                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 10-3552
                                   _____________

                         UNITED STATES OF AMERICA,
                                        Appellant

                                          v.

                              MICHAEL WRIGHT and
                               RANDALL WRIGHT

                                    __________

                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                  (D.C. Nos. 5-09-cr00270-001 & 5-09-cr0027-0002)
                    District Judge: Honorable Lawrence F. Stengel
                                      __________

                           Argued on September 20, 2011

           Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges.

                               (Filed: August 16, 2012)

Zane David Memeger, United States Attorney
Robert A. Zauzmer, Assistant United States Attorney (Argued)
Seth Weber, Assistant United States Attorney
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Appellant United States of America

Mark S. Greenberg (Argued)
1429 Walnut Street, Suite 1301
Philadelphia, PA 19102
      Counsel for Appellee Michael Wright

                                          1
Michael N. Huff
1333 Race Street
Philadelphia, PA 19107
      Counsel for Appellee Randall Wright

                                          __________

                                 OPINION OF THE COURT
                                       __________
ALDISERT, Circuit Judge.

       The government appeals from the District Court for the Eastern District of

Pennsylvania‟s grant of Appellees‟ motions to suppress evidence seized from their

apartments after the execution of two search warrants. The District Court held that the

warrants ran afoul of the Fourth Amendment‟s particularity requirement by failing to

“describe . . . the things to be seized,” U.S. Const. amend. IV. Construing our precedent,

the District Court concluded that the warrants‟ facial deficiencies obviated the need to

“consider[][the] [o]fficer[‟s] . . . level of responsibility for the error in this case,” App.

035, and instead, triggered an automatic application of the exclusionary rule.

       Although the government concedes that the executed warrants were facially

invalid, it nonetheless challenges the District Court‟s decision to suppress the evidence.
We conclude that the District Court—although its ultimate conclusion may prove to be

correct—erred in holding that the warrants‟ “facial[] invalid[ity]” necessarily required

suppression of the evidence, id., without first engaging in the Supreme Court‟s prescribed
exclusionary rule analysis. We will therefore vacate and remand the case to permit the

District Court to make findings of fact and to perform the requisite analysis.




                                                2
                                             I.

       Because we write primarily for the parties, who are familiar with the facts and the

proceedings in the District Court, we will revisit them only briefly.

                                             A.

       The Wright brothers (Michael and Randall, not the historically famous aviators)

live in apartments one block apart in Allentown, Pennsylvania. In 2008 and 2009, the

Drug Enforcement Agency (DEA) suspected the brothers of using the apartments to sell

marijuana. Its suspicions were confirmed in January 2009, when a DEA informant twice

bought a pound of marijuana from Michael Wright. The informant also reported seeing

Randall Wright with large amounts of cash. Swearing to these facts in an affidavit of

probable cause, DEA Agent Jeffrey Taylor sought warrants for the search of the Wrights‟

apartments. A Magistrate Judge issued the warrants on January 27, 2009, and they were

executed the same day.

       During the search of Randall Wright‟s apartment, DEA agents recovered four

guns, several boxes of ammunition, about $7,900 in cash, 50 pounds of marijuana, and

assorted drug paraphernalia. In Michael Wright‟s apartment, they found approximately

$1,000 in cash, 43 pounds of marijuana, and assorted drug paraphernalia.
                                             B.

       A grand jury indicted the Wrights for violations of various drug and firearms

statutes. Before trial, the Wrights moved to suppress the evidence found, arguing that the

warrants were invalid. The District Court held a suppression hearing, during which Agent

Taylor testified that an ordinary warrant request begins with three documents: an affidavit

of probable cause, a warrant application, and a face sheet. The affidavit of probable cause

sets forth the facts justifying the warrant. The warrant application and face sheet are both




                                             3
preprinted forms with blank spaces in which the applicant is instructed to describe the

person or property to be seized. It is common for applicants to fill in these sections by

writing, “See ATTACHMENT A” or “See ATTACHMENT B.” Attachment A is

normally a description of the property to be searched, and Attachment B is normally a

listing of the items to be searched for or seized.

