2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-1-2010

USA v. Ralph Tracey

Precedential or Non-Precedential: Precedential

Docket No. 08-3290

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Ralph Tracey" (2010). 2010 Decisions. Paper 1594.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1594
 Honorable Terrence F. McVerry, United States District *

Judge for the Western District of Pennsylvania, sitting by

designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3290

 

UNITED STATES OF AMERICA

Appellant

v.

RALPH DOUGLAS TRACEY

 

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal Action No. 1-08-cr-00126-1)

District Judge: Honorable William W. Caldwell

 

Argued September 29, 2009

Before: RENDELL and AMBRO, Circuit Judges

and McVERRY, District Judge *
2

(Opinion filed March 1, 2010 )

Martin C. Carlson

 United States Attorney

Theodore B. Smith, III (Argued)

Gordon A.D. Zubrod

 Assistant United States Attorney

Criminal Appeals

Office of the United States Attorney

228 Walnut Street,

P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108-0000

Counsel for Appellant

Steve Rice, Esquire (Argued)

18 Carlisle Street, Suite 215

Gettysburg, PA 17325

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge 

The United States Government appeals the order of the
3

District Court suppressing evidence seized and a statement made

during a search conducted pursuant to a warrant. The Court

held that the warrant was general and not cured by the affidavit

of probable cause because it was not incorporated into the

warrant. The Court also concluded that a reasonably objective

police officer would have recognized that the warrant was

defective, and thus the good faith exception to the exclusionary

rule did not apply. On appeal, the Government argues that the

warrant was not general because it incorporated the narrower

affidavit, that the search was limited to the scope of that

affidavit, and that, in any event, the good faith exception applies

to the circumstances of this case. 

Relying on our decision in Doe v. Groody, 361 F.3d 232

(3d Cir. 2004), we conclude that the warrant did not incorporate

the affidavit of probable cause, and thus the narrower affidavit

did not cure the concededly overbroad warrant. We also

conclude that the Government waived any arguments based on

the exception to the incorporation rule applied in United States

v. Leveto, 540 F.3d 200 (3d Cir. 2008), cert. denied, 129 S. Ct.

2790 (2009), by failing to raise them before the District Court.

However, we hold that application of the exclusionary rule is not

justified because the officers acted in good faith by relying on

the validity of the warrant. Accordingly, we reverse the District

Court’s order suppressing the evidence seized as a result of the

search and the statement made during the search, and remand for

further proceedings. 
 Charges against Tracey were initially filed in the Court of 1

Common Pleas of Adams County, Pennsylvania. Before state

prosecution was terminated in favor of federal prosecution, the

Court of Common Pleas Judge held preliminary and pretrial

hearings and denied the motion to suppress Tracey filed in that

Court. In its opinion, the District Court relied on the state

court’s factual findings and therefore did not hold an evidentiary

hearing. 

 Both documents are appended to this opinion. 

2

4

I. Factual and Procedural Background

After conducting an investigation into the Internet

distribution of a video containing images of an adult male

having vaginal sex with a minor female, the Chief of the Liberty

Township Police Department, James Holler, presented an

application for a search warrant to a Magistrate Judge in Adams

County, Pennsylvania. Holler prepared the application for the 1

warrant and a seven-page affidavit of probable cause that

accompanied the application. He used a standard form issued 2

by the Administrative Office of Pennsylvania Courts that was

titled “Application For Search Warrant And Authorization.”

The form included the application and warrant on a single page

divided into several sections. Under the block titled “Identify

Items To Be Searched For And Seized,” which directs

applicants to “be as specific as possible,” Holler wrote: 

Any items, images, or visual depictions
 When the warrant was issued, 18 Pa. Cons. Stat. Ann. § 3

6312 stated in relevant part: 

(c) Dissemination of photographs, videotapes, computer

depictions and films.– 

(1) Any person who knowingly sells, distributes, delivers,

disseminates, transfers, displays or exhibits to others, or who

possesses for the purpose of sale, distribution, delivery,

5

representing the possible exploitation of children

including video tapes or photographs. 

COMPUTERS: Computer input and output

devices to include but not limited to keyboards,

mice, scanners, printers, monitors, network

communication devices, modems and external or

connected devices used for accessing computer

storage media.

In the block requiring a “Specific Description Of Premises

And/Or Person To Be Searched,” Holler included an address

and a detailed description of two buildings located at that

address. He listed Ralph Douglas Tracey, the defendant, as the

owner or occupant of the premises to be searched. 

The box below the name of the owner of the premises

was divided into four partitions. The first and second partitions

asked for “Violation of” and the “Date(s) of Violation.” Holler

wrote “6312(c),(d) PA Crimes Code” and listed the date of the 3
dissemination, transfer, display or exhibition to others, any

book, magazine, pamphlet, slide, photograph, film, videotape,

computer depiction or other material depicting a child under the

age of 18 years engaging in a prohibited sexual act or in the

simulation of such act commits an offense. 

