Fourth Amendment.
Such a holding would, however, go a long way in assuring the American people that they live in a
country governed by the rule of law.
B.     Clearly Established Right
        Not only does the Supreme Court’s decision in Groh compel the conclusion that Defendants
violated Plaintiffs’ Fourth Amendment rights, but Groh also requires this Court to deny Defendants
qualified immunity for the violation. After the Supreme Court determined that the officers in Groh
violated the particularity clause of the Fourth Amendment, the Court further held that the officer in
charge of the search was not entitled to qualified immunity. Applying the qualified immunity test
set forth in Saucier v. Katz, 533 U.S. at 194, the Supreme Court held that the defendant was not
entitled to qualified immunity because the right at issue – the right to be searched only pursuant to
a warrant describing with particularity the items to be seized – was clearly established. The right was
clearly established because it is set forth in the text of the Constitution itself. Thus the Court
reasoned “it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Groh, 540 U.S. at 563 (citing Saucier, 533 U.S. at 194).
        The very same clearly established constitutional right is at issue in this case. That is,
Defendants in this case also violated Plaintiffs’ Fourth Amendment right to be searched only pursuant
to a warrant describing with particularity the items to be seized. Here too, a reasonable officer would
have recognized that his conduct was unlawful because, as in Groh, the warrant was deficient on its
face. The warrant utterly failed to describe any items that the officers intended to seize. Instead, it
referred the reader to an affidavit that the executing officer intentionally had placed under seal.
Because the executing officer himself had the affidavit placed under seal, he must have known that
the affidavit was not attached to the warrant or available at the scene of the search. Moreover, any
reading of the warrant would necessarily draw attention to the fact that no affidavit describing the
items to be seized was attached. Thus, any officer who read the warrant would be forced to recognize
that the warrant at the scene did not contain any description of the items to be seized and that the
warrant was therefore deficient.
         Even assuming the facial invalidity of the warrant in this case was somehow less glaring than
the deficiency in Groh, Defendants are still not entitled to qualified immunity. A defendant is not
entitled to qualified immunity simply because the official action in question has not previously been
declared unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987). A defendant will also be
denied qualified immunity if “in light of pre-existing law the unlawfulness [of the conduct is]
apparent.” Id.; see also Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting Anderson). Groh makes
it indisputably clear that pre-existing law rendered the unlawfulness of Defendants’ actions apparent.
According to Groh, one purpose of the particularity requirement is to inform the individual whose
person or property is being searched of the limits of the executing officer’s authority. Groh, 540 U.S.
at 561-62. Moreover, Groh recognized that this purpose is clearly established in Supreme Court case
law, stating: “[the Supreme Court has] long held . . . that the purpose of the particularity requirement
is not limited to the prevention of general searches. A particular warrant also ‘assures the individual
whose property is searched or seized of the lawful authority of the executing officer, his need to
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search, and the limits of his power to search.’”2 Id. at 561 (quoting United States v. Chadwick, 433
U.S. 1, 9 (1977), abrogated on other grounds, California v. Acevado, 500 U.S. 565 (1991)). Because
existing Supreme Court case law made clear that a purpose of the warrant requirement is to inform
the individual subject of the search of the limits of the officer’s authority, a reasonable officer would
recognize the necessity of providing the individual with a warrant listing the items to be seized.
        In light of Groh’s affirmation of the clearly established nature of the right at issue in this case,
Defendant’s reliance on this Circuit’s pre-Groh case law is unavailing. Prior to Groh, the law of this
Circuit admitted an exception to the general rule that to be properly incorporated an affidavit must
be attached to the warrant or present at the scene: where the officer who drafted the affidavit also
executed the search, the affidavit did not need to be attached or present. See United States v. Brown,
49 F.3d 1162 (6th Cir. 1995). Groh has overruled this exception, however, both for the purposes of
the constitutionality of the search and the officer’s entitlement to qualified immunity. As discussed
above, the officer in Groh both drafted the affidavit and executed the search. Nonetheless, the
Supreme Court made clear that the affidavit was not properly incorporated because the warrant
contained no words of incorporation and the affidavit was neither attached to the warrant nor present
at the scene of the search. Moreover, Groh held not only that the affidavit must be attached to the
warrant or present at the scene, but that failure to do so violated a clearly established constitutional
right. The Groh court reached this decision by holding both that the right to a particular warrant was
clearly established and that the basis for the right – informing an individual of the officer’s lawful
authority and limits of the search – was clearly established. Inasmuch as the Groh search occurred
in 1997, it follows that Groh applies to all searches occurring after 1997. The search in this case
occurred in 2001, and it therefore follows that it is governed by Groh and not pre-Groh circuit case
law. Consequently, I would hold that Defendants are not entitled to qualified immunity.