       In Agent Taylor‟s experience, a DEA agent ordinarily completes the affidavit of

probable cause, and the United States Attorney‟s Office ordinarily prepares the warrant

application and face sheet. The U.S. Attorney‟s Office then attaches the warrant

application and face sheet to the DEA agent‟s affidavit of probable cause and submits the

entire package to a Magistrate Judge for evaluation. Upon approval, the Magistrate Judge

signs the face sheet, and the face sheet becomes the warrant. The appurtenant documents

(e.g., the affidavit of probable cause, warrant application, and any other supporting

documents) may or may not remain attached to the warrant when it is executed.

       Those appear to be the procedures followed in this case: Agent Taylor prepared an

affidavit of probable cause to search the Wrights‟ apartments, and an Assistant United

States Attorney prepared two warrant applications and face sheets and submitted the

entire package to a Magistrate Judge. In this case, however, the Assistant United States
Attorney filled out the items-to-be-seized section of each face sheet with the words, “SEE

ATTACHED AFFIDAVIT OF PROBABLE CAUSE,” and the items-to-be-seized

section of the warrant application with the words, “SEE ATTACHMENT A.”

       The problem in this case is that ATTACHMENT A describes the properties to be

searched and not the items to be seized. Although the AFFIDAVIT OF PROBABLE

CAUSE does state the items to be seized, it was removed from the warrants at the

government‟s request, impounded, and sealed before the warrants were executed. As a




                                              4
result, although complete when signed by the Magistrate Judge, the final warrants lacked

any description of the items to be seized at the time they were executed.

       When asked at the suppression hearing whether he noticed that the warrants lacked

an ATTACHMENT B or any other description of the items to be seized, Agent Taylor

explained that he had been very busy organizing the raids upon the Wrights‟ apartments

and had not noticed the deficiency. He testified that he was “intimately familiar” with the

Fourth Amendment‟s requirement that warrants state with particularity the items to be

seized during a search, but in this case he had relied upon the United States Attorney‟s

office to complete the warrant process properly. App. 105. Although he knew that the

warrants should have included a list of items to be seized, Agent Taylor testified that he

“didn‟t take notice” of the list, or lack thereof, and “just assumed everything that was

supposed to be there was there.” App. 112.

       After hearing this evidence, the District Court granted the Wrights‟ suppression

motions. It held that the warrants were invalid because they failed to meet the Fourth

Amendment‟s explicit directive to describe with particularity the items to be seized, and

it rejected the government‟s argument that a good faith exception to the exclusionary rule

should apply because, in the government‟s view, its constitutional violations stemmed
from a “clerical error” rather than police misconduct. The government timely appealed.

                                             II.

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

under to 18 U.S.C. § 3731. We apply a mixed standard of review in the suppression

context, reviewing “findings of fact for clear error,” but exercising “plenary review over

its legal conclusions.” United States v. Tracey, 597 F.3d 140, 146 (3d Cir. 2010).




                                             5
                                              III.

       We agree with the District Court that the warrants in this case—neither of which

described any items to be seized—were invalid on their face. Whether the execution of

the invalid warrants required suppression, however, is a question that requires a more

thorough examination of law enforcement culpability than the inquiry undertaken by the

District Court here. Because we, as a court of review, are not equipped to now find facts

about culpability that would be needed for an exclusionary rule analysis, we will remand.

       A government search of a private home presumptively violates the Fourth

Amendment absent exigent circumstances or a valid warrant. See Payton v. New York,

445 U.S. 573, 576 (1980). To be valid, the relevant portion of the Fourth Amendment

requires that a warrant “particularly describ[e] the place to be searched, and the persons

or things to be seized.” U.S. Const. amend. IV (emphases added). The particularity

requirement—“the touchstone of [the] warrant,” Doe v. Groody, 361 F.3d 232, 239 (3d

Cir. 2004)—is satisfied by expressly listing items to be seized or expressly incorporating

by reference an affidavit that lists such items. See Bartholomew v. Pennsylvania, 221

F.3d 425, 428-429 (3d Cir. 2000) (holding that if a warrant‟s particularity depends upon

incorporated documents, those documents must physically accompany the warrant). The
requirement that the warrant particularly describe—rather than imply or assume—the

items to be seized is critical to serving one of the Fourth Amendment‟s key purposes: “to

limit the [searching] agents‟ discretion as to what they are entitled to seize.” Id. at 429.

