IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 98-11097 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARVIN B CHERNA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________
August 4, 1999
Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
KING, Chief Judge:
Defendant-appellant Marvin B. Cherna appeals his conditional
plea of guilty to one count of mail fraud in violation of 18
U.S.C. § 1341 on the ground that the district court erred in
denying his motion to suppress evidence obtained pursuant to an
allegedly unconstitutional search warrant. Because we find that
the executing officers acted in objectively reasonable good-faith
reliance on the warrant, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
In 1997, defendant-appellant Marvin B. Cherna was the
executive director of Help Hospitalized Children’s Fund (HHCF)
and American Veterans’ Relief Fund (AVRF), two charities based in
Dallas, Texas. On May 19, 1997, Special Agent Loretta Smitherman of the Federal Bureau of Investigation (FBI) applied to
Magistrate Judge John Tolle of the Northern District of Texas for
a warrant to search Cherna’s business and residence, both of
which, she alleged, were located at 7610 Meadow Oaks Drive in
Dallas, Texas. The application for the warrant referred to two
documents: Attachment A, which set forth the place to be
searched, and Attachment B, which described the evidence to be
seized. Smitherman’s affidavit in support of probable cause was
also attached to the application. Without hearing oral
testimony, Magistrate Judge Tolle issued a search warrant that
authorized officers to search the premises described in
Attachment A and to seize the property described in Attachment B.
Attachment A stated that the “offices of HELP HOSPITALIZED
CHILDREN’S FUND (HHCF) and AMERICAN VETERANS’ RELIEF FUND (AVRF)
are located at 7610 Meadow Oaks Drive, Dallas, Texas including
all rooms/parts of the residence and the attached garage.”
Attachment B described the evidence subject to seizure thus:
“Records and items related to Fraud by Wire and Mail Fraud as
described in the affidavit of FBI agent Loretta Smitherman,
within the premises of 7610 Meadow Oaks Drive, Dallas, Texas,
including, but not limited to the following, however maintained,”
followed by a list of twenty-six categories of evidence,
primarily written and electronic documents. Smitherman’s
affidavit was not, however, physically attached to the search
warrant.
2 The next day, May 20, 1997, six FBI agents executed the
search warrant under Smitherman’s direction. The agents were
required by FBI policy to read the warrant, the accompanying
documents, and the affidavit prior to participating in the search
and to sign the back of the warrant to show that they had done
so. Smitherman did not know whether several other FBI employees
who assisted in the search but did not participate in seizing
evidence read the affidavit. Cherna was given a copy of the
warrant and Attachments A and B but, although it was present in
Smitherman’s vehicle throughout the search, he was not shown the
affidavit because it had been placed under seal. Upon entering
the premises at 7610 Meadow Oaks Drive, the agents determined
that four rooms were being used as office space and that the
garage had been converted into a telemarketing room and a storage
room for records. They did not limit their search to only these
rooms, however, but also searched all areas in the residence
where records might be stored, including the bedroom, kitchen,
and living room. At the conclusion of the search, the agents
left with Cherna the warrant, the attachments, and an inventory
of seized property.
On March 3, 1998, a grand jury in the Northern District of
Texas returned an indictment charging Cherna with thirteen counts
of mail fraud perpetrated by soliciting funds for two non-profit
entities and then converting the contributions received to his
own use. Cherna filed a motion to suppress all evidence seized
in the May 20, 1997 search. The district court denied this
3 motion, concluding that “Attachment B to the search warrant sets
out with sufficient particularity twenty-six types of items to be
seized so as to remove the warrant from the purview of a general
warrant” and, in the alternative, that “the officers executing
the warrant acted in good faith and in reasonable reliance upon
the warrant’s validity, thereby avoiding the Fourth Amendment’s
exclusionary rule.” Cherna then entered a conditional plea of
guilty to one count of the indictment, reserving his right to
appeal the district court’s adverse ruling on his motion to
suppress. The district court sentenced him to a four-year prison
term and a $12,500.00 fine. Cherna appealed.
II. STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, we review
factual findings for clear error and the trial court’s
conclusions as to the constitutionality of law enforcement action
and the sufficiency of a warrant de novo. See United States v.
Kelley, 140 F.3d 596, 601 (5th Cir.), cert. denied, 119 S. Ct.
186 (1998). The district court’s determination of the
reasonableness of a law enforcement officer’s reliance upon a
warrant issued by a magistrate--for purposes of determining the
applicability of the good-faith exception to the exclusionary
rule--is also reviewed de novo. See United States v.
Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992).
III. DISCUSSION
On appeal, Cherna attacks the search warrant on two grounds.
First, he contends that it is an unconstitutional general
4 warrant. Cherna argues that the warrant’s general grant of
authority to seize “[r]ecords and items related to Fraud by Wire
and Mail Fraud as described in the affidavit of FBI agent Loretta
Smitherman . . . , including, but not limited to” twenty-six
categories of evidence does not describe the evidence sought with
sufficient particularity. Although the warrant refers to
Smitherman’s affidavit, Cherna contends, the affidavit cannot
save the warrant because it was neither attached thereto nor
shown to Cherna. Second, Cherna maintains that the warrant was
unsupported by probable cause.
We employ a two-step process for reviewing a district
court’s denial of a motion to suppress when a search warrant is
involved. See United States v. Lampton, 158 F.3d 251, 258 (5th
Cir. 1998), cert. denied, 119 S. Ct. 1124 (1999). First, we
determine whether the good-faith exception to the exclusionary
rule announced in United States v. Leon, 468 U.S. 897 (1984),
applies. If so, we end our analysis and affirm the district
court’s decision to deny the motion to suppress. See
Satterwhite, 980 F.2d at 320. If not, we proceed to the second
step, in which we “‘ensure that the magistrate had a substantial
basis for . . . concluding that probable cause existed.’” United
States v. Pena-Rodriguez, 110 F.3d 1120, 1129 (5th Cir.) (quoting
Illinois v. Gates, 462 U.S. 213, 238-39 (1983)), cert. denied,
118 S. Ct. 71 (1997). If the good-faith exception applies, we
need not reach the question of probable cause. See id.; see also
United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988)
5 (“Principles of judicial restraint and precedent dictate that, in
most cases, we should not reach the probable cause issue if a
decision on the admissibility of the evidence under Leon will
resolve the matter.”).
We begin our analysis of the good-faith exception with Leon.
In that case, the Supreme Court held that the Fourth Amendment
does not require the suppression of evidence obtained as a result
of objectively reasonable reliance on a warrant, even if the
warrant is subsequently invalidated. See Leon, 468 U.S. at 922.
Although the Court noted that “[w]hen officers have acted
pursuant to a warrant, the prosecution should ordinarily be able
to establish objective good faith without a substantial
expenditure of judicial time,” id. at 924, it also cautioned that
“the officer’s reliance on the magistrate’s probable-cause
determination and on the technical sufficiency of the warrant he
issues must be objectively reasonable, and it is clear that in
some circumstances the officer will have no reasonable grounds
for believing that the warrant was properly issued,” id. at 922-
23 (footnotes and citation omitted). Thus, the good-faith
exception does not apply when “the magistrate or judge in issuing
a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except for
his reckless disregard of the truth.” Id. at 923. Similarly,
suppression remains an appropriate remedy where the issuing
magistrate “wholly abandoned his judicial role in the manner
condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979);
6 in such circumstances, no reasonably well trained officer should
rely on the warrant.” Id. Nor is the exception available to an
officer who relies on a warrant based on an affidavit “‘so
lacking in indicia of probable cause as to render belief in its
existence entirely unreasonable.’” Id. (quoting Brown v.
Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring)).
