The Honorable Lewis A. Kaplan, of the United States District 1 Court for the… v. Rosa UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term 2009 4…

* The Honorable Lewis A. Kaplan, of the United States District 1
Court for the Southern District of New York, sitting by 2
designation. 3
1
09-0636-cr
United States v. Rosa
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2009 4
(Argued: March 2, 2010 Decided: October 27, 2010) 5
Docket No. 09-0636-cr 6
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UNITED STATES OF AMERICA, 8
9
Appellee, 10
11
-- v. -- 12
13
EFRAIN J. ROSA, 14
15
Defendant-Appellant. 16
17
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19
B e f o r e : WALKER and LIVINGSTON, Circuit Judges, and KAPLAN, 20
District Judge.*
21
Defendant-Appellant Efrain J. Rosa appeals from a judgment 22
of the United States District Court for the Northern District of 23
New York (Norman A. Mordue, Chief Judge) convicting him of 24
producing child pornography and of witness tampering, and 25
sentencing him to 120 years’ imprisonment. Rosa challenges the 26
district court’s denial of his motion to suppress physical 27
evidence seized from his apartment, arguing that officers 28
violated the Fourth Amendment by executing an overbroad search 29
warrant that was so plainly defective that the good faith 30

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2
exception to the exclusionary rule does not apply. While we 1
agree with Rosa that the search warrant fails for lack of 2
particularity and, in light of Groh v. Ramirez, 540 U.S. 551 3
(2004), cannot be cured by reference to unincorporated, 4
unattached supporting documents, we conclude that the district 5
court correctly refused to exclude the resulting evidence, and 6
therefore AFFIRM. 7
JAMES P. EGAN, Office of the 8
Federal Public Defender (Alexander 9
Bunin, Federal Public Defender, and 10
Lisa A. Peebles, First Assistant 11
Federal Public Defender, on the 12
brief), Syracuse, N.Y., for 13
Defendant-Appellant. 14
15
BRENDA K. SANNES, Assistant United 16
States Attorney (Andrew T. Baxter, 17
Acting United States Attorney for 18
the Northern District of New York, 19
and Lisa M. Fletcher, Assistant 20
United States Attorney, of Counsel, 21
on the brief), Syracuse, N.Y., for 22
Appellee. 23
24
JOHN M. WALKER, JR., Circuit Judge: 25
Defendant-Appellant Efrain J. Rosa appeals from the February 26
12, 2009 judgment of the United States District Court for the 27
Northern District of New York (Norman A. Mordue, Chief Judge) 28
convicting him, upon a conditional guilty plea, of three counts 29
of producing child pornography and one count of witness 30
tampering. Prior to his guilty plea, Rosa moved to suppress 31
physical evidence seized from his home on the basis that it was 32
taken pursuant to an overbroad search warrant that failed to 33

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3
state how electronic items to be seized were connected to any 1
suspected criminal activity or, more specifically, child 2
pornography. While we agree with Rosa that the Supreme Court’s 3
decision in Groh v. Ramirez, 540 U.S. 551 (2004), has abrogated 4
United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993), to 5
disallow consideration of unattached and unincorporated 6
supporting documents to cure an otherwise defective search 7
warrant, and that the warrant in this case is thus 8
constitutionally invalid, we conclude that the district court 9
correctly refused to exclude the resulting evidence. We 10
therefore AFFIRM the district court’s denial of Rosa’s motion to 11
suppress. 12
13
BACKGROUND 14
Late on September 26, 2007, the Oswego County, New York, 15
Sheriff’s Office began investigating possible child exploitation 16
by Efrain J. Rosa after Deputy Sheriff John Burke was dispatched 17
to a local address upon receipt of a 911 call from two mothers 18
reporting that their minor sons had just disclosed being sexually 19
abused by a neighbor, whom the boys referred to only as “J.” 20
Upon speaking with the two women and interviewing each of the 21
boys, Deputy Sheriff Burke learned that “J” had shown the boys 22
files on his computer containing nude pictures of the boys and 23
other children and that “J” had engaged in sexual conduct with 24