       For that reason, we have imposed two requirements upon warrants that seek to

satisfy the particularity requirement through incorporation by reference to an affidavit.

First, “the warrant must expressly incorporate the affidavit, and the incorporation must be

clear.” Tracey, 597 F.3d at 147 (quotation omitted). Second, the affidavit must




                                               6
accompany the warrant; it cannot be impounded and sealed. See Bartholomew, 221 F.3d

at 429-430 (“[W]here the list of items to be seized does not appear on the face of the

warrant, sealing that list, even though it is „incorporated‟ in the warrant, would violate the

Fourth Amendment.”); cf. Groh v. Ramirez, 540 U.S. 551, 558 (2004) (refusing to

consider documents placed under seal because they did not “accompany the warrant”).

       The District Court determined that the warrants here were invalid because they did

not particularize the items to be seized from the Wrights‟ apartments. Although the

warrants purported to incorporate by reference Agent Taylor‟s affidavit of probable

cause, that affidavit did not actually accompany the warrants when they were executed

because it was—at the government‟s request—impounded and filed under seal. The face

of each Wright warrant thus lacked any description of the items to be seized, and the

government did not properly incorporate into either warrant any document that satisfied

the Fourth Amendment‟s particularity requirement. As a result, the searches of the

Wrights‟ apartments were essentially “warrantless” within the meaning of the Fourth

Amendment—a fact the government conceded at oral argument.

       Although the government concedes that the warrants were defective, it

nevertheless maintains that our holding in Bartholomew—that a warrant is invalid if it
depends entirely upon a sealed affidavit for particularity, 221 F.3d at 428-429—is

“subject to doubt,” Brief for United States 20, and asks us to reconsider whether a sealed

affidavit can satisfy the Fourth Amendment‟s particularity requirement after all.

       In Groh, the Supreme Court considered a warrant that not only failed to describe

the items to be seized—like the warrants here—but also failed to incorporate any

document by reference. See 540 U.S. at 558. The Court rejected the argument that an

affidavit of probable cause, presented to the magistrate judge and then filed under seal,




                                              7
saved the warrant‟s validity: “The fact that the application adequately described the

„things to be seized‟ does not save the warrant from its facial invalidity. The Fourth

Amendment by its terms requires particularity in the warrant, not in the supporting

documents.” Id. at 557.

       The government‟s position is that Groh is distinguishable because the warrant

there did not purport to incorporate other documents, unlike the warrants in this case,

which referred to sealed documents. Based upon this distinction, the government urges us

to reconsider Bartholomew, wherein we stated that if a warrant‟s particularity depends

upon an affidavit of probable cause, the affidavit cannot be filed under seal. 221 F.3d at

428-429. Because the warrant application here ultimately referred to the requisite

information, the government contends that we should view the misstep here as a “clerical

error,” and not a search pursuant to an invalid warrant. Reply Brief for United States 9.

       We are not impressed by the government‟s position, for four reasons. First, the

government‟s arguments cannot be reconciled with the plain text of the Constitution.

Documents that do not include a particular description of items to be seized are so

facially deficient that they do not qualify as “warrants” at all. See Groh, 540 U.S. at 558

(holding that when a “warrant did not describe the items to be seized at all,” it “was so
obviously deficient that we must regard the search as „warrantless‟”). Applying that rule,

we conclude that the searches here were warrantless within the meaning of the Fourth

Amendment and presumptively invalid. See Payton, 445 U.S. at 576.

       Second, volumes of substantial authority support our conclusion. The Supreme

Court has explained that a search was unconstitutional because the warrant failed to

describe items to be seized and “did not incorporate other documents by reference, nor

did either the affidavit or the application (which had been placed under seal) accompany




                                             8
the warrant.” Groh, 540 U.S. at 558. Our Court has consistently ruled that a warrant

cannot satisfy the particularity requirement solely by relying upon a sealed affidavit. E.g.,

Bartholomew, 221 F.3d at 429; see also Tracey, 597 F.3d at 147 n.6 (observing that

“because [the incorporated affidavit] was sealed, the Court [in Bartholomew] concluded

that it could not be used to construe the scope of the warrant”). So have our sister Courts

of Appeals.1 All of this authority points to one conclusion: sealed affidavits cannot rescue

a warrant that otherwise lacks particularity.