“Finally, depending on the circumstances of the particular case,
a warrant may be so facially deficient--i.e., in failing to
particularize the place to be searched or the things to be
seized--that the executing officers cannot reasonably presume it
to be valid.” Id.
Cherna contends that the last three situations obtain here.
First, he asserts that “the Warrant represents a complete
abdication by the Magistrate Judge of his authority to determine
what can and cannot be seized.” As we explained above, Leon
teaches that the good-faith exception will not apply where the
magistrate conducted himself as did his counterpart in Lo-Ji
Sales. In that case, an investigator purchased two films from a
so-called “adult” bookstore, concluded that they violated state
obscenity laws, and applied for a warrant to search the store,
representing that not only copies of the films but other “similar
items” would be found there. See Lo-Ji Sales, 442 U.S. at 321.
The town justice viewed the films and issued a search warrant
authorizing seizure of copies of the two films and “[t]he
following items that the Court independently [on examination] has
determined to be possessed in violation of Article 235 of the
7 Penal Law,” followed by a blank space. Id. at 321-22. The
justice then accompanied law enforcement officers to the store
and conducted a six-hour search during which he examined films,
books, and magazines free of charge and ordered the officers to
seize such items as he thought there was probable cause to
believe obscene. See id. at 322-23. The Supreme Court held that
the search violated the Fourth Amendment. It concluded that
although “a warrant authorized by a neutral and detached judicial
officer is a more reliable safeguard against improper searches
than the hurried judgment of a law enforcement officer engaged in
the often competitive enterprise of ferreting out crime,” id. at
326 (internal quotation marks omitted), the town justice in Lo-Ji
Sales “did not manifest that neutrality and detachment demanded
of a judicial officer when presented with a warrant application
for a search and seizure,” id. Instead, he conducted himself as
an “adjunct law enforcement officer.” Id. at 327.
After carefully reviewing the record, we conclude that there
is no evidence that the issuing magistrate in this case abandoned
his role as a neutral and detached judicial officer within the
meaning of Lo-Ji Sales. Indeed, Cherna does not so much as
allege that Magistrate Judge Tolle was biased. Cf. United States
v. Breckenridge, 782 F.2d 1317, 1321 (5th Cir. 1986) (“The
‘absence of a neutral and detached magistrate’ exception to
Leon’s good faith may also extend to situations in which officers
while presenting the affidavit realize that the magistrate served
only to rubber-stamp a previous decision reached by the
8 police.”). Nor does he assert that the magistrate judge
participated in the seizure of evidence so as to become an
“adjunct law enforcement officer.” Lo-Ji Sales, 442 U.S. at 327;
cf. United States v. McKeever, 906 F.2d 129, 131-32 (5th Cir.
1990) (considering defendant’s argument that evidence should be
suppressed because magistrate was a former reserve police officer
and visited the site of the search). We simply see no evidence
that Magistrate Judge Tolle “wholly abandoned his judicial role
in the manner condemned in Lo-Ji Sales . . . .” Leon, 468 U.S.
at 923.1
Cherna also argues that the good-faith exception does not
apply in this case because the warrant was insufficiently
supported by a showing of probable cause. Under Leon, an officer
may not reasonably rely on a warrant “so lacking in indicia of
probable cause as to render belief in its existence entirely
unreasonable.” Leon, 468 U.S. at 923 (internal quotation marks
omitted). In general, “[a]n officer may rely in good faith on
the validity of a warrant so long as the warrant is supported by
1 Cherna does suggest that Magistrate Judge Tolle abandoned his judicial role by issuing a search warrant that was insufficiently particular and supported by probable cause to pass Fourth Amendment muster. Under Leon, however, excessive generality and lack of probable cause are independent reasons not to apply the good-faith exception, and we therefore consider Cherna’s arguments in this regard below. Cf. United States v. Tedford, 875 F.2d 446, 449-50 (5th Cir. 1989) (analyzing as a single issue defendant’s contentions that judge “abandoned his detached and neutral role by merely ratifying the officers’ conclusions and issuing the warrant on the basis of ‘bare bones’ affidavits” and that “officers’ reliance on the warrant was unreasonable because the underlying affidavits were completely ‘lacking in indicia of probable cause’”).
