IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 14-0288-WS

 )

CLINTON CRABTREE and )

JESSICA SHARON HOWARD, )

 )

Defendants. )

ORDER

By previous order, the Court granted the defendants’ motions to suppress. 

(Doc. 29). The government has now filed a motion for reconsideration. (Doc. 

32). Defendant Crabtree has filed a response and the government a reply, (Docs. 

39, 40).

1

 After careful consideration, the Court concludes that the motion for 

reconsideration, to the extent it is ripe for resolution, is due to be denied.

On their motions to suppress, the defendants argued that the warrant was 

invalid and the resulting search unconstitutional because the warrant – obtained by 

a Saraland police officer after she was summoned to the scene by federal officers 

serving an arrest warrant on Crabtree – did not “particularly describe[e] the 

premises to be searched,” as required by the Fourth Amendment. The Court 

agreed, since the record reflected that the warrant was executed at an apartment 

complex in Saraland even though the warrant authorized a search only of a house 

in Mount Vernon, some fifteen miles away. United States v. Crabtree, ___ 

F.Supp.3d ___, 2015 WL 128058 (S.D. Ala. 2015). 

The government first re-asserts its reliance on United States v. Weinstein, 

762 F.2d 1522 (11th Cir. 1985), and United States v. Burke, 784 F.2d 1090 (11th

Cir. 1986). (Doc. 32 at 3-4). This argument, unamplified from that presented in 

 1 Defendant Howard declined the opportunity to be heard. (Doc. 33). 

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opposition to the motions to suppress, fails for the same reasons the Court 

previously rejected it.

The government’s principal argument is that the error in the warrant’s 

description of the premises to be searched is immaterial because the affidavit on 

which the warrant was based: (1) supplied the correct address; and (2) 

accompanied the executing officer to the premises. (Doc. 32 at 3-5). The 

government has presented the affidavit as an exhibit, and it does reflect the correct 

address. (Doc. 32-1 at 1). The government has not identified any evidence that 

the affidavit accompanied the executing officer to the premises but, because the 

defendant has not objected to the government’s argument on this ground, (Doc. 39 

at 2), the Court considers it.

“The Fourth Amendment by its terms requires particularity in the warrant, 

not in the supporting documents.” Groh v. Ramirez, 540 U.S. 551, 557 (2004). 

An affidavit, of course, is not a warrant but a supporting document. Nevertheless, 

“[w]e do not say that the Fourth Amendment prohibits a warrant from crossreferencing other documents. Indeed, most Courts of Appeals have held that a 

court may construe a warrant with reference to a supporting application or 

affidavit if the warrant uses appropriate words of incorporation, and if the 

supporting document accompanies the warrant.” Id. at 557-58. This makes sense, 

because in such circumstances the affidavit has effectively become a part of the 

warrant. E.g., United States v. Hurwitz, 459 F.3d 463, 471 (4th Cir. 2006). 

The warrant in this case, however, does not incorporate the affidavit. The 

warrant states only that, “[a]ffidavit having been made before me ..., which 

establishes probable cause to make the search herein designated,” with the house 

in Mount Vernon then identified as the place to be searched. (Doc. 13 at 7). Such 

general language does not incorporate by reference the affidavit’s description of 

the premises to be searched. This is clear from Groh itself, where the warrant 

“recite[d] that the Magistrate was satisfied the affidavit established probable cause 

to believe that contraband was concealed on the premises, and that sufficient 

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grounds existed for the warrant’s issuance,” yet the Court ruled that “the warrant 

did not incorporate other documents by reference.” 540 U.S. at 555, 558. As set 

forth in United States v. Curry, 911 F.2d 72 (8th Cir. 1990) – a case to which the 

Groh Court cited, 540 U.S. at 558 – “suitable words of reference incorporating 

[an] affidavit” are phrases such as “see attached affidavit” or “as described in the 

affidavit.” 911 F.2d at 77 (internal quotes omitted); accord United States v. 

