UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

______________

No. 91-1406

______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BOBBY RUSSELL,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court

For the Northern District of Mississippi

__________________________________________________ (April 28, 1992)

Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Bobby Russell pled guilty to tax fr aud and other

f raudulent activity. Russell appeals, arguing that the search

warrant used to obtain evidence which played an integral part in

his conviction was defective and that the good faith exception to

warrantless searches does not apply. We disagree, and affirm the

district court's orders overruling Russell's motions to suppress

this evidence.

I

On August 20, 1986, James Baker--a special agent with the IRS

criminal investigation di vision--applied for a search warrant to

the United States Dist rict Court for the Northern District of

Mississippi. The application sought permission to search Russell's1 Russell was the sole proprietor of BHR Publishing in

Tupelo, Mississippi. In his capacity as proprietor of BHR, Russell

published newspapers, magazines, and calendars, and conducted

country music shows for different organizations.

2 On April 19, 1990, a federal grand jury in the Northern

District of Mississippi returned a 226-count Indictment against

Russell and his coconspirator, B everly Bedford. The Indictment

alleges various instances of tax fraud, inc luding fraudulent

deductions and fraudulent use of IRS Form W-2.

3 Baker's application for a search warrant was accompanied by

a thirteen-page affidavit. Part I of the affidavit described

Baker's qualificatio n s and the crimes which Russell allegedly

committed. Part II set forth the underlying facts and

circumstances which provided probable cause for the issuance of the

search warrant. Part III of the affidavit listed the items to be

seized during the search.

4 The warrant, as issued by the Magistrate Judge, was to

include two attachments. The first attachment was to describe the

premises to be searched, and the second attachment was to describe

the items to be seized. These attachments were used because the

warrant form had insufficient space. Where the property to be

seized was supposed to be listed, the search warrant read "(See

attached)" (A copy of Part III of the affidavit from the

application and affidavit for search warrant, see supra note 3, was supposed to be attached). This second attachment, describing the

property to be seized, was omit ted from the search warrant. The

cause of this defect in the search warrant is unknown. Neither the

Magistrate Judge nor Baker could clearly ascertain how the second

attachment was omitted from the sea rch warrant. The Magistrate

Judge's staff was apparently responsible for compiling the

attachmen ts from the affidavit and assembling the warrant. The

district court's finding that Baker acted in good faith ( see infra

note 6) suggests that Baker was not responsible for this oversight.

See also infra note 10.

-2- office 1 and home becaus e he was suspected of tax fraud. 2 The

Magistrate Judge found probable cause and issued a search warrant. 3

The search warrant wa s executed on Russell's residence and

place of business the next day. The warrant served on Russell and

the warrant in the Magist rate Judge's files, however, failed to

include the second attachmen t describing the items to be seized. 4

During the search, however, Baker posted a copy of the list of5 S ee Russell v. United States

, 649 F. Supp. 1402 (N.D. Miss.

1986).

6 Prior to his appeal, the district court reconsidered the

suppression issue in light of the affidavit of Bill Gibson, a special agent with th e Internal Revenue Service. Gibson alleged

that on the night of August 20, 1986--the day before the warrant

was executed--he met with Baker, who had applied for the warrant to

search Russell' s house and office. Gibson allegedly told Baker

that the warrant did not contain a list of items authorized to be

seized. The district court considered Gibson's testimony, and

entered an opin ion overruling Russell's supplemental motion to

suppress. In its order, the district court stated that there was

nothing in th e record, including the affidavit of Gibson, to

indicate that Baker sought the warrant in anything other than good

faith.

On appeal, Russell reasserts that Gibson's affidavit

indicates a lack of good faith on Baker's part. As we have noted

infra note 10, the facts show that Baker understood that the search

and seizure was limited to the premises and items listed in the

affidavit, and that the scope of the intended search and seizure

was not exceeded. Therefore, we do not agree with Russell that

Baker either wilfully served a warrant he knew to be defective or

that he was ignorant of the Constitution. Moreover, the district

court's fact findings regarding Bakers' good faith--findings

supported by the record ( s ee infra note 10)--are not clearly

erroneous.