(d) Possession of child pornography.– 

(1) Any person who knowingly possesses or controls any book,

magazine, pamphlet, slide, photograph, film, videotape,

computer depiction or other material depicting a child under the

age of 18 years engaging in a prohibited sexual act or in the

simulation of such act commits an offense. 18 Pa. Cons. Stat.

Ann. § 6312 (amended 2009). 

A “prohibited sexual act” was defined as “sexual

intercourse . . . , masturbation, sadism, masochism, bestiality,

fellatio, cunnilingus, lewd exhibition of the genitals or nudity if

such nudity is depicted for the purpose of sexual stimulation or

gratification of any person who might view such depiction.” Id.

The statute was amended during the pendency of the appeal, see

H.B. 89, 193rd Gen. Assem., Reg. Sess. (Pa. 2009), but the

amendments are not material to this case. 

6

violation as January 9, 2006. Another portion of this box

provided three small boxes for an applicant to check. Holler

checked all three, indicating that: 1) the warrant application had

been approved by the district attorney; 2) additional pages, other

than the affidavit of probable cause, were attached; and 3) the

affidavit of probable cause was attached. The box pertaining to

the probable cause affidavit stated “Probable Cause Affidavit(s)

MUST be attached (unless sealed below).” [A 34] It was
7

followed by a sentence requesting that the applicant identify the

total number of pages. Holler handwrote “7” in response to this

inquiry. Underneath this section, he signed the form, indicating

that he swore there was probable cause to believe that “certain

property” was evidence of a crime and was located at the

“particular premises” described above. In a separate box below

Holler’s signature, the Magistrate Judge signed and attached a

seal, indicating that the affidavit had been sworn before him on

January 30, 2006. 

On the same page as the application, and immediately

below the box containing the Magistrate Judge’s signature, there

is a final box, titled “Search Warrant,” containing the following

language: 

WHEREAS, facts have been sworn to or affirmed

before me by written affidavit(s) attached hereto,

from which I have found probable cause, I do

authorize you to search the premises or person

described, and to seize, secure, inventory and

make return according to the Pennsylvania Rules

of Criminal Procedure. 

The Magistrate Judge indicated when the warrant could be

served. Below the date and time, the Magistrate Judge signed

the warrant and attached a seal. The seven-page affidavit of

probable cause was attached to the application and the warrant,

and the bottom of each page of the affidavit included the
8

signature of Holler and the date, along with the signature of the

Magistrate Judge, the seal, and the date. 

The affidavit of probable cause provided detailed

information on the investigation of Tracey. According to the

affidavit, an officer was investigating the distribution of child

pornography on the Internet by using software to recognize and

match files known to contain child pornography. The officer

found a file name that matched a known movie file. The

affidavit included the digital signature of the file and stated that

this file was a video of an adult male having vaginal sex with a

minor female. 

The officer downloaded the movie file and confirmed its

contents. The officer then determined the Internet Protocol

(“IP”) address of the computer distributing the film and sought

a court order directing Adelphia, the internet service provider,

to provide subscriber information for the IP address along with

connection-access logs. Adelphia responded that the account of

the IP address was registered to Doug Tracey of Fairfield,

Pennsylvania. The Liberty Township Police Department then

became involved in the investigation. After confirming the

Adelphia account information, Holler visited the address listed

on the Adelphia account and observed a house with an attached

body shop. 

The affidavit also included information about the items

the officers expected to seize during the search. On page two of
9

the affidavit, Holler stated that he expected to find “within the

residence of 2896 Tract Road, Liberty Township, Adams

County, PA 17320, items which are/were used to commit the

crime of Sexual Abuse of Children, to wit, 18 PA. C.S.A.

section 6312(c), (d).” He further stated: 

Your affiant has delineated the items your affiant

expects to find within said location which is

captioned under “items to be searched for and

seized” and your affiant incorporates that list

therein. Possession of these items are either in

and of themselves a crime or they are/were

utilized to commit a crime, to wit, Sexual [A]buse

of [C]hildren, 18 PA. C.S.A. section 6312(c), (d).

Additionally, in a section of the affidavit titled “Seizure of

Computers and Digital Evidence,” the affidavit described the

sort of evidence likely to be associated with crimes involving

child pornography, including floppy disks, hard drives, tapes,

DVDs, and CD-ROMs, and explained why it was necessary to

seize these items and search them offsite. The search also was

expected to produce items that showed ownership or use of the

computers and ownership of the home. 

