                          In the
 United States Court of Appeals
             For the Seventh Circuit
                       ____________

Nos. 07-2080 & 07-2081
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.

FRANCISCO CAZARES-OLIVAS and ISRAEL AGUILERA,
                                     Defendants-Appellants.
                       ____________

         Appeals from the United States District Court
            for the Western District of Wisconsin.
          No. 06-CR-222-S—John C. Shabaz, Judge.
                       ____________
  ARGUED JANUARY 10, 2008—DECIDED JANUARY 29, 2008
                    ____________


 Before EASTERBROOK, Chief Judge, and RIPPLE and
ROVNER, Circuit Judges.
  EASTERBROOK, Chief Judge. After they arrested Fran-
cisco Cazares-Olivas and Israel Aguilera for drug offenses,
federal agents sought a warrant to search the house
where, the agents believed, Cazares-Olivas and Aguilera
kept their inventory. It was after 11 pm, and the agents
feared that if they waited until morning someone else
might beat them to the stash. One agent and an Assistant
United States Attorney called a federal magistrate judge
at 11:37 pm. During a recorded conversation the agent
took an oath to tell the truth and laid out facts that, the
2                                 Nos. 07-2080 & 07-2081

judge found, established probable cause for a search. The
judge questioned the agent, obtained additional infor-
mation, and eventually wrapped up the conversation this
way: “the bottom line is you’ve got judicial authorization.
It is so ordered. You can send your team in right now.” The
search, begun at 1:47 am and finished at 4:25 am, turned
up more than 40 kilograms of cocaine. Cazares-Olivas and
Aguilera pleaded guilty to possessing more than five
kilograms of cocaine with intent to distribute; each was
sentenced to 125 months’ imprisonment. Conditional pleas
reserved the right to contest the denial of the motion to
suppress the evidence found during the search. See Fed.
R. Crim. P. 11(a)(2).
  Telephonic warrants are authorized by Fed. R. Crim. P.
41. An agent is supposed to fill out a form (called a
“proposed duplicate original warrant”) and must “read
or otherwise transmit the contents of that document
verbatim to the magistrate judge.” Rule 41(e)(3)(A). The
judge transcribes the information into the “original war-
rant,” which he signs. The agents who proposed this
search, however, must not have had a supply of blank
warrants handy, and they (along with the Assistant
United States Attorney and the magistrate judge) were
unacquainted with the steps laid out in the rule. (At
oral argument we were told that this was the only time
within the last 15 years, if not longer, that a telephonic
warrant had been requested in the Western District of
Wisconsin.) The agents did not read a “proposed duplicate
original warrant” to the judge, who in turn did not prepare
an original warrant. He simply put the recording on file
and went to bed. As he and the district judge later con-
cluded, when addressing the motion to suppress, this
means that no warrant ever issued authorizing the
search. 2007 U.S. Dist. LEXIS 12823 (M.J. W.D. Wis. Feb.
22, 2007). The agents had judicial approval, based on
probable cause, but they did not have a warrant.
Nos. 07-2080 & 07-2081                                   3

  The absence of a warrant is the beginning and ending
of the defendants’ argument that the evidence must be
suppressed. Residential entries are presumptively unrea-
sonable, and thus violate the fourth amendment, unless
authorized by a warrant. E.g., Payton v. New York, 445
U.S. 573 (1980). There are exceptions—such as a resi-
dent’s consent, or circumstances that justify action before
a warrant can be obtained (e.g., ongoing or impending
destruction of evidence)—none of which applies here.
Only a need for haste is even in the picture, but the fact
that the agents were able to invoke the Rule 41 procedure
shows that they did not deem the situation pressing
enough to dispense with a warrant. Defendants principally
rely on Groh v. Ramirez, 540 U.S. 551 (2004), which held
that absence from a warrant of the constitutionally
particular description of “the place to be searched, and
the persons or things to be seized” meant that there was
no warrant as a functional matter. 540 U.S. at 559. If the
omission of some language spoils a warrant, defendants
inquire, what are we to make of the situation in which
nothing has been written down?
  What we make of it, like the magistrate judge and
the district judge, is that this search occurred without a
warrant. We assume (without deciding) that this omis-
sion made the search unreasonable and exposed the agents
to a suit for damages. But it does not follow that the
evidence is inadmissible. The exclusionary rule is used
for only a subset of constitutional errors. For two promi-
nent examples, consider United States v. Leon, 468 U.S.
897 (1984), which holds that evidence seized in good faith,
in reliance on a warrant that turns out to be invalid, is
admissible, and Nix v. Williams, 467 U.S. 431 (1984),
which holds that evidence is admissible when it would
have been discovered inevitably through lawful means.
These decisions reflect the view that permitting people to
get away with crime is too high a price to pay for errors
4                                  Nos. 07-2080 & 07-2081