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4
the boys. The boys further stated that “J” kept three laptop 1
computers in his apartment, had a USB flash drive on which he 2
kept images of nude children that included images of the two 3
boys, had a pistol in his bedside table, and had sexually abused 4
each of the boys on multiple occasions over a period of two 5
months. In the course of the investigation, at approximately 6
2:00 a.m., the responding officers sought the assistance of 7
Oswego County Investigator Bryan Blake, who had specialized 8
training in performing computer forensic exams in child 9
pornography cases. Based on the information provided to him by 10
Deputy Sheriff Burke and another officer, the sworn statements of 11
the two boys and one of the mothers, and his own specialized 12
computer training, Investigator Blake prepared a search warrant 13
application and affidavit, which he then presented to Granby Town 14
Justice Bruce Wells in connection with his request for a search 15
warrant of Rosa’s apartment. 16
On September 27, 2007, at 4:10 a.m., Judge Wells issued a 17
search warrant directing the Oswego County Sheriff’s Office to 18
search 19
[t]he entire residence known as 30 West 11th Street 20
Building E Apartment 1 Chateau West Apartments in the 21
Town of Granby, County of Oswego, State of New York. 22
This is to include any containers or rooms whether 23
locked or otherwise[ ] 24
25
for the following property: 26
The property sought to be seized and searched is 27
described as computer equipment, electronic digital 28

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1 Specifically, the application listed the suspected violation 1
of Articles 130 (“Sex offenses”), 263 (“Sexual performance by a 2
child”), and 265 (“Firearms and other dangerous weapons”) of New 3
York State’s Penal Law. 4
5
storage media included but not limited to floppy 1
diskettes, compact disc, hard drives whether mounted in 2
a computer or otherwise, video or audio tapes, video 3
surveillance systems, video and digital camera systems, 4
printing devices, monitors, firearms and any written 5
and/or printed and/or electronic stored notes or 6
records which would tend to identify criminal conduct 7
and any personal papers or documents which tend to 8
identify the owner, leasee or whomever has custody or 9
control over the premises searched or the items seized. 10
11
While the search warrant itself did not incorporate any 12
supporting documents, or set forth the nature of the suspected 13
criminal activity, section A of the search warrant application 14
stated that the property to be searched was evidence of three New 15
York criminal offenses–two sex offenses, one of which related to 16
crimes involving child pornography, and one firearms offense. 1
17
Sections B and C of the search warrant application then described 18
the location to be searched and the items to be searched and/or 19
seized identically to the descriptions used in the search 20
warrant. Finally, the search warrant application requested that 21
“the court issue a search warrant directing the search as set 22
forth in section C of this application for property described and 23
set forth in sections A and B of this application and the seizure 24
thereof.” Investigator Blake swore to the information in the 25
search warrant application before Judge Wells, and the 26
application bore each man’s signature. 27

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6
The materials presented to Judge Wells also included an 1
affidavit by Investigator Blake that (a) incorporated the 2
statements made by each of the boys and one of the two women, (b) 3
explained Investigator Blake’s forensics training and the 4
characteristics common to individuals engaged in the production 5
of child pornography and in child molestation, and (c) set forth 6
Rosa’s New York criminal history and lack of a pistol permit. 7
The affidavit also stated the following as to the items specified 8
for seizure: 9
All of the materials requested for seizure will 10
identify children who are being sexually exploited 11
through child molestation and child pornography. The 12
materials will also identify other adults who are 13
engaging in the sexual exploitation of children by 14
these means. In addition, these materials will 15
demonstrate the sexual proclivity, inclination, 16
preference, and activities of the person under 17
investigation providing evidence that will tend to show 18
that the person under investigation has committed 19
felonies. 20
21
After issuance of the search warrant, Investigator Blake convened 22
a team of officers, proceeded to Rosa’s apartment, and, at 23
approximately 5:00 a.m., executed the warrant. During the 24
search, officers seized numerous items, including, inter alia, 25
six computers, multiple USB thumb drives, USB cables, a Sony 26
Playstation, two digital cameras, multiple external hard drives, 27
a cassette recorder, two USB cameras, numerous compact discs, a 28
pair of handcuffs, condoms, three marijuana pipes, a handgun, 29
ammunition, and over seventy grams of marijuana. Investigator 30