-3- items to be seized, and made a computerized inventory of each item

actually seized from Russell's house and office. When the search

was completed, Baker served Russell with a copy of the warrant and

a copy of the inventory of the items seized. At trial, Russell

moved to suppress the evidence seized on the ground that the

warrant--which did not include a list of items to be seized during

the search--was fatally defective. The district court denied

Russell's motion and h eld that the evidence should not be

suppressed. 5 Russell appeals. 6-4- II

Russell contends that the evidence se ized should have been

suppressed because the search warrant--missing the attachment

listing and describing the items to be seized ( see supra notes 3-

4)--was defective and because the warrant was not obtained and

executed in good faith. Our review of the objective reasonableness

of an officer's reliance on a search warrant is a question of law

reviewable de novo, and the underlying facts upon which that

determination is based is reviewed for clear error. S ee United

States v. Maggitt

, 778 F.2d 1029, 1035 (5th Cir. 1985), cert.

d enied

, 476 U.S. 1184, 106 S. Ct. 2920 (1986); United Stat es v.

Tedford

, 875 F.2d 446, 448 (5th Cir. 1989) (citations omitted)

(this court accepts facts underlying the trial court's finding of

good faith unless clearly erroneous; the court's ult imate

determination that officers acted in good faith is a conclusion of

law subject to de novo review).

The Fourth Amendment to the Constitution states that warrants

shall particula rly describe the place to be searched, and the

person or things to be seized. Rule 41(c) of the Federal Rules of

C riminal Procedure states that a warrant shall identify the

property or person to be seized and name or describe the person or

place to be searched. S ee Fed. R . Crim. P. 41(c). In their

briefs, the parties do not disagree that, because the warrant in

this case did not include a list of the items to be s eized as is

required by the Fourth Amendment and Rule 41(c) of the Federal

Rules of Criminal Procedure, the warrant was defective. Therefore,-5-

we will only determine whether the good faith exception to the

exclusionary rule applies.

The purp ose of the exclusionary rule is to deter police

misconduct. See United States v. Leon , 468 U.S. 897, 916, 104 S.

Ct. 3405, 3417 (1984). The Court has stated that the exclusionary

rule should not be applied to suppress evidence if the evidence was

obtained by officers acting in objectively reasonable reliance on

a subsequently invalidated search warrant. S ee id. at 922-23,

104 S. Ct. at 3420; Massachusetts v. Sheppard , 468 U.S. 981, 987-

88, 104 S. Ct. 3424, 3427 (1984) (citation omitted). However, this

good faith exception does not apply if: (1) in issuing the warrant

the magistrate is misled by information in the affidavit that the

affiant knows is false or would have known was false except for his

reckless disregard of the truth; (2) the issuing magistrate wholly

abandons his judicial role; (3) the warrant is based on an

affidavit so lacking in indicia of probable cause that official

belief in its existence is entirely u nreasonable; or, (4) the

warrant is so facially defici ent in failing to particularize the

place to be searched and things to be s eized that the executing

officers cannot reasonably presume it to be valid. S ee Leon

,

468 U.S. at 923, 104 S. Ct. at 3421 (citations omitted).

The Gov ernment refers us to M assachusetts v. Sheppard

, 468

U.S. 981, 104 S. Ct. 3424 ( 1984), where the Court discussed a

situation somewhat similar to that in this case. In S heppard

, the

Court affirmed the execution of a warrant that authorized a search

for "controlled substances," but was actually meant to enable a7 See supra note 4.

8 See supra note 6.

-6- search for evidence of a murder. The judge attempted to modify the

warrant, but failed to incorporate an affidavit stating the items

to be searched for. I d. at 986-87, 104 S. Ct. at 3426-27. In

holding that the evidence was properly admitted notwithstanding the

defect in the warrant, the Court stated that the police conduct was

objectively reasonable and largely error free, and that it was the

judge, and not the police officers, who made the critical mistake.