Tracey, 597 F.3d 140, 147-48 (3rd Cir. 2010) (incorporation must be “clear,” using 

phrases such as “see Exhibit A sealed by Order of the Court” or “specified in the 

annexed affidavit”) (internal quotes omitted). Nothing of the sort is present here. 

Nor was the affidavit attached to the warrant. Even by the government’s 

unsubstantiated assertion, the affidavit was merely in the possession of the 

executing officer. (Doc. 32 at 1).

Unable to demonstrate that the affidavit was part of the warrant under the 

test outlined above, the government asserts that an affidavit still can be used to 

cure a warrant’s lack of particularity as long as the affidavit “was referenced in the 

warrant and brought to the search along with the search warrant.” (Doc. 32 at 4). 

The cases on which the government relies for this proposition do not support it.

The cited cases from outside this Circuit state at most that either incorporation by 

reference or attachment to the warrant suffices to permit review of an affidavit to 

clarify an ambiguous affidavit; none supports the proposition that neither

incorporation nor attachment to the warrant is necessary. Cases from inside the 

Circuit likewise reflect that one or both are required.

2

 Nor do any known Supreme 

 2 See United States v. Martinelli, 454 F.3d 1300, 1308 (11th Cir. 2006) (“When 

affidavits are attached to a warrant, we will consider the affiant’s statements in 

determining whether the warrant sufficiently identifies the crimes that were allegedly

committed.”) (emphasis added); United States v. Pratt, 438 F.3d 1264, 1270 n.8 (11th Cir. 

2006) (“Search warrants can incorporate by reference the words of supporting documents 

if the documents are attached to the warrant.”) (emphasis added); United States v. 

Weinstein, 762 F.2d 1522, 1531 (11th Cir.), modified on other grounds, 778 F.2d 673 

(11th Cir. 1985) (“Clearly, an affidavit incorporated into a warrant by express reference 

and attached to and accompanying the warrant can cure ambiguity in the warrant itself.”) 

(emphasis added); United States v. Haydel, 649 F.2d 1152, 1157 (5th Cir.), modified on 

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Court cases support the government’s position. Groh itself stated that, unless an 

affidavit was “at least incorporated by reference, and the affidavit present at the 

search,” there could be no assurance that probable cause was found for seizing 

every item listed in the affidavit. 540 U.S. at 560 (emphasis added).

The only authority cited by the government that arguably supports its 

position even superficially is United States v. Wuagneux, 683 F.2d 1343 (11th Cir. 

1982). In Wuagneux, the Court resolved an ambiguity in the warrant by looking to 

an affidavit that was neither incorporated by reference into the warrant nor 

attached to the warrant. The panel ruled that, though “this question is a difficult 

one,” the requirement of incorporation by reference and/or attachment should be 

subject to a “more flexible approach” when the purposes of the particularity 

requirement (which it described as notice to the searchers and the persons whose 

property is searched as to the scope of the searchers’ authority) are “adequately 

served.” According to the Wuagneux Court, bringing the affidavit to the search 

site, advising the searchers of the limits of the search, and giving them an 

opportunity to read the affidavit adequately served those purposes under the 

“peculiar facts of this case.” Id. at 1351 n.6. 

The government has cited, and the Court has located, no appellate opinion 

reading Wuagneux for the proposition that neither incorporation by reference nor 

attachment to the warrant are required before relying on an affidavit to satisfy the 

Fourth Amendment’s particularity requirement, so long as the affidavit is present 

at the search site. On the contrary, the Court has located authorities reading 

Wuagneux consistently with the cases cited in note 2, supra.

3

 The government 

 

other grounds, 664 F.2d 84 (5th Cir. 1981) (“[I]f the affidavit supporting the warrant is 

attached to the warrant when issued, the affidavit may be considered to clarify an 

ambiguity on the face of the warrant.”) (emphasis added). 