Holler and three other officers served the warrant on the

day it was issued. During the search, Holler explained the

search warrant to Tracey and his wife, informing them that he

was searching for child pornography. Tracey allegedly told
10

Holler that he may have accidentally downloaded one movie

containing child pornography. After a search of the defendant’s

home and the shop adjoining his home, the officers seized: one

working laptop computer, one broken laptop computer, two

floppy disks, two computer towers with power cords, one Sony

video cassette, four other videotapes, one box of 19 video

cassette tapes, and one bag of 19 videotapes. After examining

one of the computer towers, officers removed 208 images and

48 movies allegedly containing child pornography. The

Commonwealth filed charges against Tracey in state court based

on 189 images and 33 movies that it alleged contained child

pornography. 

State prosecution was then terminated in favor of federal

prosecution. A federal grand jury in the Middle District of

Pennsylvania returned a two-count indictment charging Tracey

with receiving and distributing child pornography in violation of

18 U.S.C. § 2252A(a)(2)(A) and possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

Tracey entered a plea of not guilty and was released subject to

conditions. 

Tracey then filed a motion to suppress, arguing that the

evidence seized pursuant to the search warrant must be

suppressed because the warrant lacked the particularity required

by the Fourth Amendment. He also asked that his statement

during the search be suppressed as fruits of this illegal search.

The Government opposed the motion. The District Court
 Tracey does not contend that a different standard of review 4

applies to the District Court’s factual determinations because

that Court relied on the state court’s findings of fact instead of

holding an evidentiary hearing, cf. United States v. Wilson, 413

F.3d 382, 385–86 (3d Cir. 2005), and, in any case, the District

Court’s factual findings are undisputed. 

11

granted the motion to suppress, and the Government filed a

timely appeal. 

II. Discussion

The District Court had subject matter jurisdiction over

this criminal case pursuant to 18 U.S.C. § 3231. We have

appellate jurisdiction under 18 U.S.C. § 3731. 

We review the District Court’s decision to grant a motion

to suppress under a mixed standard of review. See United States

v. Crandell, 554 F.3d 79, 83 (3d Cir. 2009). We review its

findings of fact for clear error, but exercise plenary review over

its legal conclusions. See id. 

4

A. Did the Warrant Incorporate the Affidavit of Probable

Cause?

Before the District Court, the Government conceded that

the description of the items to be searched for and seized in the

application (and therefore the warrant) lacked the particularity
12

required by the Fourth Amendment unless the affidavit of

probable cause was incorporated. On appeal, it contends that

Holler did everything he could to incorporate the affidavit into

the warrant within the confines of the form and that the standard

language on the warrant explicitly incorporated the affidavit.

Tracey responds that Holler failed to incorporate the affidavit of

probable cause into the warrant, and thus the affidavit does not

cure the warrant’s lack of particularity. 

The Fourth Amendment to the Constitution guarantees

the “right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. It directs 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.” Id. “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. As to what is to be

taken, nothing is left to the discretion of the officer executing

the warrant.” Marron v. United States, 275 U.S. 192, 196

(1927). Along with preventing general searches, the

particularity requirement serves two other functions. It

“memorializes precisely what search or seizure the issuing

magistrate intended to permit,” Groody, 361 F.3d at 239, and

informs the subject of the search “of the lawful authority of the

executing officer, his need to search, and the limits of his power

to search,” Groh v. Ramirez, 540 U.S. 551, 561 (2004) (quoting
 Of course, the Fourth Amendment does not require the 5

officer to provide a copy of the warrant to the subject before he

conducts the search. See United States v. Grubbs, 547 U.S. 90,

98–99 (2006); Groh, 540 U.S. at 562 n.5. 

13

United States v. Chadwick, 433 U.S. 1, 9 (1977)). 

5

Along with other Courts of Appeals, we have held that an

affidavit may be used in determining the scope of a warrant that

lacks particularity if the warrant is “accompanied by an affidavit

that is incorporated by reference.” United States v. Johnson,

690 F.2d 60, 64 (3d Cir. 1982); see also Groh, 540 U.S. at

557–58 (“[M]ost 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.”).

“[T]o take advantage of this principle of interpretation, the

warrant must expressly incorporate the affidavit,” and the

incorporation must be “clear.” Groody, 361 F.3d at 239; see

also Bartholomew v. Pennsylvania, 221 F.3d 425, 428–29 & n.4

(3d Cir. 2000). As with the particularity requirement, the

primary purposes of this incorporation rule are to “limit the

[officers’] discretion as to what they are entitled to seize” and

“inform the subject of the search what can be seized.”

Bartholomew, 221 F.3d at 429. 

The issue, then, is whether the warrant incorporated the

affidavit. We are guided in this regard by Doe v. Groody.
14

There, a mother and daughter brought a § 1983 action against

officers who searched them during a search of their home. 361

F.3d at 236–37. Although the officers searched pursuant to a

warrant, the face of the warrant only authorized the officers to

search the home and the male resident of the home. Id. at 236,

239. The officers, recognizing that the face of the warrant did

not authorize them to search the females, argued that the scope

of the warrant should be construed with reference to the

accompanying affidavit, which did request permission to search

all occupants of the house. Id. at 239. 