                                                           III.
        Defendants argue that even if they are not entitled to qualified immunity, that the doctrine
enunciated in Heck v. Humphrey, 512 U.S. at 480, requires this Court to dismiss Plaintiffs’ Fourth
Amendment claims because a finding in favor of Plaintiffs would necessarily imply the invalidity of
Plaintiff Baranski’s conviction for conspiracy and his corresponding sentence. Plaintiff Baranski was
convicted in federal district court of conspiring to import machine guns in violation 26 U.S.C.
§ 5861(1). As a part of his sentence, the district court entered an order, requiring Baranski to forfeit
the illegally imported machine guns, which were being stored at Plaintiff Pars’ warehouse.
According to Defendants, a finding that the search in this case was illegal would necessarily imply
that Baranski’s conviction and sentence are invalid because evidence in the search was used to
convict Baranski and later confiscated as a part of his sentence. Contrary to Defendants’
contentions, a finding in favor of Plaintiffs on their Fourth Amendment claims would not necessarily
imply the invalidity of Baranski’s conviction. Thus, I would not dismiss Plaintiffs’ claims pursuant
to Heck v. Humphrey, 512 U.S. at 480.
         In Heck v. Humphrey, the Supreme Court held that habeas actions, and not § 1983 actions,
were the appropriate vehicle for challenging the lawfulness of criminal judgments. 512 U.S. at 480-
89. Accordingly, the Court concluded that claims for relief which “necessarily imply the invalidity
of [a] conviction or sentence” are not cognizable under § 1983. Id. at 487. The Court made sure to
clarify, however, that not all Fourth Amendment claims challenging a search that produced evidence


          2
            To the extent Grubbs could be interpreted as questioning this rationale, it is inapplicable to our qualified
 immunity analysis because it was not decided until several years after the search in question occurred. Unlike Groh,
 the year in which Grubbs was decided is dispositive of its applicability to the facts of this case because Grubbs does not
 purport to apply “clearly established” law of 2001 but rather the law of 2005. Groh in contrast contains a qualified
 immunity analysis and thus applied law clearly established at the time of the search.
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introduced in criminal proceedings “necessarily imply the invalidity of [a] conviction.” Id. The
Court explained:
        [A] suit for damages attributable to an allegedly unreasonable search may lie even if
        the challenged search produced evidence that was introduced in a state criminal trial
        resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of doctrines
        like independent source and inevitable discovery, see Murray v. United States, 487
        U.S. 533, 539, 108 S. Ct. 2529, 2534, 101 L. Ed.2d 472 (1988), and especially
        harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S. Ct. 1246,
        1263-1264, 113 L. Ed.2d 302 (1991), such a § 1983 action, even if successful, would
        not necessarily imply that the plaintiff's conviction was unlawful.
Id. at 487 n.7 (emphasis in original). Heck’s litigation bar applies with equal force to Bivens actions.
Robinson v. Jones, 142 F.3d 905, 906-07 (6th Cir. 1998).
         A hypothetical judgment in this litigation that the search of Pars’ warehouse and the seizure
of Baranski’s machine guns was unconstitutional would not “necessarily imply” the invalidity of
Baranski’s criminal conviction for conspiracy to illegally import machine guns. The district court
in Baranski’s criminal case denied the motion to suppress the machine guns, but indicated that it did
“not necessarily believe” that the machine guns were even relevant to the case. On appeal, the Eighth
Circuit held that “[t]he warrant should not have been suppressed for lack of particularity” because
“the warrant referred to a sealed affidavit that described the weapons,” Baranski, 2003 WL
22176185, at *1 (citing United States v. Cherna, 184 F.3d 403, 412-14 (5th Cir. 1999)), but added
that even if the weapons should have been suppressed, their admission was harmless error because
the documents and testimony proved the government’s case. Id. Consequently, a judgment in this
case that the search and seizure was unconstitutional would not necessarily imply the invalidity of
Baranski’s conviction. Cf. Heck, 512 U.S. at 487 n.7 (opining that “a suit for damages attributable
to an allegedly unreasonable search may lie even if the challenged search produced evidence that was
introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction . . .
[b]ecause of doctrines like . . . harmless error[.]”) (citations omitted).