9 more than a bare bones affidavit.” United States v. Cisneros,
112 F.3d 1272, 1278 (5th Cir. 1997) (internal quotation marks
omitted). In evaluating whether the affidavit in this case
justifies application of the good-faith exception, however, we
must keep in mind that it is more difficult to demonstrate
probable cause for an “all records” search of a residence than
for other searches. United States v. Humphrey, 104 F.3d 65, 68-
69 (5th Cir.), cert. denied, 520 U.S. 1235 (1997). In Humphrey,
a fraud case, we upheld a warrant authorizing the seizure of all
of the defendants’ financial and business records from their
residence because a three-page affidavit from an FBI agent
demonstrated that the fraud was pervasive, that there was
considerable overlap between the defendants’ personal and
business lives, especially in that they used their home as an
office, and that the defendants provided services about which
there had been many complaints, cashed a large number of
cashier’s checks, and stored cash under their mattress. Id. We
emphasized, however, that our holding “should not be read as a
broad authorization for the issuance of all records searches of
homes. . . . [I]t is only in extreme cases, such as the one
before us today, that we will uphold warrants of this type.” Id.
at 69 n.2.
Even in light of the fact that the warrant in this case
authorized an all records search of Cherna’s home, we do not
think probable cause was so lacking as to “render official belief
in its existence entirely unreasonable.” Leon, 468 U.S. at 923
10 (internal quotation marks omitted). The search warrant
application included an eleven-page affidavit from FBI Special
Agent Loretta Smitherman. Smitherman stated that she had been an
FBI agent for six years. She had investigated Cherna, executive
director of HHCF and AVRF. She discovered that in 1995 and 1996,
HHCF solicited donations by representing that the money would
benefit hospitalized children in the donor’s community and that
HHCF was a member of certain prestigious charitable
organizations. In many instances, however, HHCF representatives
were unable to name any hospitals that would receive donations,
and hospital administrators in the relevant communities denied
having heard of or receiving assistance from HHCF. Furthermore,
representatives of several charitable organizations in which HHCF
claimed membership stated that HHCF neither belonged to those
groups nor had permission to use their names. HHCF maintained
numerous local bank accounts, despite its own accountant’s advice
that it was financially and logistically preferable to have only
one account, because, in Cherna’s words, “the donors want to feel
as if the money they are pledging is being spent in there [sic]
area of the country.” Smitherman also discovered that, although
tax records showed that HHCF executives served without
compensation, HHCF regularly paid Cherna and an HHCF board member
thousands of dollars, and numerous checks for what appeared to be
personal expenses had been written on HHCF’s account.
In addition, Smitherman related that she had reviewed
ninety-three affidavits, provided to her by the Massachusetts
11 Attorney General’s Office, in which private citizens described
how AVRF telemarketers urged them to donate money, representing
that (1) their donations would benefit local veterans’ hospitals,
(2) retired veterans would pick up the donations, and (3) the
donations would be used to purchase medical supplies for
hospitalized veterans. In fact, AVRF donated only $650.00 to
Massachusetts veterans’ hospitals during the years 1994 through
1996. AVRF’s nationwide donations to hospitals run by the United
States Department of Veterans’ Affairs for the tax year ended
January 31, 1996 totaled only one-tenth of one percent of its
total income.