We held that the warrant had not “expressly

incorporate[d]” the affidavit so as to permit this construction of

the warrant. Id. The warrant specifically referred to the

affidavit in response to the questions about the date of the

violation and the supporting probable cause, but did not mention

the affidavit in response to the question concerning the premises

or people to be searched. Id. at 239. That the affidavit was

expressly referenced in certain sections “demonstrate[d] that

where the face sheet was intended to incorporate the affidavit,

it said so explicitly.” Id. Thus, “the absence of a reference to

the affidavit” in the section describing the premises and persons

to be searched “negat[ed] any incorporation of that affidavit.”

Id. at 240.

 In contrast, we have held that including the statement

“see Exhibit A sealed by Order of the Court” in the items-to-beseized section of the warrant incorporated that exhibit
 However, because Exhibit A was sealed, the Court 6

concluded that it could not be used to construe the scope of the

warrant. See id. at 429–30. In that context, the warrant lacked

the particularity required by the Fourth Amendment. See id.

 We have required incorporation to be explicit when officers 7

seek to use the affidavit either to broaden the warrant or to

narrow it. See Groody, 361 F.3d at 239–40 (broadening);

Johnson, 690 F.2d at 64–66 (narrowing). We have not indicated

that there would be reason to apply a less exacting standard

when the officers seek to use the affidavit to narrow the scope

of the warrant. 

15

containing a list of items to be seized. See Bartholomew, 221

F.3d at 429; see also Bartholomew v. Pennsylvania, No. 97-

5684, 1999 WL 415406, at *1 (E.D. Pa. June 23, 1999), rev’d,

221 F.3d 425. Similarly, we held an affidavit was incorporated 6

where the warrant “direct[ed] the police officers to search the

defendant’s premises ‘for . . . evidence which is specified in the

annexed affidavit.’” United States v. Johnson, 690 F.2d at 64.7

Other Courts of Appeals have accepted phrases such as

“attached affidavit which is incorporated herein,” “see attached

affidavit,” and “described in the affidavit,” as suitable words of

incorporation. See, e.g., United States v. Waker, 534 F.3d 168,

172 n.2 (2d Cir. 2008); United States v. McGrew, 122 F.3d 847,

849 (9th Cir. 1997); United States v. Curry, 911 F.2d 72, 76–77

(8th Cir. 1990). 
16

Here, we agree with the District Court—albeit for

different reasons—that the warrant did not adequately

incorporate the affidavit of probable cause. The face sheet of

the application and the warrant do not contain any explicit words

of incorporation. More importantly, the description of the items

to be searched for and seized does not incorporate the affidavit.

The first reference to the affidavit on the application and

warrant requires that the affidavit be attached to the application

and asks for the total number of pages. The box is checked and

“7” is handwritten in the blank. However, these markings do

not suggest that the description of the items to be seized is to be

read in conjunction with the affidavit. The second reference

appears in the Search Warrant section of the form, where

preprinted words state that the Magistrate Judge has found

probable cause from the “facts [that] have been sworn to or

affirmed before me by written affidavit(s) attached hereto.”

Again, this statement gives no indication that the items-to-beseized section is to be read with reference to the affidavit. See

Groh, 540 U.S. at 555 (rejecting a similar statement as

insufficient to incorporate the application or affidavit of

probable cause into the warrant); see also Curry, 911 F.2d at

76–77 (finding the following language insufficient to

incorporate the affidavit: “Whereas, the application and

supporting affidavit of Det. Ross Swanson [were] duly

presented and read by the Court, and being fully advised in the

premises . . . .”). Thus the only two references to the affidavit

fail to incorporate expressly the affidavit into the warrant’s

description of the items to be searched for and seized if found.
17

The Government argues that Holler did all he could to

incorporate the affidavit by checking the box, writing in the

number of pages, attaching it to the application and warrant, and

signing below the preprinted language. But if Holler intended

to incorporate the affidavit into the description of items to be

seized, he could have written “see affidavit,” “as further

described in the affidavit,” or any other words of incorporation.

This requirement is not difficult, yet it went unmet in this case.

The Government’s other arguments regarding

incorporation are unpersuasive. It correctly argues that this case

is distinguishable from Groh because the warrant there

contained no words of incorporation and neither the application

nor the affidavit accompanied the warrant. 540 U.S. at 557–58.

But this argument does not help the Government — our Court

requires clear words of incorporation to cure a warrant lacking

particularity. 

The Government also contends that the District Court

failed to recognize that the application and warrant are one

document pursuant to the Pennsylvania Rules of Criminal

Procedure. The Government argues that, under Pennsylvania

practice, the description of the items to be seized is to be listed

in the affidavit, not the application, and the affidavit must be

served with the warrant. See Pa. R. Crim. P. 205 and 206. It

posits that this practice serves the purpose of the incorporation

rule by providing the agents and the subject with notice of the

limits of the search. This argument ignores that the
 These words of incorporation need not be included in the 8

section lacking particularity, as long as the words of

incorporation in the warrant make clear that the section is to be

read with reference to the affidavit. 