         The analysis does not end here, however, because Heck also requires dismissal of a lawsuit
that would necessarily imply the invalidity of Baranski’s sentence or “any outstanding criminal
judgment” against him. Heck, 512 U.S. at 487. The district court entered an order of criminal
forfeiture pursuant to the procedures set forth at 21 U.S.C. § 853 after finding that the guns and
accessories described in the indictment were property used or intended to be used in a manner to
facilitate the commission of the crime for which defendant was convicted. See 26 U.S.C. § 5872(a)
(providing that “[a]ny firearm involved in any violation of the provisions of this chapter shall be
subject to seizure and forfeiture”); 28 U.S.C. § 2461(c) (providing that where forfeiture of property
is authorized by statute but no specific statutory provision is made for criminal forfeiture upon
conviction, the government may include the forfeiture in the indictment and upon conviction, the
court shall order the forfeiture of the property in accordance with the procedures set forth in 21
U.S.C. § 853); 21 U.S.C. § 853 (providing that the court, “in imposing sentence,” shall order
criminal forfeiture as to, inter alia, property used or intended to facilitate the commission of a crime).
 The Eighth Circuit affirmed the forfeiture order, holding that the evidence supported the district
court’s finding that the weapons were intended to be used to commit or facilitate the commission of
the charged crime. Baranski, 2003 WL 22176185, at *2 (citing 21 U.S.C. § 853(a)(2)).
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        Because “[f]orfeiture is an element of the sentence imposed following conviction,” Libretti
v. United States, 516 U.S. 29, 38-39 (1995) (emphasis omitted) (interpreting 21 U.S.C. § 853(a)),3
Baranski seeks to impugn part of his criminal sentence by obtaining an injunction compelling the
return of seized firearms, in direct contravention of the forfeiture order. Accordingly, Heck bars
Baranski’s Bivens claim to the extent he seeks return of the forfeited machine guns.
         Baranski seeks more than just return of the weapons. His complaint requests damages
resulting from the fact that the government’s seizure of the weapons placed him “in an economically
disadvantaged position in relation to his competitors who are directly benefitting from the actions of
the defendants, and the absence of [Baranski] from the marketplace.” (J.A. 22 (Complaint at ¶ 73));
see also id. (“The taking [of Baranski’s machine guns in violation of the Fourth Amendment], has
. . . impaired plaintiffs’ ability to earn a lawful income from legitimate activities for which they have
been licensed and authorized by the United States Treasury.”); id. at 35 (prayer for relief at ¶ 5)
(seeking general damages of $186,100). He also seeks compensatory damages for, inter alia,
impairment of reputation and mental anguish, as well as punitive damages. See id. at 35 (prayer for
relief at ¶ 7) (seeking compensatory damages for impairment of reputation, mental anguish, lost
business opportunity as a result of Defendants’ actions, and loss of use of property); id. (prayer for
relief at ¶ 9) (seeking punitive damages for constitutional violations).
        Heck bars Baranski’s Bivens claim to the extent he seeks damages for the lost economic value
of the weapons, whether measured in terms of their appraised value at the time of the unlawful
seizure or the potential value Baranski could have received for the weapons had he been able to sell
them on the open market at some future time. An award of such damages would directly contravene
the forfeiture order, which is premised on the assumption that Baranski no longer has proper title to,
and therefore no continuing economic interest in, those weapons. The same logic applies to
Baranski’s claim for damages premised on loss of use of the weapons. Because the forfeiture order
determined that Baranski no longer owns the weapons, he cannot seek damages for loss of use of
those weapons without running afoul of Heck.
        Baranski’s request for damages for his injured reputation and mental anguish, as well as his
request for punitive damages, are different matters entirely. An award of such damages would not
necessarily imply the invalidity of the criminal forfeiture order. The government knew about the
existence and location of the forfeited weapons prior to their unlawful seizure from Pars’ warehouse
because Baranski had told ATF Agent Johnson about them during an interview. Defendants could
have sought and obtained an order forfeiting those weapons without seizing the weapons.
Accordingly, the validity of the forfeiture order is not dependent upon the legality of the
government’s seizure of those weapons. Cf. One 1958 Plymouth Sedan v. Commonwealth of
Pennsylvania, 380 U.S. 693, 699-703 (1965) (reversing order forfeiting automobile used to transport
untaxed liquor in violation of state law, because search of car potentially violated the Fourth
Amendment and the state could not establish an illegal use of the car without using evidence resulting
from the allegedly unconstitutional search). It follows that a judgment in this case that Defendants’
seizure of the weapons violated Baranski’s Fourth Amendment rights would not necessarily imply
the validity of the forfeiture order. Further, no Heck problem arises, as long as Baranski is limited
to recovering damages only for injuries that would not otherwise have arisen from the lawful
forfeiture of his weapons. Although he cannot seek the replacement value of the weapons or lost
profits due to his dispossession of the weapons, he can seek damages for impaired reputation and
mental anguish as well as punitive damages attributable to the means by which Defendants effected
the search and seizure. An award of damages for these injuries would not necessarily imply the



        3
          See also FED. R. CRIM. P. 32.2(b)(3) (“At sentencing . . . the order of forfeiture becomes final as to the
defendant and must be made a part of the sentence and be included in the judgment.”).