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7
Blake personally participated in the execution of the warrant 1
and, as the warrant’s affiant, was responsible for ensuring that 2
the items seized were within the scope of the approved search. 3
Investigator Blake subsequently performed a forensic 4
analysis of the computers and related storage media, during which 5
he discovered several thousand images and over a hundred videos 6
of child pornography. Investigator Blake also uncovered three 7
digital file folders, two of which were labeled with the 8
complainants’ first names, that contained sexually explicit 9
images of minor children, including images of the defendant 10
engaging in sexual conduct with each of the complainants. File 11
data from the images indicated that they were produced by the 12
same type of camera as the one seized from Rosa’s apartment. 13
In October 2007, following his arrest and arraignment on 14
state court charges, a federal grand jury indicted Rosa on three 15
counts of producing child pornography. In February 2008, Rosa 16
moved to suppress post-arrest statements he made to law 17
enforcement officers, arguing that the statements were 18
involuntary, made under duress, and taken despite his request for 19
counsel, all in violation of the Fifth Amendment. On March 13, 20
2008, the grand jury returned a nineteen-count superseding 21
indictment charging Rosa with three counts of producing child 22
pornography, one count of witness tampering, two counts of 23
attempting to receive child pornography in interstate commerce, 24

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8
and thirteen counts of possessing child pornography. 1
In June 2008, Rosa filed a second motion to suppress, this 2
time arguing that physical evidence seized from his apartment was 3
obtained in violation of the Fourth Amendment. Specifically, 4
Rosa argued that the issuing date on the search warrant was 5
altered, that the officers failed to provide him with or show him 6
a copy of the warrant, that the warrant lacked particularity and 7
was overbroad because it allowed for the seizure of any items 8
that “would tend to identify criminal conduct,” and that the 9
inventory from the search lacked sufficient detail. In a 10
supplemental memorandum, Rosa further described the search 11
warrant’s lack of particularity, arguing that it failed to show 12
“how the items to be seized are connected to criminal activity” 13
or to “state or make any mention of child pornography.” Thus, 14
according to Rosa, the warrant purportedly authorized a general 15
search of his electronic equipment without providing any guidance 16
to the executing officers as to the type of criminal conduct 17
suspected or the particular items to be seized. 18
On August 6, 2008, following an evidentiary hearing as to 19
Rosa’s post-arrest statements only, the district court, in a 20
ruling from the bench, denied Rosa’s motion to suppress those 21
statements as well as his subsequent motion to suppress physical 22
evidence seized from his apartment. As to Rosa’s claim that the 23
search warrant lacked particularity, the district court declined 24

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9
to address Rosa’s arguments that (1) the warrant did not state 1
the nature of the crime suspected or the items to be seized with 2
particularity, and (2) the warrant contained two “catch all” 3
phrases of the type courts have found to be overbroad. Rather, 4
the district court assumed without deciding that Rosa was correct 5
on each of these points, but concluded that any such failure 6
“d[id] not render the warrant incurably defective” because “the 7
functional purposes of [incorporation and attachment], to insure 8
that all parties involved are informed of the scope of and limits 9
upon the authorized search, were fully satisfied.” Oral Order 10
Denying Motions to Suppress, United States v. Rosa, No. 07–cr- 11
00443 (NAM) (N.D.N.Y. Aug. 6, 2008) (citing Bianco, 998 F.2d at 12
1117). After considering the entirety of the documents presented 13
to the town justice, as well as the additional facts that 14
Investigator Blake was both the affiant and the officer who 15
executed the warrant, that Investigator Blake had specialized 16
training in investigating cases of child pornography, and that 17
the items actually seized were connected to the crimes charged, 18
the district court concluded that the scope of the search was 19
properly limited. The district court further concluded that even 20
if the warrant were deemed invalid, the officers reasonably 21
relied on it in executing a limited search of Rosa’s apartment. 22
The district court rejected Rosa’s motion to suppress his post- 23
arrest statements after finding the statements were voluntarily 24