18

Pennsylvania Rules, in accordance with the federal Constitution,

also require that the search warrant itself “identify specifically

the property to be seized” and “describe with particularity the

person or place to be searched.” See Pa. R. Crim. P. 205. 

Accordingly, we hold that for an affidavit to cure a

warrant’s lack of particularity, the words of incorporation in the

warrant must make clear that the section lacking particularity is

to be read in conjunction with the attached affidavit. Merely 8

referencing the attached affidavit somewhere in the warrant

without expressly incorporating it does not suffice. In this case,

a reader of the warrant would know that an affidavit is attached,

but would have no indication that the attached affidavit limits

the officers in their search. Because the warrant did not

explicitly incorporate the affidavit of probable cause into the

description of the items to be searched for and seized, the

warrant’s lack of particularity is not cured by the affidavit. 

B. The Scope of the Actual Search

The Government’s alternative argument is that, even if

the affidavit were not incorporated into the warrant, its lack of

particularity was cured because the affidavit accompanied the
19

warrant, and the search was confined to the narrower scope of

the affidavit. See, e.g., Leveto, 540 F.3d at 211. However, the

Government waived this argument by failing to raise it before

the District Court. 

A suppression argument raised for the first time on

appeal is waived unless good cause is shown. See United States

v. Rose, 538 F.3d 175, 182 (3d Cir. 2008). Thus we must first

determine if the argument was raised before the District Court

or, in the alternative, if the Government has shown good cause

for failing to raise the argument earlier. 

In Groody we recognized that other Courts of Appeals

allow two exceptions to the general rule requiring that the

affidavit be incorporated into the warrant. 361 F.3d at 240. The

first exception allows a court to reference an unincorporated

affidavit when the warrant contains “an ambiguity” or a clerical

error that could be clarified by the affidavit. Id. The second

exception provides that an unincorporated affidavit can cure an

overly broad warrant if the actual search is restricted to the

narrower scope of the affidavit. Id. We declined to apply the

second exception in Groody because the case involved an

affidavit and an actual search that were broader in scope than

the terms of the warrant. Id. at 241. We emphasized the

distinction between allowing an unincorporated affidavit to

broaden, rather than limit, the scope of the search permitted by

the warrant. Id. (“[T]he officers seek to use the affidavit to

expand, rather than limit, the warrant. That makes all the
20

difference . . . . [I]t is one thing if officers use less than the

authority erroneously granted by a judge. It is quite another if

officers go beyond the authority granted by the judge.”

(emphases in original)). 

But in our case, the Government did not argue before the

District Court that the warrant could be cured by the narrower

affidavit and the actual search even if the affidavit were not

incorporated into the warrant. A footnote in the District Court’s

memorandum opinion shows that the Court did not believe this

argument was before it. See United States v. Tracey, No. 1:08-

126, 2008 WL 2622908, at *4 n.4 (M.D. Pa. June 30, 2008)

(“We do not explore whether Ortega-Jimenez and cases like it

might allow us to rely on the unincorporated affidavit[,] as the

government does not argue that incorporation is not necessary,

preferring instead to contend that incorporation in the

application is all that is needed.”). This argument is thus waived

unless the Government can show good cause for its failure to

raise it. See Rose, 538 F.3d at 182. 

The Government argues that it had good cause because

United States v. Leveto — the first decision in our Court

upholding the use of the second exception discussed in Groody

— was filed after the District Court’s opinion in Tracey. See

Leveto, 540 F.3d at 211–12. However, the Government easily

could have distinguished Groody in its argument to the District

Court before Leveto was issued. Even a cursory review of

Groody reveals that it recognized the exception at issue, but
 Tracey argues that the Government did not make certain 9

arguments in favor of the good faith exception before the

District Court, and thereby also waived them on appeal. Before

that Court, however, the Government contended that the good

faith exception applied because excluding the seized evidence

in this case would not deter misconduct where Holler could have

reasonably relied on the validity of the warrant, believing that he

had incorporated the attached affidavit into the warrant.

Accordingly, the good faith argument was not waived and will

be addressed on the merits. 

21

concluded that it could not be applied to expand the scope of a

warrant. See 361 F.3d at 240–41. Our opinion in Groody

provided the Government with the authority it needed to make

this argument, but it failed to do so. The Government has not

shown a good reason for this failure, and, accordingly, its

argument is waived on appeal. See Rose, 538 F.3d at 182. 