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invalidity of the forfeiture order, the validity of which is entirely independent of the method of the
search and seizure.
        Although Defendants also raise the Heck bar in opposition to Pars’ Bivens claim, we need not
resort to Heck to the extent Pars seeks the return of the forfeited machine guns. See J.A. 35
(Complaint, prayer for relief at ¶ 3) (requesting an order compelling the return of the machine guns
to Pars’ warehouse). Pars was notified of the forfeiture proceedings in Baranski’s criminal case, and
therefore Pars, as a third party, had the opportunity to assert a legal interest in Baranski’s firearms
and petition the district court for a hearing to adjudicate the validity of its asserted interest. See FED.
R. CRIM. P. 32.2(c)(1); 21 U.S.C. § 853(n)(2). The district court below noted that Pars had filed a
claim of ownership in Baranski’s forfeiture proceedings in the Eastern District of Missouri, but there
is no information in the Joint Appendix indicating what type of information, if any, Pars submitted
to support its claim. Pars could have appealed an adverse decision in the forfeiture proceedings,
separate and apart from Baranski’s right to appeal his criminal conviction and sentence. E.g., United
States v. Harris, 246 F.3d 566, 567 (6th Cir. 2001); see also FED. R. CRIM. P. 32.2(c)(4) (“An
ancillary proceeding is not part of sentencing.”). There is no indication in the record that Pars ever
took such an appeal, and as best as we can tell, the forfeiture order became final, giving the United
States clear title to Baranski’s firearms. FED. R. CRIM. P. 32.2(c)(2); 28 U.S.C. § 853(n)(7). Thus,
Pars’ claim for return of the weapons is foreclosed by operation of the forfeiture statute, and Pars
cannot now bring a collateral cause of action to again lay claim to Baranski’s firearms.
         Pars’ Bivens claim is not limited to a request for the return of the machine guns. Pars’
complaint also seeks compensatory and punitive damages directly related to the government’s seizure
of those weapons. See J.A. 22 (Complaint at ¶ 73) (“The taking [of Baranski’s machine guns in
violation of the Fourth Amendment], has . . . impaired plaintiffs’ ability to earn a lawful income from
legitimate activities for which they have been licensed and authorized by the United States
Treasury.”); id. at 35 (prayer for relief at ¶ 5) (seeking general damages of $186,100); id. at 35
(prayer for relief at ¶ 7) (seeking compensatory damages for impairment of reputation, lost business
opportunity as a result of Defendants’ actions, and loss of use of property); id. at 35 (prayer for relief
at ¶ 9) (seeking punitive damages for constitutional violations). Apart from Pars’ asserted ownership
interest in Baranski’s firearms, Pars allegedly had contractual interests connected to those weapons
as a bailee who expected compensation for storing them in its warehouse. Pars also allegedly had
an interest in being free from unlawful governmental intrusions onto its property. Forfeiture
proceedings, however, are not designed to compensate claimants for injuries to these types of
interests. The forfeiture proceedings connected with Baranski’s criminal case could address only the
proper disposition of Baranski’s firearms. See 26 U.S.C. § 5872(a). Pars would not have been
permitted to intervene in those proceedings for any reason other than to stake a claim to those
firearms. See 21 U.S.C. § 853(k)(1) (providing that “no party claiming an interest in property subject
to forfeiture . . . may . . . intervene in a trial or appeal of a criminal case involving the forfeiture of
such property,” other than to assert a legal interest in the property subject to forfeiture).
        The question is whether Heck nevertheless bars Pars’ Bivens claim for compensatory and
punitive damages. Heck involved an action under 42 U.S.C. § 1983 against county prosecutors and
a state police investigator, seeking damages for their allegedly unconstitutional conduct that led to
the plaintiff’s conviction. Heck, 512 U.S. at 479. The Court held that “when a state prisoner seeks
damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence[.]” Id. at 487 (emphasis added).