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10
made and lawfully obtained. 1
On October 9, 2008, Rosa pleaded guilty to three counts of 2
producing child pornography, in violation of 18 U.S.C. § 2251(a), 3
and one count of witness tampering, in violation of 18 U.S.C. 4
§ 1512(b)(1), while reserving his right to appeal from the 5
district court’s denial of his motions to suppress. On February 6
12, 2009, the district court sentenced Rosa to a thirty-year term 7
of imprisonment on each of the four counts to which he plead 8
guilty, to be served consecutively, for a total of 120 years’ 9
imprisonment, with lifetime terms of supervised release on the 10
child pornography counts and a three-year term on the witness 11
tampering count, all to be served concurrently. 12
This appeal followed. 13
14
DISCUSSION 15
On appeal, Rosa challenges only the district court’s denial 16
of his motion to suppress physical evidence seized from his 17
apartment. We review the district court’s factual findings for 18
clear error, viewing the evidence in the light most favorable to 19
the government, and its legal conclusions de novo. See United 20
States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 2008) (per curiam), 21
cert. denied, 130 S. Ct. 3434 (2010). 22
I. The Fourth Amendment’s Particularity Requirement 23
The Fourth Amendment to the U.S. Constitution provides: 24

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11
The right of the people to be secure in their persons, 1
houses, papers, and effects, against unreasonable 2
searches and seizures, shall not be violated, and no 3
Warrants shall issue, but upon probable cause, 4
supported by Oath or affirmation, and particularly 5
describing the place to be searched, and the persons or 6
things to be seized. 7
8
U.S. Const. amend. IV. Thus, the Fourth Amendment protects 9
against “wide-ranging exploratory searches” unsupported by 10
probable cause, Maryland v. Garrison, 480 U.S. 79, 84 (1987), by 11
mandating that a search warrant describe with particularity the 12
place to be searched and the persons or things to be seized. 13
“The Fourth Amendment by its terms requires particularity in the 14
warrant, not in the supporting documents.” Groh, 540 U.S. at 557 15
(a warrant, however, may cross-reference and be accompanied by 16
supporting documents); see also United States v. Waker, 534 F.3d 17
168, 172 (2d Cir. 2008) (discussing Groh). We note that, while 18
Rosa argues that the search warrant in this case lacked 19
particularity because it purportedly authorized a general search 20
of his digital media for evidence of any criminal activity, he 21
has never asserted that the warrant was issued in the absence of 22
probable cause that he was engaged in child molestation or child 23
pornography. 24
Rosa principally argues that because it failed to state with 25
any level of particularity the specific criminal activity alleged 26
or the type of digital evidence to be sought from the electronic 27
items seized, the warrant authorized the officers to conduct an 28

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12
unfettered search of the contents of his numerous electronic 1
devices, any one of which might contain sensitive personal 2
information unrelated to the suspected crimes of child 3
pornography and child molestation. For example, officers 4
conducting a search pursuant to the explicit terms of the warrant 5
might review expense reports, income-related files and 6
correspondence, and federal filing information in search of 7
evidence of tax evasion. Or officers might read through e-mail 8
correspondence in search of evidence of an internet-based 9
phishing scheme. As a consequence, Rosa effectively argues that 10
the warrant’s authorization of an uncircumscribed search of his 11
electronic equipment violated the Fourth Amendment’s core 12
protection against general searches because it provided the 13
government with unrestrained access to electronic records of his 14
daily activities and private affairs. See United States v. 15
Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (“The modern 16
development of the personal computer and its ability to store and 17
intermingle a huge array of one’s personal papers in a single 18
place increases law enforcement’s ability to conduct a wide- 19
ranging search into a person’s private affairs, and accordingly 20
makes the particularity requirement that much more important.”). 21
We agree with Rosa that the search warrant in this case 22
lacked the requisite specificity to allow for a tailored search 23
of his electronic media. The warrant was defective in failing to 24

