1 NOT PRECEDENTIAL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 S tates District Court for the Eastern District of Pennsylvania (D.C. No s . 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

.

(Fi led : 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 Wright2

Michael N. Huff 1333 Race Street Philadelphia, PA 19107 Counsel for Appellee Randall W right

__________ 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 exe cution 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,
t he District Cou rt 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 exclusionar y rule

. Although the government concedes that the executed warrants were facially invalid , it nonetheless challenges the District Court‟s decision to suppress the evidence. W e conclude that t he Distr ict Court

— al though its ultim ate 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 Dis trict Court to make findings of fact and to perform the requisite analysis

.3 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 J effr e y 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, sever al 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 gran d jury indicte d the Wrights for violations of various drug and firearms
statutes. Before trial, the Wrights moved to suppress the evidence found, arguing that the
warrant s were invalid

. The District Court held a suppression hearing, during which Agent Taylor testified t hat an ordinary warrant request begins with three documents: an affidavit of probable ca u se, 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 bo th4

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 eva luation. 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 atta ched 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 applicati ons 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 prope rties to be searched and not the items to be seized . Although the AFFIDAVIT OF PROBABLE CAU SE does state the items to be seized, it was remov ed from the warrants at the government‟s request , impounded , and sealed before the warrants were executed. As a5

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

a ny d escription 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 be en 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. A lthough 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 motion s . It held that the warrants were invalid b ecause they failed to meet the Fourth Amendment‟s explicit directive to describe with particularity the items to be seized, and it rejected th e government‟s argument that a good faith exception to the exclusionary rule should apply because , in the governme nt‟s view , its constitutional violations stemmed from a “clerical error” rather than police misconduct. T he 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)

.6 II I

. We agree with the District Cou rt 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 enfo rcement 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). T o 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. Cons t. amend. IV (emphase s added). The particularity requirement

— “the touchstone of [the] warrant,” Doe v. Groody , 361 F.3d 232, 239 (3d Cir. 2004)

— is satisfied by expressl y list ing items to be seized or expressly incorporat ing 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, t hose documents must physically accompany the warrant). T he requirement that the wa rrant particularly describe

— rather than imply or assume

— the items to be s e ized is critical to serving one of the Fourth Amendment‟s key purposes: “ to limit the [searching] ag ents ‟ discretion as to what they are entitled to seize. ” Id. at 429. For that reason, w e 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 must7

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 docum ents placed under seal because they did not “accompany the warrant”).
T he District Court determined that the warrants here were invalid because they did not particulari ze 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. T he face of each Wright warran t thus lacked a ny 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 g overnment conceded at oral argument. Although t he government concedes that the warrants were defective , i t 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 particularit y 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 a rgument that an affidavit of probable cause , presented to the magistrate judge and then filed under seal ,8

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 docu ments, unlike the warrants in this case , which referred to sealed documents

. Ba sed 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, th e affidavit cannot be filed under seal. 221 F.3d at 428

- 429

. B ecause 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 pursuan t 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. D ocuments that do not include a p articular 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 “w arrant did not describ e the items to be seized at all , ” it “ was so obviously deficient tha t we must regard the search as „warrantless‟ ”). Applying that rule , we conclude that the search es here were warrantless within the meaning of the Fourth Amendment and presumptively invalid. See Payton , 445 U.S. at 576. Second, volumes of substantial autho rity 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) accompany9

the warrant .” Groh , 540 U.S. at 55 8. 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 ; s ee 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 Appeal s
. 1 All of this authority points to one conclusion: sealed affidavits cannot rescue a warrant that otherwise lack s particularity. Third, and c ontrary to the government ‟ s contention s , we conclude that Groh does not support its position whatsoever

. The government attempts t o 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 wa rrant 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 appl ication 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 particularit y 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 af fidavit provides particularity only if the affidavit accompanie s 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 quotat ion marks and citations omitted)

.10

the warrant from its facial invalidity. ” I d. We see no reason to reach a different conclusion here. Finally, w e are not persuaded by the government ‟ s attempt to attribute the
warrants ‟ defect s to a “ clerical error. ” Re ply 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 , 3 61 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 governmen t‟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 s e ized is presented to a Magistrate Judge , who authorizes a warrant, but the affidavit is not attac hed 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 t hat 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 s imilar fa cts, 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 warrant s were deficient, we turn to the issue of whether their deficiencies , when coupled with the law enforcement conduct here , require11

suppression of the evidence found during the search. We conclude that the District Court‟s decision to suppress evidence was premised on an insuffi cient evaluation of pol ice 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 in valid warrant may not usually be admitt ed at trial , s ee 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 occasione d by an unconstitutional search, ” Davis v. United St ates , 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 dete r misconduct b y 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 “e xclusion exacts a heavy toll on both the judici al system and society at large” by “requir[in g] courts to ignore reliable, trustworthy evidence” and “in many cases . . . set ting the criminal loose in t he 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 pra ctices trigger the harsh sanction of exclusion only when they are deliberate enough to yield12

„meaningfu[l]‟ deterrence, and culpable enough to be „ worth the p rice paid by the justice system, ‟” id. at 2428 (majority opinion) (quoting Herring , 555 U.S. at 14 4 ). W hether 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 exclu sion 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 constit utional requirements, any marginal deter rence does not „pay its way.‟” Herring , 555 U.S. at 147

- 1 48 (quoting Leon , 468 U.S. at 907 n.6). A d istrict c ourt must assess all of the facts and circumstances in determining whether the exclusionary rule should app ly. 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 A ppeals 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 undert ake this assessment of the facts and circumstances with respe ct 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 (quot ations omitted ) , t he District Court “acknowledg e[d] “ that the level of „police culpability‟ in this case is low.” App. 035

.13

Nevertheless, t he Court then concluded the exclusion was required. Indeed, based on its erroneous assumption that a facially invalid warrant automatically triggered a per se appli cation of the exclusionary rule, t he District Court reasoned that no further “consideration of Officer Tayl or‟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

- 1 48

. Wherever “low” might fall on the culpability scale, it does not usually, if ever, refer to grossly negli gent 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 s eems 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 t he things to be seized. ” Virgin Islands v. John , 654 F.3d 412, 418 (3d Cir.14

2011) ( quoting T racey , 597 F.3d at 151 ). But, as “t he good

- faith exception is a judicially created except ion to” the exclusionary rule, Davis , 131 S. Ct. at 2434, a lthough qualifyi ng 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, t he exclusiona ry 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 c ircumstances, not only the text of the warrant

. ” United States v. Otero , 563 F.3d 1127, 1134 (10 th Cir. 2009) (quotations omitted). Accordingly, whether to apply the remedy of exclusion or not ultimately “depend[s] on the circumstances of the particular ca se.” 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 pa rticular cases.”). Given the tenor and detail of the D istrict 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 culpabilit y 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 s tatemen t , and it did not engage in the required15

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 pos ition 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 c ase, 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 th e 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

ou tweighs the costs to truth

- seeking and law enforceme nt 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 analy sis.

* * * * * 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

.