       Third, and contrary to the government‟s contentions, we conclude that Groh does

not support its position whatsoever. The government attempts to distinguish Groh on the

sole ground that the warrant there did not incorporate any documents by reference,

whether sealed or not. But the dispositive fact in Groh was not what documents the

warrant purported to incorporate; it was that the face of the warrant utterly “failed to

identify any of the items” to be seized. 540 U.S. at 554. The Court could not have more

clearly stated its view of that failure‟s effect: “The warrant was plainly invalid.” Id. at

557. The Court explained that a constitutional application for a warrant “does not save



1
  See, e.g., United States v. McGrew, 122 F.3d 847, 849 (9th Cir. 1997) (holding that an
incorporated affidavit did not provide particularity because the government “offered no
evidence that the affidavit or any copies were ever attached to the warrant or were present
at the time of the search”); United States v. Dahlman, 13 F.3d 1391, 1395 (10th Cir.
1993) (holding that the government cannot rely upon affidavits not attached to the
warrant itself to satisfy the particularity requirement); United States v. Dale, 991 F.2d
819, 846 (D.C. Cir. 1993) (stating that incorporation of an affidavit provides particularity
only if the affidavit accompanies the warrant); United States v. Morris, 977 F.2d 677, 681
n.3 (1st Cir. 1992) (“An affidavit may be referred to for purposes of providing
particularity if the affidavit accompanies the warrant.”); United States v. Curry, 911 F.2d
72, 77 (8th Cir. 1990) (“[A] description in the supporting affidavit can supply the
requisite particularity” for a valid warrant if “the affidavit accompanies the warrant” and
“the warrant uses suitable words of reference which incorporate the affidavit therein.”)
(internal quotation marks and citations omitted).


                                                9
the warrant from its facial invalidity.” Id. We see no reason to reach a different

conclusion here.

       Finally, we are not persuaded by the government‟s attempt to attribute the

warrants‟ defects to a “clerical error.” Reply Brief for United States 9. The requirement

that warrants state with particularity items to be seized is not merely clerical. Rather,

“[a]s the text of the Fourth Amendment itself denotes, a particular description is the

touchstone of a warrant.” Doe, 361 F.3d at 239. Indeed, Groh itself stated that a lack of

particularity cannot “be characterized as a mere technical mistake or typographical error.”

540 U.S. at 558. Simply put, there is no such thing as a broad “clerical error” exception to

the government‟s Fourth Amendment obligations.

       The bottom line is this: in Groh, the Supreme Court held that if an affidavit of

probable cause that describes items to be seized is presented to a Magistrate Judge, who

authorizes a warrant, but the affidavit is not attached to the warrant and the warrant does

not otherwise list “items to be seized,” the warrant is so “plainly invalid” that a search

conducted pursuant to it is “warrantless.” 540 U.S. at 557-558. In Bartholomew, we held

that an affidavit of probable cause that is filed under seal cannot satisfy a warrant‟s

particularity requirement because such an affidavit is not attached to the warrant. 221
F.3d at 428-429. Nothing in Groh calls Bartholomew into question; each case applies

identical reasoning to similar facts, and each reaches an identical, unremarkable

conclusion: warrants must particularly describe items to be seized. We therefore decline

the government‟s invitation to depart from binding authority.

                                             IV.

       Having settled that the warrants were deficient, we turn to the issue of whether

their deficiencies, when coupled with the law enforcement conduct here, require




                                             10
suppression of the evidence found during the search. We conclude that the District

Court‟s decision to suppress evidence was premised on an insufficient evaluation of

police culpability and other facts crucial to a determination to exclude evidence. We will,

therefore, remand to the District Court for further analysis.

       Although evidence seized pursuant to an invalid warrant may not usually be

admitted at trial, see Payton, 445 U.S. at 576; see also Weeks v. United States, 232 U.S.

