597 F.3d 140 (3rd Cir. 2010), 08-3290, United States v. Tracey

Docket Nº:08-3290.
Citation:597 F.3d 140
Opinion Judge:AMBRO, Circuit Judge.
Party Name:UNITED STATES of America, Appellant v. Ralph Douglas TRACEY.
Attorney:Martin C. Carlson, United States Attorney, Theodore B. Smith, III, (Argued), Gordon A.D. Zubrod, Assistant United States Attorney, Harrisburg, PA, Council for Appellant. Steve Rice, Esquire, (Argued), Gettysburg, PA, Council for Appellee.
Judge Panel:Before: RENDELL and AMBRO, Circuit Judges and McVERRY,[*] District Judge.
Case Date:March 01, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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597 F.3d 140 (3rd Cir. 2010)

UNITED STATES of America, Appellant


Ralph Douglas TRACEY.

No. 08-3290.

United States Court of Appeals, Third Circuit.

March 1, 2010

         Argued Sept. 29, 2009.

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[Copyrighted Material Omitted]

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         Martin C. Carlson, United States Attorney, Theodore B. Smith, III, (Argued), Gordon A.D. Zubrod, Assistant United States Attorney, Harrisburg, PA, Council for Appellant.

          Steve Rice, Esquire, (Argued), Gettysburg, PA, Council for Appellee.

          Before: RENDELL and AMBRO, Circuit Judges and McVERRY,[*] District Judge.


          AMBRO, Circuit Judge.

          The United States Government appeals the order of the 2 District Court suppressing evidence seized and a statement made during a search conducted pursuant to a

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warrant. The Court held that the warrant was general and not cured by the affidavit of probable cause because it was not incorporated into the warrant. The Court also concluded that a reasonably objective police officer would have recognized that the warrant was defective, and thus the good faith exception to the exclusionary rule did not apply. On appeal, the Government argues that the warrant was not general because it incorporated the narrower affidavit, that the search was limited to the scope of that affidavit, and that, in any event, the good faith exception applies to the circumstances of this case.

         Relying on our decision in Doe v. Groody, 361 F.3d 232 (3d Cir.2004), we conclude that the warrant did not incorporate the affidavit of probable cause, and thus the narrower affidavit did not cure the concededly overbroad warrant. We also conclude that the Government waived any arguments based on the exception to the incorporation rule applied in United States v. Leveto, 540 F.3d 200 (3d Cir.2008), cert. denied, __ U.S. __, 129 S.Ct. 2790, 174 L.Ed.2d 294 (2009), by failing to raise them before the District Court. However, we hold that application of the exclusionary rule is not justified because the officers acted in good faith by relying on the validity of the warrant. Accordingly, we reverse the District Court's order suppressing the evidence seized as a result of the search and the statement made during the search, and remand for further proceedings.

         I. Factual and Procedural Background

         After conducting an investigation into the Internet distribution of a video containing images of an adult male having vaginal sex with a minor female, the Chief of the Liberty Township Police Department, James Holler, presented an application for a search warrant to a Magistrate Judge in Adams County, Pennsylvania.1 Holler prepared the application for the warrant and a seven-page affidavit of probable cause that accompanied the application. 2 He used a standard form issued by the Administrative Office of Pennsylvania Courts that was titled " Application For Search Warrant And Authorization." The form included the application and warrant on a single page divided into several sections. Under the block titled " Identify Items To Be Searched For And Seized," which directs applicants to " be as specific as possible," Holler wrote:

         Any items, images, or visual depictions representing the possible exploitation of children including video tapes or photographs.

COMPUTERS: Computer input and output devices to include but not limited to keyboards, mice, scanners, printers, monitors, network communication devices, modems and external or connected devices used for accessing computer storage media.

         In the block requiring a " Specific Description Of Premises And/Or Person To Be Searched," Holler included an address and a detailed description of two buildings located at that address. He listed Ralph Douglas Tracey, the defendant, as the owner or occupant of the premises to be searched.