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13
link the items to be searched and seized to the suspected 1
criminal activity–i.e., any and all electronic equipment 2
potentially used in connection with the production or storage of 3
child pornography and any and all digital files and images 4
relating to child pornography contained therein–and thereby 5
lacked meaningful parameters on an otherwise limitless search of 6
Rosa’s electronic media. See United States v. Buck, 813 F.2d 7
588, 590 (2d Cir. 1987) (“[T]he particularity requirement ‘makes 8
general searches . . . impossible and prevents the seizure of one 9
thing under a warrant describing another. As to what is to be 10
taken, nothing is left to the discretion of the officer executing 11
the warrant.’” (quoting Marron v. United States, 275 U.S. 192, 12
196 (1927))). 13
Here, the warrant directed officers to seize and search 14
certain electronic devices, but provided them with no guidance as 15
to the type of evidence sought. See United States v. George, 975 16
F.2d 72, 76 (2d Cir. 1992) (“Mere reference to ‘evidence’ of 17
. . . general criminal activity provides no readily ascertainable 18
guidelines for the executing officers as to what items to seize. 19
. . . [A]uthorization to search for ‘evidence of a crime,’ that 20
is to say, any crime, is so broad as to constitute a general 21
warrant.”). We therefore conclude that the warrant failed to 22
describe with particularity the evidence sought and, more 23
specifically, to link that evidence to the criminal activity 24

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2 We reject the Government’s contention that all of the 1
electronic equipment seized from Rosa’s apartment could be 2
searched without a warrant because it was subject to later 3
forfeiture. The Government’s position that the entire contents 4
of Rosa’s computers and related storage media could be searched 5
under the terms of this warrant leads to the evisceration of the 6
Fourth Amendment’s requirement of an ex ante probable cause 7
determination. See United States v. Grubbs, 547 U.S. 90, 99 8
(2006) (explaining that the Fourth Amendment protects property 9
owners by interposing, ex ante, the impartial judgment of a 10
judicial officer). 11
14
supported by probable cause. As a result, the warrant violated 1
the Fourth Amendment’s proscription against general searches. 2
See Bianco, 998 F.2d at 1116 (noting that the subject warrant, 3
when viewed by itself, was impermissibly broad because it 4
described “neither the precise items to be seized nor the 5
possible crimes involved”); see also United States v. Burgess, 6
576 F.3d 1078, 1091 (10th Cir. 2009) (“If the warrant is read to 7
allow a search of all computer records without description or 8
limitation it would not meet the Fourth Amendment’s particularity 9
requirement.”). 10
The Government relies on our decision in Bianco to argue 11
that any defect in the search warrant may be cured by reference 12
to its supporting documents, which make clear that the search was 13
limited to gathering evidence of three New York crimes, including 14
crimes of child pornography and child molestation. 2 In Bianco, 15
we held that a warrant authorizing the seizure of “[N]otes, 16
Ledgers, Envelopes, Papers, and Records Containing Initials, 17
Names, Addresses, Dollar Amounts, Codes, Figures, and the Like: 18

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15
United States Currency,” was not particular enough to limit the 1
scope of the search to evidence of the defendant’s suspected 2
crimes of loansharking and extortion. Id. at 1115. We further 3
held, however, that this lack of particularity “[did] not render 4
the warrant incurably defective.” Id. at 1116. Rather, we 5
looked to the particular facts in Bianco, and concluded that, 6
despite the absence of express incorporation and the lack of 7
attachment of the affidavit to the warrant, the federal agents 8
and the defendant were aware of the scope of and limitations on 9
the search, both of which were spelled out clearly in the 10
affidavit supporting the search warrant application. Id. at 11
1116-17. But see George, 975 F.2d at 76 (in a case decided only 12
one year prior to Bianco, stating that “[r]esort to an affidavit 13
to remedy a warrant’s lack of particularity is only available 14
when it is incorporated by reference in the warrant itself and 15
attached to it”). 16
To the extent that Bianco permits the consideration of 17
unincorporated and unattached supporting documents to cure an 18
otherwise defective search warrant, however, it has been 19
abrogated by the Supreme Court’s decision in Groh. In Groh, 20
federal agents from the Bureau of Alcohol, Tobacco and Firearms 21
(ATF) applied to search a private ranch in Montana for “any 22
automatic firearms or parts to automatic weapons, destructive 23
devices to include but not limited to grenades, grenade 24