Id. at 990-91 , 104 S. Ct. at 3429; s ee also United States v.

Anderson

, 851 F.2d 384, 388-89 (D.C. Cir. 1988), cert. denied

, 488

U.S. 1012, 109 S. Ct. 801 (1989) (discussing Sheppard ). In

Sheppard

, the Court noted that suppressing evidence becaus e the

judge failed to make all the necessary clerical corre ctions,

despite his assurance that such changes would be made, would not

serve the deterrent function that the exclusi onary rule was

designed to achieve. S ee Sheppard

, 468 U.S. at 990-91, 104 S. Ct.

at 3429. In this case, we likewise see nothing to be gained by

laying fault for this apparent clerical error at Baker's feet. 7

Russell's arguments primarily focus on the objective

reasonableness of Baker in relying on the defective warrant. He

argues that Baker did not do all that could be reasonably expected

to rectify the defective warrant. According to Russell, Baker knew

about the missing list of items to be seized because another agent

had pointed it ou t to him the night before the search. 8 Russell

contends that, when Baker spoke to the Magistrate Judge on the9 Russell also argues that Baker's misunderstanding about the

necessity for the list to be attached to the warrant does not

justify the application of the good faith exception. He asserts

that the warrant was so defective that a reasonably w ell-trained

agent could not have been expected to rely on the warrant.

Likewise, Russell contends that the search gros sly exceeded the

scope of the probable cause affidavit.

1 0 Baker prepared and presented an application for a search

warrant which was supported by an affidavit that demonstrated

probable cause and set forth the place to be searched and the items

to be seized. Specifically, the direct examination of the

Magistrate Judge reveals the following exchange:

Q. During the course of the hearing concerning this

warrant, what did you considering in issuing the warrant?

A.

. . . I read the affidavit prepared by the special

agent and executed before me

. . . I looked at the

description of the property. I look at the itemized list

of things to be sei zed. I read and studied the facts,

the underlying facts of probable cause. And based on

looking at the description, I then looked at the search

warrant and I signed it, after considering all of the

things stated in the affidavit.

Q. Did you make a finding of probable cause?

A. I did make a finding of probable cause. And I looked

at the search warrant and signed it.

Record on Appeal, vol. II at 13, United States of America v. Bobby

Russell

, No. 91-1406 (5th Cir. filed Apr. 16, 1991) ["Record on Appeal"] (direct examination of Magistrate Judge):

The record establishes that the search warrant signed by the

Magistrate Judge contained an attachment identifying the place to

be searched, but did not have the list of items to be seized. S ee Record on Appeal (Government's Exhibit #2: copy of search warrant

that was signed and executed by Magistrate Judge on August 20,

1986). Neither Baker nor the Magistrate Judge realized that the

list of items to be seized contained in the affidavit was not

attached to the warrant as finally assembled, as is supported by

the following testimony:

Q. Now, at the time you signed the warrant, were you

aware that the things to be seized were inadvertently

omitted from the - -

-7- morning of the search, Baker should have asked about the missing

list of items. 9 We find these arguments unpersuasive.

As the Government notes, the evidence indicates that the

warrant--defective because of clerical error--was executed in good

faith. 10 As the Court noted in S heppard

, the exclusionary rule wasA. I was not at that time. I was not aware of that, at

that time, that that has been om itted from the search

warrant.

Q. Had you known that, would you have signed the

warrant?

A. I would have seen to it that it would have been

attached before I signed it.

* * *

Q. Do you have any idea of what happened to the list

that should have been attached to the warrant?

A. I cannot recall.

* * *

A. So I went back in my file, when you filed your

motion, and I did not have a copy of those items attached

to my copy of the search warrant. I do recall seeing

those items listed in the affidavit.