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          The box below the name of the owner of the premises was divided into four partitions. The first and second partitions asked for " Violation of" and the " Date(s) of Violation." Holler wrote " 6312(c),(d) PA Crimes Code" 3 and listed the date of the violation as January 9, 2006. Another portion of this box provided three small boxes for an applicant to check. Holler checked all three, indicating that: 1) the warrant application had been approved by the district attorney; 2) additional pages, other than the affidavit of probable cause, were attached; and 3) the affidavit of probable cause was attached. The box pertaining to the probable cause affidavit stated " Probable Cause Affidavit(s) MUST be attached (unless sealed below)." [A 34] It was followed by a sentence requesting that the applicant identify the total number of pages. Holler handwrote " 7" in response to this inquiry. Underneath this section, he signed the form, indicating that he swore there was probable cause to believe that " certain property" was evidence of a crime and was located at the " particular premises" described above. In a separate box below Holler's signature, the Magistrate Judge signed and attached a seal, indicating that the affidavit had been sworn before him on January 30, 2006.

         On the same page as the application, and immediately below the box containing the Magistrate Judge's signature, there is a final box, titled " Search Warrant," containing the following language:

WHEREAS, facts have been sworn to or affirmed before me by written affidavit(s) attached hereto, from which I have found probable cause, I do authorize you to search the premises or person described, and to seize, secure, inventory and make return according to the Pennsylvania Rules of Criminal Procedure.

         The Magistrate Judge indicated when the warrant could be served. Below the date and time, the Magistrate Judge signed the warrant and attached a seal. The seven-page affidavit of probable cause was attached to the application and the warrant, and the bottom of each page of the affidavit included the signature of Holler and the date, along with the signature of the Magistrate Judge, the seal, and the date.

          The affidavit of probable cause provided detailed information on the investigation of Tracey. According to the affidavit, an officer was investigating the distribution of child pornography on the Internet by using software to recognize and match files known to contain child pornography. The officer found a file name that matched a

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known movie file. The affidavit included the digital signature of the file and stated that this file was a video of an adult male having vaginal sex with a minor female.

         The officer downloaded the movie file and confirmed its contents. The officer then determined the Internet Protocol (" IP" ) address of the computer distributing the film and sought a court order directing Adelphia, the internet service provider, to provide subscriber information for the IP address along with connection-access logs. Adelphia responded that the account of the IP address was registered to Doug Tracey of Fairfield, Pennsylvania. The Liberty Township Police Department then became involved in the investigation. After confirming the Adelphia account information, Holler visited the address listed on the Adelphia account and observed a house with an attached body shop.

         The affidavit also included information about the items the officers expected to seize during the search. On page two of the affidavit, Holler stated that he expected to find " within the residence of 2896 Tract Road, Liberty Township, Adams County, PA 17320, items which are/were used to commit the crime of Sexual Abuse of Children, to wit, 18 PA.C.S.A. section 6312(c), (d)." He further stated:

Your affiant has delineated the items your affiant expects to find within said location which is captioned under " items to be searched for and seized" and your affiant incorporates that list therein. Possession of these items are either in and of themselves a crime or they are/were utilized to commit a crime, to wit, Sexual [A]buse of [C]hildren, 18 PA.C.S.A. section 6312(c), (d).

         Additionally, in a section of the affidavit titled " Seizure of Computers and Digital Evidence," the affidavit described the sort of evidence likely to be associated with crimes involving child pornography, including floppy disks, hard drives, tapes, DVDs, and CD-ROMs, and explained why it was necessary to seize these items and search them offsite. The search also was expected to produce items that showed ownership or use of the computers and ownership of the home.

         Holler and three other officers served the warrant on the day it was issued. During the search, Holler explained the search warrant to Tracey and his wife, informing them that he was searching for child pornography. Tracey allegedly told Holler that he may have accidentally downloaded one movie containing child pornography. After a search of the defendant's home and the shop adjoining his home, the officers seized: one working laptop computer, one broken laptop computer, two floppy disks, two computer towers with power cords, one Sony video cassette, four other videotapes, one box of 19 video cassette tapes, and one bag of 19 videotapes. After examining one of the computer towers, officers removed 208 images and 48 movies allegedly containing child pornography. The Commonwealth filed charges against Tracey in state court based on 189 images and 33 movies that it alleged contained child pornography.

         State prosecution was then terminated in favor of federal prosecution. A federal grand jury in the Middle District of Pennsylvania returned a two-count indictment charging Tracey with receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and possession of child pornography...

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