3 Weinstein, 762 F.2d at 1531 (citing Wuagneux for the proposition that “an 

affidavit incorporated into a warrant by express reference and attached to and 

accompanying the warrant can cure ambiguity in the warrant itself”); Battle v. Webb, 298 

Fed. Appx. 882, 884 (11th Cir. 2008) (citing Wuagneux for the proposition that, “[a]s this 

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itself relies on Wuagneux only for the proposition “that there is no requirement 

that the affidavit be both incorporated and present at the search, and ... that an 

ambiguity in a warrant may be clarified by reference to the supporting affidavit if 

the affidavit is attached.” (Doc. 32 at 4 (emphasis added, internal quotes 

omitted)).

Even had the government attempted to stretch Wuagneux to excuse both 

lack of incorporation and lack of attachment, its effort would fail. First, 

Wuagneux is by its terms limited to the “peculiar circumstances” presented 

therein, which the government has not shown – or attempted to show – are 

presented here.4 Second, and as noted above, the Eleventh Circuit cases 

acknowledging this portion of Wuagneux extract from it a contrary principle. 

Most importantly, to the extent it can be read as permitting consideration of 

an affidavit to satisfy the particularity requirement absent either incorporation or 

attachment, Wuagneux is irreconcilable with Groh. As noted, “[t]he Fourth 

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

documents,” 540 U.S. at 557, which necessarily precludes consideration of an 

affidavit unless it has become part of the warrant. An affidavit that merely 

accompanies a warrant to the search site does not thereby become part of the 

warrant and thus cannot be considered.

 

court has held, a warrant may satisfy the requirements of the Fourth Amendment through 

incorporation”). 

 

4 Among those circumstances is that the warrant used ambiguous language. 683 

F.2d at 1350. Here, in contrast, the warrant did not describe the place to be searched in 

ambiguous terms but in very clear terms limited the search to a house in Mount Vernon. 

As the Court noted in its previous order, “[i]f an objective reading of the description 

contained on the face of the warrant did not fairly direct attention to the place actually 

searched, we would be compelled to hold the search illegal without further discussion[, 

as] [a]n insufficient warrant cannot be cured by the most detailed affidavit.” Haydel, 649 

F.2d at 1157. Because the warrant did not fairly direct attention to an apartment complex 

in Saraland, no unincorporated, unattached affidavit could be considered under even an 

expansive reading of Wuagneux. 

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The Eleventh Circuit has confirmed that, in light of Groh, “the contents of 

the search warrant itself, not the contents of the supporting documents, [footnote 

omitted] are scrutinized under the Fourth Amendment’s particularity 

requirement.” United States v. Pratt, 438 F.3d 1264, 1269-70 (11th Cir. 2006). 

While “[s]earch warrants can incorporate by reference the words of supporting 

documents if the documents are attached to the warrant,” id. at 1269 n.8, absent 

such circumstances, “[w]e also agree with Pratt that a supporting affidavit, no 

matter how perfect, cannot save a facially defective warrant.” Id. at 1270. 

For these reasons, the Court concludes that the motion to reconsider 

furnishes no grounds for altering the Court’s determination that “the search of 

Howard’s apartment was constitutionally unreasonable and in violation of the 

Fourth Amendment.” (Doc. 29 at 7). 

The government previously argued that the evidence seized during the 

search should nevertheless be admitted under United States v. Leon, 468 U .S. 897 

(1984), and its “good-faith” exception to the exclusionary rule. The Court rejected 

the government’s argument based on Groh, which held that a warrant describing 

the items to be seized as a particular house (which was actually the place of the 

search) did not describe the actual items to be seized “at all” and presented a 

“glaring deficiency” which “any reasonable police officer would have known was 

constitutionally fatal” on “even a cursory reading [or] perhaps just a simple 

glance,” so as to fall outside of Leon. 540 U.S. at 554 n.2, 558, 561 n.4, 564-65. 

Here, the warrant similarly failed to describe the actual place to be searched at all 

and thus reflected a glaring deficiency that a simple glance would have revealed 

and that any reasonable officer would have known rendered the warrant 

constitutionally defective. (Doc. 29 at 7-8). 