Record on Appeal at 1 5, 17, 23 (direct and cross examination of

Magistrate Judge); id. at 63 (cross examination of Baker):

Q. Well, you understood that you had a copy of the whole

warrant, didn't you?

A. Actually, I later learned during the execution when

I handed him the return that in fact the attachment was

not on there. But I didn't question the fact that the

attachment for items to be seized was not on the warrant.

And the reason I didn't question it was because of a

f airly unusual event, at least in my experience with

warrants is concerned, at the time I was handed the

document to be served on Mr. Russell, at my request,

prio r to going to the Magistrate's Office, Mr. Dawson

asked the Magistrate if he would seal the file. The file

include d necessarily the affidavit. Because Item 3 of

the affidavit was in fact the item 2 attachment to the

warrant. When I handed Mr. Russell the file, even though

I noticed it wasn't on there, I assumed it was omitted by

the Magistrate because it didn't have to be attached.

Q. You assumed that when you left the Magistrate's

office?

A. No. I didn't even know it wasn't on there. I didn't

think about it, whether it was or wasn't. I never looked

at the file. I never looked at the document given to me

by the Magistrate at all until 9:50 pm on the 21st of

August when I gave it to Mr. Russell.

There is also an abundance of other testimo ny in the record to

suggest that the Magistrate Judge and Baker were aware of the

warrant's limitations and acted accordingly:

-- T he facts indicate that the Magistrate Judge and

Baker understood that the search and seizure was limited

to the premises listed and the list of items contained in

the affidavit:

-8-Q. Now, Magistrate Gillespie, through the

process you've talked about issuing this

particular warrant, what was your understanding about the searching and seizing

authority of Special Agent Baker?:

A. That under the warrant that he had the

authority to search the property described in

the search warrant and seize the items listed

therein.

Q. Would that list be identical to the list

attached to the affidavit?

A. That's right.

Record on Appeal at 17 (direct examination of Magistrate

Judge); id. at 53 (direct examination of Baker):

Q. Now, what did you believe was your

authority to search with respect to the place

to be searched?

A. I was convinced that my authority to

search the premises . . . was limited solely

to th e items listed in the affidavit that I

filed with the Magistrate under oath and only

Section 3 items subject to being seized.

-- The facts show that, on the morning of the search,

Baker called the Magistrate Judge to add an item that had

been omitted from the affidavit's list:

Q. Did you call the Magistrate?

A. Yes. I was specifically concerned about

adding the item to the warrant. I knew that I

cou ld not add the item to the warrant or

search for it if in fact I did not have the

approval of the Magistrate.

* * *

A. At approximately 10:06 am I called the

Magistrate. At which time I informed the

Magistrate that due to what appeared to be a

typing error in the attachment of items to be

searched to the affidavit, which included the

warrant . . . there was omitted an item I for

Equipment or Devices used to prepare any

document or record desc ribed herein. And I

have the original, a copy of the original

document that I wrote on

. . . which is the

third page of this document, states "Added

10:06 am, 8-21-86 A.P.P. telephone Magistrate

Gillespie."

Id. at 45 (direct examination of Baker).

-- I n addition, the subsequent seizure of items from

Russell's home and business was limited to the items from

-9-the list in the affidavit:

Q. Now, these five agents, you said had the

authority to search and therefore given a copy

of the items to be seized?

A. That's correct. They were the only

persons. Q. Who was the only person who had authority

to make the judgment to seize an item?

A. I was the only person on the entire search

team that was authorized physically to make a

decision to seize any item.

Q. Now, did you have a backup for that

decision?

A. Yes, I did. I had a [protective] device,

as I thought of it at the time, in that I had

another agent checking my decision regarding

the applicability of the it em to be seized

against the items listed in the inventory.

Q. Who was that?

A. Special Agent Ransig. And I gave him the

origi nal copy of the items to be seized

section, which I had in my possession, and I

put his name at the top of that document,

which he kept in his possession the entire

time the search was executed.