The Court added that “if the district court determines that the plaintiff’s action, even if successful,
will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed[.]” Id. (emphasis omitted and another emphasis added). The
Court expressed particular concern over affording criminal defendants another opportunity to
collaterally attack their criminal convictions. Id. at 484-85 (“This Court has long expressed . . .
concerns for finality and consistency and has generally declined to expand opportunities for collateral
Nos. 03-5582/5614            Baranski et al. v. Fifteen Unknown ATF Agents et al.                              Page 26


attack[.]”) (citations omitted). Pars, however, is not a prisoner or a former prisoner, and a successful
litigation would not demonstrate the invalidity of any outstanding criminal judgment against Pars.
Thus, nothing in Heck contemplates extending the bar against civil damages actions to third parties
like Pars, whose prior criminal judgments are not at issue.
        Moreover, extending Heck to Pars would be fundamentally unfair. As explained above,
Defendants searched Pars’ warehouse in reliance on a facially defective search warrant, and their
reliance was not objectively reasonable. Yet, barring Pars’ claim pursuant to Heck would leave Pars
with effectively no remedy for the unconstitutional intrusion. Although the constitutionality of the
search was addressed by the courts of the Eighth Circuit        in Baranski’s criminal case, Pars had no
opportunity to participate in the resolution of that issue.4 I am unaware of any statutory provision that
would have afforded Pars the right to intervene in Baranski’s criminal trial in order to join his
suppression motion. Even if Pars had been permitted to intervene, its constitutional claims for
damages against the individual ATF agents could not have been adjudicated in that forum because
the agents were not parties to Baranski’s criminal proceeding. I also question the efficacy and
propriety of trying a criminal action simultaneously with an action for damages. For these reasons,
I would also hold that Heck does not bar Pars’ Bivens claims for damages against Defendants.
        As a purely factual matter, Pars’ ability to recover damages flowing from the unlawful seizure
of the weapons may be greatly circumscribed. The weapons have been forfeited to the government,
and that criminal judgment is unassailable. Therefore, to the extent Pars seeks damages for loss of
use of the weapons or lost storage costs attributable to their unlawful seizure, Pars’ recovery is
temporally limited by the inevitable, lawful forfeiture of those weapons. Pars also can seek
compensatory damages for alleged injuries to its reputation and any other financial injury that flowed
from the unlawful seizure, as long as the injuries can be distinguished from harm it inevitably would
have suffered due to the subsequent, lawful forfeiture of Baranski’s weapons. Like Baranski, Pars
may also seek punitive damages against Defendants for the manner in which they executed the search
and seizure. Given the state of the record, I express no opinion as to whether Pars or Baranski
ultimately would be able to marshal sufficient evidence to prove a compensable injury or even to
create a genuine issue of material fact that they suffered a compensable injury. They may be entitled
only to an award of nominal damages for their constitutional injuries. Those are issues that would
be best left to the district court to decide on remand.
         Finally, I acknowledge that my dissenting opinion on the Fourth Amendment issue appears
to be at odds with the Eighth Circuit’s holding on the same set of operative facts. Were Plaintiffs to
proceed to trial and prevail, Defendants (in their individual capacities) would be found to have
flouted the Fourth Amendment, even though they (in their official capacities) previously were found
to have acted lawfully. I would note, however, that at the time the Eighth Circuit rendered its
decision in Baranski, it did not have the benefit of the Supreme Court’s Groh decision. In any event,
the holding proposed by the dissent in the instant case would be preferable to the alternative of
leaving individuals and property owners who have suffered patently unconstitutional intrusions
without any remedy. I would therefore hold that an action for damages, as circumscribed above,
would not necessarily demonstrate the invalidity of any criminal judgment and, consequently, is not
barred by Heck.




         4
           Conceivably, the prejudice to Pars would be even more severe if Baranski’s criminal counsel had been
ineffective, such as by failing to advance colorable arguments concerning the constitutionality of the search and seizure.
Indeed, if Baranski’s attorney had failed to contest the search and seizure, the Fourth Amendment issue would not have
been litigated at all.
Nos. 03-5582/5614        Baranski et al. v. Fifteen Unknown ATF Agents et al.                 Page 27


                                                 IV.
        For all the foregoing reasons, I would reverse the district court’s dismissal of Plaintiffs’
Bivens claims on qualified immunity grounds; affirm the dismissal of Plaintiffs’ Bivens claims to the
extent they seek (a) return of the firearms that were forfeited after Baranski’s criminal conviction or
(b) damages attributable to the inevitable, lawful forfeiture of those firearms; and reverse the order
of dismissal with respect to Plaintiffs’ claims for compensatory damages that arose from Defendants’
unlawful search and seizure, but that were not otherwise an inevitable result of the subsequent
forfeiture. I would also reverse the dismissal of Plaintiffs’ claims for punitive damages.