Finally, Smitherman averred that she had reason to believe
that HHCF and AVRF had been and still were being operated out of
Cherna’s residence because, on February 13, 1997, two employees
of Thomas Ewbank’s accounting firm had been inside Cherna’s home,
where they observed two rooms set up as offices for HHCF and
AVRF, and an auditor from the firm was scheduled to meet with
Cherna there on the date Smitherman executed her affidavit, May
19, 1997. Furthermore, on April 18, 1997, a woman identifying
herself as an AVRF employee accepted service of process at
Cherna’s home, and as of May 11, 1997, the electric account for
the residence was listed in HHCF’s name. Smitherman concluded
that, after reviewing her affidavit in light of Humphrey with two
Assistant United States Attorneys, she believed that Cherna’s
business activities were “merely a scheme to defraud” and that
12 there was “obviously considerable overlap of Cherna’s personal
life and business life.”
Smitherman’s affidavit was not so “bare bones” as to render
all belief in the existence of probable cause for an all records
search unreasonable. Smitherman averred that Cherna operated his
businesses from his home, that he used business funds to pay for
what appeared to be personal expenses, and that HHCF and AVRF
misrepresented the nature and amount of their charitable work in
an effort to increase donations. She requested permission to
seize all records and items relating to the mail and wire fraud
scheme she believed to be in progress. Cf. Humphrey, 104 F.3d at
68-69 (finding probable cause for an all records search of
defendants’ home based on evidence that they used residence as
office, engaged in suspicious financial transactions and provided
services about which there had been many complaints). Although
many of the misrepresentations described in Smitherman’s
affidavit took place in 1995 and 1996, one to two years before
Smitherman applied for the warrant, she explained that, based on
her conversations with employees of Ewbank’s accounting firm, the
acceptance of process by an AVRF employee at Cherna’s residence
only a month before the application, and the evidence that, a
week before the search, the electric account for Cherna’s
residence was in the name of HHCF, it was likely that the records
sought were still located at Cherna’s home. Especially in light
of the facts that HHCF and AVRF were ongoing businesses and that
financial records typically are retained for long periods of
13 time, we cannot say that Smitherman’s affidavit was based on
stale information. See United States v. Webster, 734 F.2d 1048,
1056 (5th Cir. 1984) (“[W]hen the information of the affidavit
clearly shows a long-standing, ongoing pattern of criminal
activity, even if fairly long periods of time have lapsed between
the information and the issuance of the warrant, the information
need not be regarded as stale.”); United States v. Freeman, 685
F.2d 942, 952 (5th Cir. 1982) (recognizing that bank records are
likely to be kept for long periods of time). Of course, there
could be, as Cherna argues in his brief, innocent explanations
for the evidence Smitherman discovered, but an affidavit need not
present a watertight criminal case to support good-faith reliance
on a warrant.2
Finally, Cherna maintains that the warrant is so lacking in
particularity that the executing officers could not reasonably
have presumed it to be valid. Cherna points out that the warrant
authorized the seizure of “[r]ecords and items related to Fraud
by Wire and Mail Fraud as described in the affidavit of FBI
Loretta Smitherman” but failed to include the affidavit as an
attachment. No law enforcement officer, he claims, could
reasonably believe that a warrant for records and items relating
2 Indeed, we have emphasized that probable cause to search is present where there is adequate “‘information to allow the conclusion that a fair probability existed that seizable evidence would be found’” on the premises. Cisneros, 112 F.3d at 1279 (quoting United States v. Restrepo, 994 F.2d 173, 189 (5th Cir. 1993)). While Cherna’s arguments might have been convincing to a jury had he gone to trial, they do not convince us that the lack of probable cause was so obvious as to deprive the officers of the good-faith exception to the exclusionary rule.
14 to the broad crimes of mail and wire fraud is sufficiently
particular to satisfy the Fourth Amendment.