Q. Did Mr. Ransig also have any additional

duties during the search with respect to

making a return?

A. Yes, he did. The reason that I had him

postured to double check any decision I made

was because his primary duty was not to search

but inventory on a computer terminal, which we

set up on the premis es of Mr. Russell's

business, all of items that were subject to

being seized.

Q. What advantage did that give to you in the

course to the owner of the premises?

A. It insured that only the items subject to

seizure were in fact being seized.

Q. What about making an immediate return

computer printout?

A. That was primarily the reason that we use

the computer in the first place was so that we

could lend a much more accurate, complete and

quicker return after execution of the search.

Id. at 47-48 (direct examination of Baker).

-- Baker also posted a copy of the list of items to be

seized on the wall of Russell's office:

A. The particular one, [copy of items to be

-10-seized] which I have is a copy of, was

actually posted on the wall i n the room

described as Room 1 on the drawing of the

premises diagram of the floor plan right next

to the computer, right across , I would say

within six or seven feet of Mr. Ru s sell's

desk.

Id. at 48-49 (direct examination of Baker).

-- A nd finally, Baker orally advised Russell of the

items to be seized when he first arrived and then left

Russell a computerized listing of the items to be seized:

Q. Now, was a copy of the warrant left with

Mr. Russell?

A. Yes, it was. Everything I was given by

the Magistrate to serve on Mr. Ru ssell was

given to Mr. Russell. And, in addition, this

computerized list of the return.

Q. So the copy of the warrant, as issued by the

Magistrate, was served on Mr. Russell?

A. Yes.

Q. And, in addition, the computerized

printout of things that had actually been

seized was left with Mr. Russell?

A. That's correct.

Q . Now, in addition to that, did you orally

advise Mr. Russell of the things that were

going to be seized?

A. Yes.

Id. at 49 (direct examination of Baker).

1 1 S ee also United States v . Anderson , 851 F.2d 384, 388-89

(D.C. Cir. 1988). In A nderson

, an affidavit prepared in support of

a state search warrant specified in detail the items to be seized,

but the affidavit was not attached to or incorporated by the

warrant. In holding that the investigating officers had an

objectively reasonable basis for their mistaken belief that their

search of a motel room was authorized by a valid warrant, the D.C.

Circuit noted that: (1) the investigati ng officers presented the

affidavit to a neutral judge along with an affidavit submitted

earlier in support of a federal warrant, (2) the search was

executed by the same officers who had prepared the affidavits, and

(3) the scope of the search was limited to the items listed in the

-11- adopted to deter unlawful searches by police, not to punish the

clerical errors of magistrate s and judges. S ee Massachusetts v.

Sheppard

, 468 U.S. 981, 990, 104 S. Ct. 3424, 3429 (1984) (citation

omitted). 11 Accordingly, we find that the Leon good faithaffidavits. Id.

Similarly, in U nited States v. Maxwell

, 920 F.2d 1028,

1034 (D.C. Cir. 1990), the agent who applied for a search warrant

prepared an affidavit detailing the illegalities of which the

defendant was suspected and presented it to a neutral and detached

magistrate. The magistrate determined that probable cause existed

to search the defendant's apartment, but neglected to incorporate

the agent's affidavit into the warrant. Id. The D.C. Circuit

noted that, when the magistrate signed the warrant at issue with

the affidavit apparently attached although not specifically

incorpo rated into the search warrant, the agent could have

reasonably concluded that the scope of the warrant was limited to

materials support ing the allegations contained in the affidavit.

Id. The court also noted that the same agent who prepared the

affidavit and obtained the warrant also oversaw the e xecution of

the warrant. I d. Thus, the court held that the agents took every

step that could reasonably be expected of them, and that a

r easonable police officer would have concluded that the war rant

a uthorized a search for the materials outlined in the affidav it.

Id. (citations omitted).

-12- exception applies, and we affirmthe district court's orders

overruling Russell's motions to suppress.

III

For the foregoing reasons, we AFFIRM.