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16
launchers, rocket launchers, and any and all receipts pertaining 1
to the purchase or manufacture of automatic weapons or explosive 2
devices or launchers” after private visitors to the ranch 3
reported seeing a stockpile of weaponry and explosive devices on 4
the premises. 540 U.S. at 554. Along with the application, the 5
investigating ATF agent prepared a detailed affidavit setting 6
forth the factual basis for the search and a warrant form. Id. 7
The magistrate judge signed the warrant form, which failed to set 8
forth any of the items to be seized and instead described the 9
residential structure on the property as the concealed item. 10
Thereupon, the search warrant application and affidavit were 11
sealed. A team of federal and state officers, led by the ATF 12
agent, executed the search warrant the next day. As the search 13
was underway, the ATF agent described to the homeowners the 14
objects of the search but ultimately failed to uncover any 15
illegal weapons or explosives. Id. at 555. 16
In a civil suit for damages against the ATF agent and the 17
other executing officers, the homeowners asserted, inter alia, a 18
Fourth Amendment violation. Id. at 555. Before the Supreme 19
Court, the ATF agent-petitioner conceded that the warrant was 20
facially deficient because it lacked any description of the type 21
of evidence sought but pointed to the specificity in the 22
application. Id. at 557. In addressing whether the supporting 23
documents could save the warrant, the Court stated that “[t]he 24

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17
fact that the application adequately described the ‘things to be 1
seized’ does not save the warrant from its facial invalidity” 2
because the Fourth Amendment “by its terms requires particularity 3
in the warrant.” Id. (emphasis in original). Having concluded 4
the warrant was deficient for failing to describe the items to be 5
seized, the Court considered it irrelevant that the magistrate 6
judge had issued the warrant based on probable cause, that the 7
ATF agent had orally described to the homeowners the items to be 8
seized, and that the actual search had not exceeded the limits 9
contemplated by the magistrate judge on the basis of the search 10
warrant application and affidavit. Id. at 558. In rejecting the 11
ATF agent-petitioner’s further claim that the warrant should be 12
upheld because the goals of the particularity requirement were 13
met under the facts of the case, the Court stated that the lack 14
of particularity in the warrant gave no written assurance that 15
the magistrate judge had found probable cause to search and seize 16
all of the items listed in the affidavit and that it was no 17
answer that the agents exercised self-restraint in executing the 18
otherwise limitless search authorized by the warrant. Id. at 19
560-61. 20
While we recognize that this case differs from Groh because 21
the warrant here did list specific items to be seized, the 22
description in the search warrant of Rosa’s residence was 23
overbroad and provided the officers with no judicial limit on the 24

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18
scope of their search, especially as it related to the seizure of 1
electronically stored notes and records tending to identify 2
criminal conduct. Cf. Groh, 540 U.S. at 561; see United States 3
v. Liu, 239 F.3d 138, 140 (2d Cir. 2000) (“A warrant must be 4
sufficiently specific to permit the rational exercise of judgment 5
by the executing officers in selecting what items to seize.” 6
(internal quotation marks and alterations omitted)). Because we 7
may no longer rely on unincorporated, unattached supporting 8
documents to cure an otherwise defective search warrant, the 9
warrant fails for lack of particularity. 10
II. Application of the Exclusionary Rule 11
A violation of the Fourth Amendment does not necessarily 12
result in the application of the exclusionary rule, however. 13
“Indeed, exclusion has always been our last resort, not our first 14
impulse.” Herring v. United States, 129 S. Ct. 695, 700 (2009) 15
(internal quotation marks omitted). 16
Application of the exclusionary rule depends on the 17
“efficacy of the rule in deterring Fourth Amendment violations in 18
the future” as well as a determination that “the benefits of 19
deterrence . . . outweigh the costs.” Id.; see also United 20
States v. Julius, 610 F.3d 60, 66-67 (2d Cir. 2010) (discussing 21
Herring). Moreover, “[t]he extent to which the exclusionary rule 22
is justified by these deterrence principles varies with the 23
culpability of the law enforcement conduct.” Herring, 129 S. Ct. 24