C. The Good Faith Exception

Before the District Court, the Government conceded that

the description of the items to be seized on the face of the

warrant did not meet the Fourth Amendment’s particularity

requirement unless it was construed with reference to the

narrower affidavit. In the event that the District Court

concluded that the warrant did not incorporate the affidavit, the

Government contended that the good faith exception to the

exclusionary rule applied. The Court rejected this argument, 9
22

holding that the good faith exception did not apply because the

warrant was general and the description of the items to be

searched for and seized was “so facially defective that no

reasonable police officer should have relied on it.” Tracey,

2008 WL 2622908, at *5. 

In United States v. Leon, the Supreme Court recognized

that the purpose of the exclusionary rule — to deter police

misconduct — would not be furthered by suppressing evidence

obtained during a search “when an officer acting with objective

good faith has obtained a search warrant from a judge or

magistrate and acted within its scope.” 468 U.S. 897, 919–20

(1984). The Court explained that “[i]n the ordinary case, an

officer cannot be expected to question the magistrate’s probablecause determination or his judgment that the form of the warrant

is technically sufficient.” Id. at 921; see also Massachusetts v.

Sheppard, 468 U.S. 981, 988–90 (1984) (holding that the good

faith exception applied in a case where the warrant lacked

particularity because the officers reasonably believed the

warrant was valid). Thus “evidence should be suppressed ‘only

if it can be said that the law enforcement officer had knowledge,

or may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.’” Herring v.

United States, 129 S. Ct. 695, 701–02 (2009) (quoting Illinois v.

Krull, 480 U.S. 340, 348–49 (1987)). 

Accordingly, a determination that the Fourth Amendment

has been violated does not necessarily require application of the
23

exclusionary rule. Id. at 700; see also Leon, 468 U.S. at 919–20.

It applies when it serves “to safeguard Fourth Amendment rights

. . . through its deterrent effect.” United States v. Calandra, 414

U.S. 338, 348 (1974). To determine whether to apply the rule

in a particular case, we weigh the benefits of the rule’s deterrent

effects against the costs of exclusion, which include “letting

guilty and possibly dangerous defendants go free.” Herring,

129 S. Ct. at 700, 701. Because of the high social costs of

excluding evidence in a criminal case, the Supreme Court has

instructed that the exclusionary rule should only be applied

when “police conduct [is] . . . sufficiently deliberate that

exclusion can meaningfully deter it, and sufficiently culpable

that such deterrence is worth the price paid by the justice

system.” Id. at 702. Accordingly, we apply the rule when police

conduct is “deliberate, reckless, or grossly negligent,” or when

it will deter “recurring or systemic negligence.” Id. Put another

way, isolated negligent acts on the part of the police do not

warrant application of the exclusionary rule. See id. 

We have previously recognized that the good faith

exception does not apply in four limited circumstances:

1) where the magistrate judge issued the warrant

in reliance on a deliberately or recklessly false

affidavit;

2) where the magistrate judge abandoned his or

her judicial role and failed to perform his or her
24

neutral and detached function; 

3) where the warrant was based on an affidavit so

lacking in indicia of probable cause as to render

official belief in its existence entirely

unreasonable; or 

4) where the warrant was so facially deficient that

it failed to particularize the place to be searched

or the things to be seized.

United States v. Zimmerman, 277 F.3d 426, 436–37 (3d Cir.

2002) (quoting United States v. Hodge, 246 F.3d 301, 308 (3d

Cir. 2001)). These limited exceptions are consistent with the

approach taken in Herring because each of these circumstances

involve conduct that is “deliberate, reckless, or grossly

negligent,” and thus the benefits of deterring future misconduct

“outweigh the costs” of excluding the evidence. Herring, 129

S. Ct. at 700, 702. In this case, the District Court determined

that the fourth exception applied because the warrant failed to

particularize the items to be seized. 

We part paths here. The description of the items to be

searched for and seized was as follows: 

Any items, images, or visual depictions

representing the possible exploitation of children

including video tapes or photographs. 
We recognize, as the District Court did, that Holler 10

incorporated the problematic description in the warrant into the

affidavit. However, the words of incorporation in the affidavit

are succeeded by the following sentence: “Possession of these

items are either in and of themselves a crime or they are/were

utilized to commit a crime, to wit, Sexual abuse of children, 18

PA.C.S.A. section 6312(c), (d).” Reading the sentences

together, the description incorporated from the warrant is limited

by the language indicating that the officers were seeking

25

COMPUTERS: Computer input and output devices to include

but not limited to keyboards, mice, scanners, printers, monitors,

network communication devices, modems and external or

connected devices used for accessing computer storage media.

The Government conceded that the phrase “possible exploitation

of children” was overly broad. However, in the attached

affidavit, Holler wrote that he “expect[ed] to find within the

residence . . . items which are/were used to commit the crime of

Sexual Abuse of Children, to wit, C.S.A. section 6312 (c), (d).”