383, 398 (1914), “[e]xclusion is not a personal constitutional right, nor is it designed to

redress the injury occasioned by an unconstitutional search,” Davis v. United States, 131

S. Ct. 2419, 2426 (2011). Instead, “[t]he rule‟s sole purpose . . . is to deter future Fourth

Amendment violations.” Id. (citing Herring v. United States, 555 U.S. 135, 141 & n.2

(2009), United States v. Leon, 468 U.S. 897, 909, 921, n.22 (1984)), and Elkins v. United

States, 364 U.S. 206, 217 (1960) (“calculated to prevent, not to repair”)).

       In Davis, the Supreme Court clarified the two prerequisites for exclusion. First,

because “the sole purpose of the exclusionary rule is to deter misconduct by law

enforcement,” 131 S. Ct. at 2432 (citations omitted), we must determine whether

exclusion would have “[r]eal deterrent value,” id. at 2427. Second, because “exclusion

exacts a heavy toll on both the judicial system and society at large” by “requir[ing] courts
to ignore reliable, trustworthy evidence” and “in many cases . . . setting the criminal

loose in the community without punishment,” “the deterrence benefits of suppression

must outweigh its heavy costs.” Id. (internal citations omitted); see id. at 2436

(Sotomayor, J., concurring) (“[T]he ultimate questions have always been, one, whether

exclusion would result in appreciable deterrence and, two, whether the benefits of

exclusion outweigh its costs.” (citations omitted)). Accordingly, “[p]olice practices

trigger the harsh sanction of exclusion only when they are deliberate enough to yield




                                              11
„meaningfu[l]‟ deterrence, and culpable enough to be „worth the price paid by the justice

system,‟” id. at 2428 (majority opinion) (quoting Herring, 555 U.S. at 144).

       Whether to apply the exclusionary rule depends on an evaluation of the nature of

police conduct. When law enforcement officers “exhibit „deliberate,‟ „reckless,‟ or

„grossly negligent‟ disregard for Fourth Amendment rights, the deterrent value of

exclusion is strong and tends to outweigh the resulting costs.” Davis, 131 S. Ct. at 2427

(quoting Herring, 555 U.S. at 144). On the other hand, “when police mistakes are the

result of negligence . . . rather than systemic error or reckless disregard of constitutional

requirements, any marginal deterrence does not „pay its way.‟” Herring, 555 U.S. at 147-

148 (quoting Leon, 468 U.S. at 907 n.6). A district court must assess all of the facts and

circumstances in determining whether the exclusionary rule should apply. See Murray v.

United States, 487 U.S. 533, 543 (1988) (“[I]t is the function of the District Court rather

than the Court of Appeals to determine the facts . . . .”); Pullman-Standard v. Swint, 456

U.S. 273, 291 (1982) (“When an appellate court discerns that a district court has failed to

make a finding because of an erroneous view of the law, the usual rule is that there

should be a remand for further proceedings to permit the trial court to make the missing

findings.”); Myers v. Am. Dental Ass‟n, 695 F.2d 716, 738 (3d Cir. 1982) (“As we have
said innumerable times, it is not the proper role of this court to make findings of fact in

the first instance.”).

       Here, the District Court did not undertake this assessment of the facts and

circumstances with respect to the behavior of law enforcement. After recognizing that

exclusion is appropriate only when the level of police culpability is “deliberate, reckless,

or grossly negligent,” Davis, 131 S. Ct. at 2427 (quotations omitted), the District Court

“acknowledge[d] “that the level of „police culpability‟ in this case is low.” App. 035.




                                              12
Nevertheless, the Court then concluded the exclusion was required. Indeed, based on its

erroneous assumption that a facially invalid warrant automatically triggered a per se

application of the exclusionary rule, the District Court reasoned that no further

“consideration of Officer Taylor‟s level of responsibility” was necessary. Id.