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19
at 702. Thus, in deciding to suppress evidence, we look to 1
whether “police conduct [is] sufficiently deliberate that 2
exclusion can meaningfully deter it, and sufficiently culpable 3
that such deterrence is worth the price paid by the justice 4
system.” Id.; see also United States v. Leon, 468 U.S. 897, 911 5
(1984) (“[A]n assessment of the flagrancy of the police 6
misconduct constitutes an important step in the calculus.”). 7
“The pertinent analysis of deterrence and culpability is 8
objective,” and “‘our good-faith inquiry is confined to the 9
objectively ascertainable question whether a reasonably well 10
trained officer would have known that the search was illegal’ in 11
light of ‘all of the circumstances.’” Herring, 129 S. Ct. at 703 12
(quoting Leon, 468 U.S. at 922 n.23). 13
In this case, a reasonably well trained officer is not 14
chargeable with knowledge that this search was illegal in the 15
particular circumstances before us. While we may no longer rely 16
on unincorporated, unattached supporting documents to cure a 17
constitutionally defective warrant, those documents are still 18
relevant to our determination of whether the officers acted in 19
good faith, because they contribute to our assessment of the 20
officers’ conduct in a particular case. See id. at 699 (“[W]e 21
must consider the actions of all the police officers involved.”); 22
see also Leon, 468 U.S. at 923 & n.24 (examining the 23
circumstances of the search to determine objective 24

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3 In this respect, we find George, 975 F.2d at 74-78, 1
distinguishable. We find no basis for concluding that 2
Investigator Blake believed the warrant did not have to be 3
limited to obtaining evidence of a particular crime; rather, both 4
the search warrant application and supporting affidavit requested 5
authorization to search for evidence of child pornography and 6
child molestation and, moreover, specifically requested that the 7
search warrant be limited to obtaining evidence of these crimes. 8
Investigator Blake’s misstep, made in the course of a time- 9
sensitive and ongoing investigation, was in failing to notice 10
that this limiting language (or any specific language of 11
incorporation) was absent from the search warrant itself. We 12
conclude that suppressing physical evidence on the basis of such 13
an instance of “isolated negligence” would be incompatible with 14
the principles underlying the exclusionary rule. See Herring, 15
129 S. Ct. at 700-02. 16
20
reasonableness). Here, the application documents were drafted, 1
the warrant was issued, and the search of Rosa’s residence was 2
executed pursuant to a judicially authorized warrant in the three 3
hours from 2:00 a.m. to 5:00 a.m. The search warrant 4
application, Investigator Blake’s affidavit, and the documents 5
incorporated by the affidavit make clear that the purpose of the 6
search was to obtain evidence of child pornography and child 7
molestation. Indeed, the application and affidavit specifically 8
requested the issuance of a warrant to seize evidence depicting 9
Rosa’s sexual exploitation of children. 3 In addition, 10
Investigator Blake swore to Justice Wells that based on his 11
specialized training, he believed that the electronic items to be 12
searched and seized were likely to reveal evidence of child 13
pornography. Moreover, as both the affiant and the officer in 14
charge of executing the search warrant and later searching the 15

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21
digital media seized, Investigator Blake was intimately familiar 1
with the contemplated limits of the search. Finally, there is no 2
evidence that the team of officers searched for, or seized, any 3
items that were unrelated to the crimes for which probable cause 4
had been shown, or that Investigator Blake somehow misled the 5
town justice regarding the facts of the investigation and 6
intended scope of the search. 7
Upon examining the circumstances of the case, we conclude 8
that the officers acted reasonably and that the exclusionary rule 9
would serve little deterrent purpose in this case. Given the 10
time pressures and the content of the application and the 11
affidavit, it is only reasonable to conclude that the failure to 12
ensure that the items to be seized were properly limited under 13
the express terms of the warrant was simply an inadvertent error 14
that was the product of “isolated negligence.” Herring, 129 S. 15
Ct. at 698. There is nothing to suggest deliberateness and 16
culpability on the officers’ part. See United States v. 17
Riccardi, 405 F.3d 852, 863-64 (10th Cir. 2005) (applying the 18
good faith exception to an officer’s search of a seized computer 19
for evidence of child pornography despite the warrant’s lack of 20
particularity). “[E]ven assuming that the rule effectively 21
deters some police misconduct and provides incentives for the law 22
enforcement profession as a whole to conduct itself in accord 23
with the Fourth Amendment, it cannot be expected, and should not 24