The detailed affidavit also included the specific digital signature

of the video of an adult male having vaginal sex with a minor

female, and explained why seizure of the computer equipment

was necessary. When read with reference to the attached

affidavit, it is clear that the warrant authorized the officers to

search for evidence of violations of 18 Pa. Cons. Stat. Ann.

§ 6312(c) and (d). The attached affidavit, therefore, provides

the particularity necessary to satisfy the Fourth Amendment.10
permission to search for and seize evidence of violations of a

specific statute’s subsections. Accordingly, the affidavit

particularly described the items to be searched for and seized. 

 

26

Though the Government conceded that the lack of

particularity on the face of the search warrant violated the

Fourth Amendment, we believe that Holler could have

reasonably relied on the warrant because a reasonable officer in

his position would assume that the warrant incorporated and

would be construed with the attached affidavit. As noted above,

in Groody we held that a warrant must “expressly incorporate”

an affidavit in order for the warrant to be construed with

reference to the affidavit. 361 F.3d at 239. Here, Holler

checked the box indicating that the probable cause affidavit was

attached and handwrote the number “7” to indicate the total

number of pages. Notably, this language required the affidavit

to be attached unless it was sealed. Next, Holler and the

Magistrate Judge signed and the Magistrate Judge sealed each

page of the seven-page affidavit, which was attached to the

warrant. 

Given the format of the Pennsylvania form Holler used,

a reasonable police officer in Holler’s position might assume

that he had in fact “expressly” incorporated the affidavit by

checking the boxes regarding the affidavit and attaching the

affidavit to the warrant. Even though we conclude these efforts

were not legally sufficient because the warrant does not clearly
 The reasonableness of Holler’s belief is supported by the 11

fact that the Court of Common Pleas Judge, who ruled on

Tracey’s pretrial motions in state court, concluded that the

description of the items to be seized in the warrant must be read

with reference to the affidavit of probable cause. 

27

indicate that the items-to-be-seized section is to be read with

reference to the attached affidavit, an officer could

understandably believe that he had met the requirements of the

Fourth Amendment. See United States v. Cardall, 773 F.2d 11

1128, 1133 (10th Cir. 1985) (“[I]t must . . . be remembered that

the knowledge and understanding of law enforcement officers

and their appreciation for constitutional intricacies are not to be

judged by the standards applicable to lawyers.”). Our cases

recognize that an incorporated affidavit may narrow the scope

of a warrant, and it would be reasonable for an officer in

Holler’s position to believe the affidavit was properly

incorporated and, therefore, the warrant was valid. See United

States v. Hamilton, 591 F.3d 1017, 1026, 1028–29 (8th Cir.

2010) (finding that the good faith exception applied even though

the face of warrant lacked particularity, and it was unclear

whether the affidavit was incorporated into the description of

the items to be seized, because the officer had an objectively

reasonable belief that the warrant and its reference to the

affidavit authorized the search). 

 In addition to holding a reasonable belief that the

warrant incorporated the narrower affidavit, Holler’s use of the
28

phrase “possible exploitation of children” on the face of the

warrant does not make it “so facially deficient” that no

reasonable officer could rely on it. The section below the

description of the items to be seized and the premises to be

searched is titled “Violation of,” and directs the applicant to

“[d]escribe conduct or specify statute.” In response, Holler

wrote in “6312(c),(d) PA Crimes Code,” identifying the

Pennsylvania statute criminalizing the dissemination and

possession of media containing depictions of “a child under the

age of 18 years engaging in a prohibited sexual act.” See 18 Pa.

Cons. Stat. Ann. § 6312. The warrant also identifies the date of

the violation as January 9, 2006 — the day the officer found the

video of an adult male having vaginal sex with a minor female

by searching the peer-to-peer networks. In this context, a

reasonable officer could rely on the validity of the warrant if he

believed that the phrase “possible exploitation of children”

would be read in conjunction with the statute, and thus the type

of exploitation of children they were authorized to search for

was limited to sexual abuse of children in violation of § 6312(c)

and (d). 

A reasonable officer would also have confidence in the

validity of the warrant after presenting it and having it approved

by a district attorney and the Magistrate Judge, as occurred here.

See, e.g., United States v. Otero, 563 F.3d 1127, 1134–36 (10th

Cir. 2009), cert. denied, 130 S. Ct. 330 (2009) (holding that the

good faith exception applied to a warrant that lacked

particularity, in part because the agent consulted with the
29

Assistant United States Attorney, who informed her it met legal

requirements); cf. United States v. Hallam, 407 F.3d 942, 947

(8th Cir. 2005) (concluding that the good faith exception applied

where the officer relied on the prosecutor’s determination that

the affidavit provided probable cause). 

