Sunday, October 31st, 2010

Dread Herring

United States v. Rosa, No. 09-0636-cr (2d Cir. October 27, 2010) (Walker, Livingston, CJJ, Kaplan, DJ)

Back in June, in a case called Julius, after finding a Fourth Amendment violation, the circuit remanded the case so that the district court could perform a cost-benefit analysis in deciding whether to apply the exclusionary rule. See Julius’ Seizure, posted June 19, 2010. According to Julius, such an analysis is now required under the Supreme Court’s decision in Herring v. United States, 129 S. Ct. 695 (2009). Here, the court took Julius one step further, performing its own Herring analysis and concluding that the exclusionary rule should not apply.


Defendant Rosa was suspected by upstate police officers of molesting local children. Before arresting him, the officers obtained a search warrant for his apartment. While the materials supporting the warrant specified the kinds of offenses of which Rosa was suspected and the particular items sought, the warrant itself did not contain those details and did not incorporate the supporting materials.

Rosa was ultimately charged in federal court with producing child pornography, based on materials recovered from the search. He moved to suppress based, inter alia, on a claim that the search warrant lacked particularity. After the district court denied the motion, he pled guilty pursuant to a conditional plea agreement, and was sentenced to 120 years’ imprisonment.

The Circuit’s Opinion

1. The Warranted Was Invalid

The search warranted here did indeed violate the Fourth Amendment’s particularity requirement. It “lacked the requisite specificity to allow for a tailored search of [Rosa’s] electronic media” because it “failed to link the items to be searched and seized to the suspected criminal activity.” As a result, the “warrant directed officers to seize and search certain electronic devices, but provided them with no guidance as to the type of evidence sought.” Nor did it matter that the warrant application was sufficiently particular; the warrant itself was facially invalid – “unincorporated, unattached supporting documents” do not “cure an otherwise defective search warrant.”

2. The Exclusionary Rule Does Not Apply

Nevertheless, however, the circuit affirmed, after performing a Herring cost-benefit analysis. First, the court concluded that a “reasonably well trained officer” would not be “chargeable with knowledge that this search was illegal” under the circumstances present here. Moreover, the unincorporated, unattached supporting documents indicated that the officers acted in good faith. Those materials were put together during a short time period, and make clear the purpose of the search. The affiant officer also helped execute the search and was therefore “intimately familiar with the contemplated limits of the search.” Finally, there was no evidence that the officers searched for or seized any items that were unrelated to the crimes for which probable cause had been shown, or that the affiant “somehow misled the town justice regarding the facts of the investigation and intended scope of the search.” Thus, applying the exclusionary rule would “serve little deterrent purpose in this case.”

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