The seminal Supreme Court case on particularity and the
good-faith exception is Massachusetts v. Sheppard, 468 U.S. 981
(1984). That case concerned a warrant authorizing a search for
“controlled substances” that was accompanied by a detailed
affidavit indicating that the affiant wished to search for
evidence relating to a homicide investigation. See id. at 985-
86. The defendant complained that the warrant was insufficiently
particular. See id. at 987. It was undisputed, however, that
the issuing judge and the executing officers knew the contents of
the affidavit and the focus of the search and that the affiant
had, in fact, pointed out the discrepancy to the judge, who had
assured him that the necessary corrections would be made. See
id. at 986. The Court concluded that the officers’ good-faith
reliance on the warrant was objectively reasonable because the
affiant prepared an affidavit that was reviewed and approved by
the district attorney, presented the affidavit to a neutral
judge, who found that it established probable cause for the
search requested by the affiant, and informed the judge that
changes might need to be made. He then observed the judge made
some changes and received the warrant and the affidavit. See id.
at 989. “At this point, a reasonable police officer would have
concluded . . . that the warrant authorized a search for the
materials outlined in the affidavit.” Id.
15 We have considered similar situations in this circuit. In
United States v. Beaumont, 972 F.2d 553, 560 (5th Cir. 1992), for
example, the warrant contained only a generalized statement that
“evidence of the commission of a criminal offense as well as
contraband abd [sic] the fruits of crime” were to be seized. The
warrant was accompanied by an affidavit that contained a detailed
description of the items sought, but it did not refer to the
affidavit at all. See id. We found that although a warrant that
relies on an affidavit to meet the Fourth Amendment particularity
requirement must incorporate the affidavit by reference, see id.
at 560-61, the good-faith exception applied:
In the instant case, there was a probable cause determination made by the state judge, the affidavit provided specific information of the objects of the search, the executing officer was the affiant, the additional officers making the search knew what was to be searched for, and, finally, the warrant could easily have been made valid by the insertion of the phrase “see attached affidavit.”
Id. at 561 (footnote omitted). For the same reasons, we held in
United States v. Shugart, 117 F.3d 838, 845-46 (5th Cir.), cert.
denied, 118 S. Ct. 433 (1997), that officers reasonably could
have relied on a warrant that was insufficiently particular on
its face and did not incorporate the affidavit on which it was
based.
This precedent convinces us that the warrant in this case
was not so lacking in particularity that the executing officers
could not reasonably presume it to be valid. As in Sheppard,
Beaumont, and Shugart, the issuing judge in this case made a
probable cause determination, the affidavit explained in detail
16 the alleged mail and wire fraud scheme that was the target of the
investigation and search, the officer in charge of the search,
Smitherman, was the affiant, and the other FBI agents who
participated in the search read the affidavit before beginning
it. Even assuming that the absence of the affidavit rendered the
warrant constitutionally defective, this defect could have been
remedied with only minor corrections, such as the attachment of
the affidavit. Cf. Sheppard, 468 U.S. at 990 n.7 (“This is not
an instance in which ‘it is plainly evident that a magistrate or
judge had no business issuing a warrant.’ . . . Indeed, Sheppard
admits that if the judge had crossed out the reference to
controlled substances, written ‘see attached affidavit’ on the
form, and attached the affidavit to the warrant, the warrant
would have been valid.”); Shugart, 117 F.3d at 845-46 (noting
that a warrant that did not “incorporate” an affidavit could have
been made valid with minor corrections, such as a reference to
and attachment of the affidavit); Beaumont, 972 F.2d at 562
(“[T]he warrant could easily have been made valid by the
insertion of the phrase ‘see attached affidavit.’”). Smitherman
was prevented from attaching her affidavit to the warrant or
serving it on Cherna, however, because it had been placed under
seal. In issuing a search warrant and sealing the affidavit on
which the warrant is based, the magistrate judge was essentially
assuring Smitherman that the warrant, unattached to the
affidavit, was sufficient to authorize the search she had
requested. The Fourth Amendment does not demand that the
17 executing officers question his decision and determine for
themselves whether the warrant is, in fact, valid. “Whatever an
officer may be required to do when he executes a warrant without
knowing beforehand what items are to be seized, we refuse to rule
that an officer is required to disbelieve a judge who has just
advised him, by word and by action, that the warrant he possesses
authorizes him to conduct the search he has requested.”