       In failing to “consider[] . . . Officer Taylor‟s level of responsibility” and

incorrectly assuming that our precedents stand for the bright-line proposition that

exclusion is always required in instances of a facially invalid warrant, the District Court

erred. First, to the extent that its brief aside that “the level of „police culpability‟ in this

case [was] low” was a factual finding about culpability, id., that statement cannot be

squared with its decision to apply the exclusionary rule. As noted above, only police

behavior that can be characterized as “„deliberate,‟ „reckless,‟ or „grossly negligent‟”

merits exclusion. Davis, 131 S. Ct. at 2427 (quoting Herring, 555 U.S. at 144). Merely

negligent behavior does not. See Herring, 555 U.S. at 147-148. Wherever “low” might

fall on the culpability scale, it does not usually, if ever, refer to grossly negligent

behavior. Without a more thorough factual evaluation, though, we cannot conjecture as to

“low[‟s]” intended meaning here.

       Second, the District Court‟s decision to not undertake a factual analysis of
culpability before applying the exclusionary rule seems to be driven, at least in part, by

its misplaced reliance on a statement in our opinion in United States v. Tracey, 597 F.3d

140 (3d Cir. 2010), and a conflation of the similar-but-separate good faith exception and

exclusionary rule doctrines. See App. 035 (citing Tracey). In Tracey and in subsequent

cases we have stated in dicta that the good faith exception will rarely be available in cases

in which “the warrant [is] so facially deficient that it fail[s] to particularize the place to be

searched or the things to be seized.” Virgin Islands v. John, 654 F.3d 412, 418 (3d Cir.




                                                13
2011) (quoting Tracey, 597 F.3d at 151). But, as “the good-faith exception is a judicially

created exception to” the exclusionary rule, Davis, 131 S. Ct. at 2434, although

qualifying for the good faith exception may result in admitting evidence, not qualifying

for it does not mean that the evidence will be suppressed. Hence, the commonsense

acknowledgement that the good faith exception may prove unavailable in a certain set of

cases in no way relieves a court of its responsibility to undertake a culpability analysis

before applying the exclusionary rule.

       Rather, a court must always analyze whether the exclusionary rule should apply

before suppressing evidence. Indeed, the exclusionary rule is not “a strict-liability

regime,” Davis, 131 S. Ct. at 2429, and “[n]ot every deficient warrant . . . will be so

deficient that an officer would lack an objectively reasonable basis for relying upon it. . . .

[and] [w]e must consider all of the circumstances, not only the text of the warrant.”

United States v. Otero, 563 F.3d 1127, 1134 (10th Cir. 2009) (quotations omitted).

Accordingly, whether to apply the remedy of exclusion or not ultimately “depend[s] on

the circumstances of the particular case.” Leon, 468 U.S. at 923; see id. at 922 n.23 (“In

making this determination, all of the circumstances . . . may be considered.”); id. at 924-

925 (“[C]ourts have considerable discretion in conforming their decisionmaking
processes to the exigencies of particular cases.”).

       Given the tenor and detail of the District Court‟s 31-page opinion, and in light of

its ultimate decision to suppress the evidence, its characterization of the government‟s

misconduct here as exhibiting simply a “low” level of culpability is perplexing. Indeed,

we cannot readily reconcile that statement with the ratio decidendi of the Court‟s opinion

up to that point. Whatever its rationale may have been, though, the District Court simply

did not elaborate on its reasons for that statement, and it did not engage in the required




                                              14
analysis to determine whether the exclusionary rule should apply. On appeal, although

our review of the available facts might lead us to reach the same ultimate decision to

suppress the evidence, we are not in a position to reach out and undertake an analysis that

is better left to the District Court in the first instance. See United States v. Master, 614

F.3d 236, 243 (6th Cir. 2010) (“While it appears at first blush that suppression might be

inappropriate in this case, we will remand to the district court for the purpose of re-

examining the facts and balancing the interests as required by Herring.”); United States v.

Julius, 610 F.3d 60, 67, 68 (2d Cir. 2010) (“[O]n remand, the district court may consider

whether the circumstances of this search, considered in their totality, support application

of the exclusionary rule under Herring. . . . Herring requires careful consideration by

district courts of whether the goal of deterring violations of the Fourth Amendment

outweighs the costs to truth-seeking and law enforcement objectives in each case.”).

Accordingly, we will vacate the District Court‟s decision and remand to allow the District

Court to make further findings and to perform the required exclusionary rule analysis.

                                         * * * * *

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. The judgment of the District Court will be
VACATED and REMANDED for further proceedings consistent with this opinion.




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