that either do not play any causal role in the seizure (the
inevitable-discovery situation) or stem from negligence
rather than disdain for constitutional requirements (the
Leon situation). As the Court put it in Nix, “the interest
of society in deterring unlawful police conduct and the
public interest in having juries receive all probative
evidence of a crime are properly balanced by putting the
police in the same, and not a worse, position than they
would have been in had no police error or misconduct
occurred.” 467 U.S. at 443 (emphasis in original; foot-
note omitted).
  The Court applied this principle in Hudson v. Michigan,
126 S. Ct. 2159 (2006), to hold that evidence seized during
a search that was conducted unreasonably (because the
officers failed to request admission and hold off a while
before bursting in) is admissible in evidence nevertheless.
The Court observed that the same evidence would have
been seized had the officers waited patiently at the door:
the officers’ error affected the time but not the fact of the
seizure. Hudson again stressed the high costs of the
exclusionary rule and expressed a preference for using
awards of damages to deter negligent errors in searches
and seizures and compensate anyone injured by these
errors. Groh was a suit for damages; we doubt that the
Court would have invoked the exclusionary rule when a
description of the things to be seized, though missing
from the warrant, appeared in an affidavit that was filed
with the court in support of the application and was
respected when the search occurred. The inevitable-
discovery doctrine, if nothing else, would have foreclosed
use of the exclusionary rule in Groh.
  What the Court said in Hudson and Nix is equally apt
today. Had the magistrate judge written out and signed
a warrant after hanging up the phone, everything would
have proceeded exactly as it did. The agents would have
conducted the same search and found the same evidence.
Nos. 07-2080 & 07-2081                                       5

True, the agents would not have had a warrant (even an
unsigned “proposed duplicate original warrant”) with
them, but appearing empty handed neither affected the
search nor violated the Constitution. The fourth amend-
ment reads in full: “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, sup-
ported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to
be seized.” It does not require officers to carry warrants
with them, and the Court stressed in United States v.
Grubbs, 547 U.S. 90 (2006), that judges must not add to
the Constitution’s requirements.
  A court of appeals had held that, in addition to “particu-
larly describing the place to be searched, and the persons
or things to be seized”, a warrant must recite the “trigger-
ing condition” for a conditional search. The Justices
thought the addition unsound and observed along the
way that the fourth amendment does not require the
officers to carry or display a paper warrant (547 U.S.
at 98–99):
    “The absence of a constitutional requirement that
    the warrant be exhibited at the outset of the
    search, or indeed until the search has ended, is . . .
    evidence that the requirement of particular de-
    scription does not protect an interest in monitoring
    searches.” United States v. Stefonek, 179 F.3d
    1030, 1034 (CA7 1999) (citations omitted). The
    Constitution protects property owners not by
    giving them license to engage the police in a
    debate over the basis for the warrant, but by
    interposing, ex ante, the “deliberate, impartial
    judgment of a judicial officer . . . between the
    citizen and the police.” Wong Sun v. United States,
    371 U.S. 471, 481–482 (1963), and by providing, ex
6                                 Nos. 07-2080 & 07-2081

    post, a right to suppress evidence improperly
    obtained and a cause of action for damages.
Exactly so here. Cazares-Olivas and Aguilera received
the benefit of a magistrate judge’s impartial evaluation
before the search occurred. The search was supported by
probable cause—on a record fixed, and supported by
an oath, in advance, to prevent hindsight from being
invoked to justify the search. An agent particularly
described the place to be searched and the things to be
seized. The lack of a written document created a risk
that agents would exceed their authority, but that is so
whenever the warrant does not accompany the offi-
cers—and we know from Grubbs and earlier decisions
such as United States v. Hepperle, 810 F.2d 836, 839
(8th Cir. 1987), that, whatever the most prudent course
may be, the fourth amendment does not require officers
to have a warrant in hand when searching. See also
United States v. Shorter, 600 F.2d 585, 587 (6th Cir. 1979)
(an agent’s failure to prepare a “proposed duplicate
original warrant” until after the search had been con-
ducted does not require suppression of the evidence).
  What remains is the violation of Rule 41. The agents did
not prepare and read to the judge a “proposed duplicate
original warrant”. The judge did not prepare and sign an
original warrant. But violations of federal rules do not
justify the exclusion of evidence that has been seized on
the basis of probable cause, and with advance judicial
approval. So we held for Rule 41 in particular in United
States v. Trost, 152 F.3d 715, 722 (7th Cir. 1998). Accord,
United States v. Rome, 809 F.2d 665 (10th Cir. 1987). See
also, e.g., United States v. Caceres, 440 U.S. 741 (1979)
(violation of statutory requirements that go beyond the
Constitution’s demands does not justify the suppression of
evidence unless the statute itself specifies this remedy).
The violation of Rule 41 is regrettable but unlikely to
Nos. 07-2080 & 07-2081                                7

recur. Allowing these defendants to go free would be a
remedy wildly out of proportion to the wrong, which
caused them no injury.
                                             AFFIRMED

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                 USCA-02-C-0072—1-29-08