We also note that the application of the good faith

exception is appropriate because Holler, who drafted the

narrower affidavit and was aware of its limits, led the search

team at Tracey’s home. In accordance with the narrower

affidavit, Holler informed Tracey and his wife that he was

searching for child pornography when the officers arrived at

Tracey’s home. Indeed, all of the items seized from Tracey’s

home were video or computer equipment, and the 208 images

and 48 movies taken from one of the computers all allegedly

contained child pornography — consistent with the scope of the

narrower affidavit. These facts support our good faith

determination and demonstrate that the primary purposes of the

Fourth Amendment’s particularity requirement — limiting the

officers’ discretion and notifying the subjects of the scope of the

authorized search and seizure — were achieved in this case. See

United States v. Riccardi, 405 F.3d 852, 861–64 (10th Cir.

2005) (holding that the good faith exception applied where the

warrant lacked particularity, but the affidavit limited the scope

of the search, the officers were aware of the affidavit, and the

search was limited to that permitted by the affidavit).

Tracey urges that the good faith exception does not apply
30

because the warrant is “general,” and that good faith cannot save

a general warrant. Appellee’s Br. 26 (citing United States v.

Yusuf, 461 F.3d 374 (3d Cir. 2006)). We reject Tracey’s

argument that the warrant was “general” such that it “vest[ed]

the executing officers with unbridled discretion to conduct an

exploratory rummaging through [a defendant’s] papers in search

of criminal evidence.” United States v. Ninety-Two Thousand

Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307

F.3d 137, 149 (3d Cir. 2002) (quoting United States v. Christine,

687 F.2d 749, 753 (3d Cir. 1982)). Examples of general

warrants are those authorizing searches for and seizures of such

vague categories of items as “‘smuggled goods,’” “‘obscene

materials,’” “‘books, records, pamphlets, cards, receipts, lists,

memoranda, pictures, recordings and other written instruments

concerning the Communist Party of Texas,’” “‘illegally obtained

films,’” and “‘stolen property.’” Id. (citations omitted). In

Ninety-Two Thousand Four Hundred Twenty-Two Dollars and

Fifty-Seven Cents, 307 F.3d at 146, a case involving illegal

money laundering, we considered whether a warrant authorizing

a search for the following items constituted a “general” warrant:

1. Receipts, invoices, lists of

business associates, delivery

schedules, ledgers, financial

sta tem e n ts, c a s h re c e i p t ,

disbursement, . . . sales journals,

and correspondence.
31

2 . Co m puters, co m p u t e r

peripherals, related instruction

manuals and notes, and software in

order to conduct an off-site search

for electronic copies of the items

listed above.

Id. at 149. Despite the breadth of the warrant, which imposed

virtually no limitation on the types of business records subject

to seizure, and which authorized a search for “correspondence”

generally, then-Judge Alito wrote for the majority that the

warrant was not “general”: “The warrant thus ‘describ[ed] in .

. . inclusive generic terms what is to be seized.’ It did not vest

the executing officers with ‘unbridled discretion’ to search for

and seize whatever they wished. It was indubitably broad, but

it was not ‘general.’” Id. at 149 (internal citation omitted). 

Here, the warrant directs officers to search for items

representing the “possible exploitation of children,” but

specifically cites on its face the statutory provision criminalizing

possession and distribution of images of children engaged in

prohibited sexual acts. Read as a whole, this warrant did not

authorize an exploratory rummaging. Therefore, it was not a

general warrant, and a reasonable officer could rely on it.

The officer’s failure to incorporate the affidavit — a task

that could be accomplished by simply adding ‘see attached

affidavit’ in the appropriate section — and use of the phrase
32

“possible exploitation of children” do not amount to “deliberate,

reckless, or grossly negligent conduct” that justifies the

application of the exclusionary rule. Nor has Tracey presented

evidence that this violation is an example of “recurring or

systemic negligence.” See Herring, 129 S. Ct. at 702. Instead,

Holler and other officers undertook a thorough investigation, as

detailed in the affidavit, and the Magistrate Judge found

probable cause and issued the warrant. See Sheppard, 468 U.S.

at 989 (holding that the good faith exception applied where

“[t]he officers . . . took every step that could reasonably be

expected of them”). The officers had good reason to believe in

the warrant’s validity. Accordingly, application of the

exclusionary rule is not justified. 

* * * * * 

Holler did not explicitly incorporate the affidavit of

probable cause into the search warrant, and therefore the

affidavit cannot be used to narrow the terms of the concededly

overly broad warrant. Because the Government lacked good

cause for its failure to argue before the District Court that the

warrant’s lack of particularity could be cured when the affidavit

was attached to the warrant and the actual search was limited to

the terms of the narrower affidavit, this argument was waived.

However, under these circumstances the good faith exception

applies and exclusion of the evidence is not justified.

Accordingly, the order of the District Court suppressing the

evidence seized, along with the statement made during the
33

search, is reversed, and this case is remanded for further

proceedings. 
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3290

 

UNITED STATES OF AMERICA

Appellant

v.

RALPH DOUGLAS TRACEY

 

APPENDIX