Sheppard, 468 U.S. at 989-90 (footnote omitted).
Nor is this a case in which the non-attachment of
Smitherman’s affidavit made the warrant so obviously defective
that the officers could not reasonably have relied on it. First,
Attachment B, expressly mentioned in the warrant and attached
thereto, referred to Smitherman’s affidavit and described in
considerable detail twenty-six categories of evidence to be
seized. A reasonable executing officer, relying on the
magistrate judge’s issuance of the warrant and sealing of the
affidavit, could have believed that the reference to the
affidavit and the rather lengthy list that followed satisfied the
Fourth Amendment’s particularity requirement. Cf. United States
v. Moser, 123 F.3d 813, 823 (5th Cir.) (approving search warrant
authorizing seizure of “[r]ecords relating to the production,
advertising, ordering, sale, mailing and shipment of material
involved in the use of ‘Certified Money Orders’ by U.S.A. First
and O.M.B., W.D. McCall. Such records, files and promotional
material include but are not limited to . . . .”), cert. denied,
118 S. Ct. 613 (1997).
18 Second, as Cherna concedes, where a warrant relies on an
affidavit to specify the objects of the search, it is not
entirely clear from circuit precedent that the affidavit must be
physically attached to the warrant or served on the defendant.
Compare United States v. Haydel, 649 F.2d 1152, 1157 (5th Cir.
Unit A July 1981) (“If, as is the case here, the warrant is
ambiguous, but fairly directs attention to the place actually
searched, and if 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. The affidavit
must be attached to the warrant so that the executing officer and
the person whose premises are to be searched both have the
information contained in the affidavit, in addition to what is
said on the face of the warrant.”) (citation omitted and emphases
added), opinion corrected on reh’g on other grounds, 664 F.2d 84
(5th Cir. Unit A Dec. 1981), with Shugart, 117 F.3d at 845 (“In
addition, this court has held that the particularity requirement
may be satisfied ‘by reliance on an affidavit when the affidavit
is incorporated by reference into the warrant.’”) (quoting
Beaumont, 972 F.2d at 561) (emphasis added); United States v.
Wuagneux, 683 F.2d 1343, 1351 n.6 (11th Cir. 1982) (noting,
shortly after the Eleventh Circuit split from the Fifth, that
“although the record in Haydel was not entirely clear on whether
the affidavit was physically attached, the record did indicate
that it was available at the search site and that the searching
agents knew what they were looking for” and opining that Haydel
19 “mandates a more flexible approach” than a strict requirement
that the affidavit be physically attached to the warrant or
served on the defendant); United States v. Cook, 657 F.2d 730,
736 (5th Cir. Unit A Sept. 1981) (“The affidavit, which was
referred to and which accompanied the warrant, supplied a
particular description . . . .”) (emphasis added). But see
United States v. McGrew, 122 F.3d 847, 850 (9th Cir. 1997) (“If
the government wishes to keep an affidavit under seal, it must
list the items it seeks with particularity in the warrant itself.
It is the government’s duty to serve the search warrant on the
suspect, and the warrant must contain, either on its face or by
attachment, a sufficiently particular description of what is to
be seized. . . . If the ‘incorporated’ affidavit does not
accompany the warrant, agents cannot claim good faith reliance on
the affidavit’s contents.”); United States v. Dahlman, 13 F.3d
1391, 1395 (10th Cir. 1993) (holding that affidavit could not
cure particularity problem because, inter alia, there was no
indication in the record that affidavit had been “physically
attached to the warrant”). Given the state of the law in this
circuit, we cannot say that the executing officers could not
reasonably rely on the magistrate judge’s issuance of the
warrant, even though he simultaneously sealed the affidavit on
which it was based.