The government did not previously acknowledge the relevance of Groh, 

and it still ignores that controlling case. Instead, the government cites two cases 

from other Circuits, (Doc. 32 at 5-6), both of which involve much different facts 

and both of which pre-date Groh, rendering them inapposite. The government’s 

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only other attempt to revisit the Court’s previous ruling is to note that courts may 

consider facts outside the affidavit when deciding a Leon issue. (Id. at 5). This 

may be so when the case involves a warrant issued without probable cause,5 but 

not when it involves the particularity of the warrant in describing the place to be 

searched. 

For these reasons, the Court concludes that the motion to reconsider 

furnishes no grounds for altering the Court’s determination that the good-faith 

exception to the exclusionary rule does not apply. 

Finally, the government introduces an argument completely absent from its 

brief in opposition to the defendants’ motions to compel: that some of the articles 

seized during the (unconstitutional) search are admissible under the “plain view” 

doctrine. (Doc. 32 at 1-3). 

“Of course, the burden of proving an exception to the warrant requirement 

lies with the Government.” United States v. Holloway, 290 F.3d 1331, 1338 (11th

Cir. 2002); accord United States v. McGough, 412 F.3d 1232, 1237 n.4 (11th Cir. 

2005). While the government in its brief has related a version of what transpired 

incident to Crabtree’s arrest and what was found where, when, and under what 

circumstances, it has presented no affidavit from the involved law enforcement 

officers reflecting such a history. Moreover, the single piece of evidence the 

government has submitted – an inventory list – appears to be in tension with the 

government’s version of events in several particulars.6 The government itself 

 5 Such was the situation in United States v. Martin, 297 F.3d 1308 (11th Cir. 

2002), the sole case on which the government relies. Id. at 1318-20.

6 According to the government’s brief, a bag of methamphetamine ice and digital 

scales were observed in plain view “lying on the right hand side of the bathroom door.” 

(Doc. 32 at 2). According to the inventory sheet, the only places ice was discovered were 

a bedroom closet (in a shoe), under a mattress, in a purse, and in the master bedroom 

closet (in a shoebox). According to the inventory sheet, the only places digital scales 

were discovered were in a purse, on a TV stand, and in the master bedroom closet (in a 

shoebox). (Doc. 32-1 at 1).

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suggests a hearing in order to present evidence from the officers, (Doc. 32 at 6), 

and the Court concurs that such a procedure is necessary in this case. 

Crabtree suggests it does not matter whether any incriminating evidence 

was initially subject to seizure pursuant to the plain view doctrine, because no 

evidence was in fact seized under that rubric; instead, the federal officers waited 

until the Saraland officer returned with the warrant, and she then seized evidence 

pursuant to the warrant, not pursuant to the plain view doctrine. (Doc. 39 at 1-2). 

Crabtree cites no authority for the proposition that evidence subject to lawful 

seizure under the plain view doctrine ceases to be so subject once a warrant is 

obtained and executed. To the extent the question depends on whether the initial 

search was concluded and whether the search pursuant to warrant constituted a 

second search or a continuation of the initial search,

7 its resolution must await the 

presentation of evidence at the hearing.

For the reasons set forth above, the government’s motion for 

reconsideration is denied to the extent based on the constitutional adequacy of the 

warrant or on the good-faith exception to the exclusionary rule. This matter is set 

for an evidentiary hearing on February 23, 2015 at 2:00 p.m. in Courtroom 2-A 

to receive evidence relevant to the government’s plain-view argument. 

DONE and ORDERED this 13th day of February, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 

According to the government’s brief, spoons with apparent drug residue, syringes 

and “other drug paraphernalia” were observed in plain view in “a closet without a door in 

the bathroom.” (Doc. 32 at 2). According to the inventory sheet, the only items found in 

that location were spoons with residue and aluminum boats with residue. (Doc. 32-1 at 

1).

7 See generally United States v. Watchmaker, 761 F.2d 1459, 1472-73 (11th Cir. 

1985) (discussing a seizure made some time after law enforcement first saw the 

incriminating evidence in plain view).

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