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22
be applied, to deter objectively reasonable law enforcement 1
activity.” Leon, 468 U.S. at 918-19; see Herring, 129 S. Ct. at 2
704 (“In light of our repeated holdings that the deterrent effect 3
of suppression must be substantial and outweigh any harm to the 4
justice system, we conclude that when police mistakes are the 5
result of negligence . . . rather than systemic error or reckless 6
disregard of constitutional requirements, any marginal deterrence 7
does not ‘pay its way.’” (internal citations omitted)). 8
Rosa invokes Leon’s language that good faith may not be 9
found where a “warrant [is] so facially deficient–i.e., in 10
failing to particularize the place to be searched or the things 11
to be seized,” to argue that a reasonable officer could not rely 12
on this search warrant in good faith and that the exclusionary 13
rule should therefore apply. He likewise relies on the Supreme 14
Court’s denial of qualified immunity to the ATF agent in Groh as 15
further support for applying the exclusionary rule. Not every 16
facially deficient warrant, however, will be so defective that an 17
officer will lack a reasonable basis for relying upon it, see 18
Otero, 563 F.3d at 1134; Riccardi, 405 F.3d at 864, and the 19
defective warrant in this case certainly did not have the glaring 20
deficiencies of the itemless warrant in Groh. Moreover, the 21
Court has made clear since Leon that while the objective 22
inquiries underlying the good faith exception and qualified 23
immunity are the same, see Groh, 540 U.S. at 565 n.8, application 24

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of the exclusionary rule requires the additional determination 1
that the officers’ conduct was “sufficiently deliberate that 2
exclusion can meaningfully deter it, and sufficiently culpable 3
that such deterrence is worth the price paid by the justice 4
system,” Herring, 129 S. Ct. at 702. Because there is no 5
evidence that Investigator Blake and his team of officers 6
actually relied on the defective warrant, as opposed to their 7
knowledge of the investigation and the contemplated limits of the 8
town justice’s authorization, in executing the search, the 9
requisite levels of deliberateness and culpability justifying 10
suppression are lacking. Cf. Groh, 540 U.S. at 569 (Kennedy, J., 11
dissenting) (“The issue in this case is whether an officer can 12
reasonably fail to recognize a clerical error, not whether an 13
officer who recognizes a clerical error can reasonably conclude 14
that a defective warrant is legally valid.”); id. at 579 (Thomas, 15
J., dissenting) (“[T]he Court does not even argue that the fact 16
that [the agent] made a mistake in preparing the warrant was 17
objectively unreasonable, nor could it. . . . The only remaining 18
question is whether [his] failure to notice the defect was 19
objectively unreasonable.”). 20
The circumstances surrounding the investigation and 21
application for a warrant, conducted with necessary speed in the 22
early hours of the morning, and the search, executed by a team 23
led by the application’s affiant, demonstrate that the officers 24

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proceeded as though the limitations contemplated by the 1
supporting documents were present in the warrant itself, and, as 2
a result, their actions “bear none of the hallmarks of a general 3
search.” Liu, 239 F.3d at 141. Under the facts of this case, we 4
conclude that the benefits of deterrence do not outweigh the 5
costs. In so holding, however, we reiterate the importance of 6
law enforcement’s compliance with the probable cause and 7
particularity requirements of the Fourth Amendment and emphasize 8
that application of the exclusionary rule will vary in accordance 9
with the facts of each case. 10
11
CONCLUSION 12
For the forgoing reasons, we AFFIRM the district court’s 13
denial of Rosa’s motion to suppress. 14
15

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