Finally, we must address Cherna’s contention that
Smitherman’s testimony at the suppression hearing “clearly
20 demonstrates the absence of objective good faith.” According to
Cherna,
Agent Smitherman candidly acknowledged that she drafted the Warrant to allow her the unfettered discretion to seize whatever she deemed to be of interest. That is precisely the type of governmental “roaming” that the Fourth Amendment’s particularity requirement was designed to prohibit. Thus, regardless of Agent Smitherman’s subjective intent, the objective record demonstrates that the good faith exception cannot save this Warrant.
(citation omitted). We note as an initial matter that this
argument is more correctly characterized as an allegation that
Smitherman acted in “subjective,” not “objective,” bad faith:
Cherna claims that Smitherman drafted the warrant so as
intentionally to flout the Fourth Amendment’s particularity
requirement. The district court, however, found that “the
officers executing the warrant acted in good faith.” At the
suppression hearing, the following colloquy took place between
Smitherman and Cherna’s counsel:
Q. Can you think of one thing that wouldn’t relate to it? If his entire life is consumed by fraud, wouldn’t everything inside 7610 Meadow Oaks, based upon your affidavit, be subject to seizure under the terms of that warrant?
A. Photographs of his children wouldn’t be seized, you know, religious materials. You want me to make up a list of things that wouldn’t be seized?
Q. No. I think--
A. Anything that didn’t have to do with fraud wouldn’t be seized.
Q. But the question I have is, how would you draw the line if he paid for the camera that took those pictures, paid to develop--cost of those picture with the proceeds of charitable donations, you could seize anything under the terms of this warrant.
21 A. No, only things that had to do--that were evidence of mail fraud and wire fraud.
Q. Okay. As set forth in your affidavit?
A. Yes.
Q. And your affidavit just--I’m going to make this very clear, was never given or supplied to Mr. Cherna?
A. That’s right.
Q. So he had absolutely no way to determine what the scope of your search would ultimately be?
A. No, he did because I gave him the attachment B that is entitled Property to be Seized.
Q. Which describes the property seized to be records and items related to fraud by wire and mail fraud as described in your affidavit, which was not supplied to him?
A. Yes. But then there are--there is several pages describing the items that will be seized.
Q. Well, are those all of the items that will be seized? Your paragraph--your lead-in paragraph to attachment B says including but not limited to the following.
A. It’s--
Q. Doesn’t that provide you with the discretion to determine precisely what related to mail fraud or wire fraud?
A. Yes. In case I neglected to put something in important on the list and I found an important piece of evidence, I wouldn’t want to be precluded from being able to seize it.
Q. Exercise discretion on site to seize that item?
While we agree that this testimony is sometimes equivocal, we
cannot say that the district court clearly erred in finding that
Smitherman acted in good faith. Smitherman did not admit that
she had drafted the warrant to give her complete discretion to
seize any item she wished; instead, she stated repeatedly that
22 the warrant authorized the seizure only of evidence related to
mail and wire fraud as described in her affidavit. While she did
testify that the warrant permitted her to exercise some
discretion with respect to identifying such evidence, she
apparently also believed that Attachment B adequately identified
the scope of her search. Quite simply, Cherna can point to no
testimony establishing that Smitherman intended to violate the
Fourth Amendment. We decline to disturb the district court’s
finding that she acted in good faith.
We conclude that the good-faith exception to the
exclusionary rule applies in this case. “The officers in this
case took every step that could reasonably be expected of them.”
Sheppard, 468 U.S. at 989. Smitherman prepared a detailed
affidavit that was reviewed by two Assistant United States
Attorneys. She then presented the affidavit to a neutral
magistrate judge, who found it sufficient to support probable
cause to search Cherna’s residence and issued a warrant
authorizing such action. Although he sealed the affidavit, the
warrant referenced it and contained a list of twenty-six
categories of evidence subject to seizure. All the officers who
participated in seizing evidence read the affidavit and,
therefore, were familiar with the objects of the search. Our law
simply does not require a reasonable officer to do more.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.