United States v. Guy Hamilton ( 2010 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 08-3233
    ________________
    United States of America,                  *
    *
    Appellee,                     *
    *      Appeal from the United States
    v.                                   *      District Court for the
    *      Western District of Arkansas.
    Guy Wesley Hamilton,                       *
    *           [PUBLISHED]
    Appellant.                    *
    ________________
    Submitted: April 17, 2009
    Filed: January 13, 2010
    ________________
    Before LOKEN, Chief Judge, HANSEN and COLLOTON, Circuit Judges.
    ________________
    HANSEN, Circuit Judge.
    Following his conditional guilty plea to possessing child pornography, Guy
    Wesley Hamilton appeals from the district court's1 denial of his motion to suppress,
    in which he asserted that a warrantless search of his residence violated his Fourth
    Amendment rights and that a subsequent warrant authorizing a second search was
    invalid for lack of particularity. We conclude that the original warrantless search by
    the parole officers was proper and that the sheriff's officers reasonably relied on the
    1
    The Honorable Jimm Larry Hendren, United States District Judge for the
    Western District of Arkansas.
    warrant in performing the subsequent search. We therefore affirm the district court's
    denial of Hamilton's suppression motion.
    I.
    In 1998, Guy Wesley Hamilton was convicted in the Circuit Court in
    Washington County, Arkansas, of first degree sexual abuse of a minor and possessing
    sexually explicit materials of a child, and Hamilton was separately convicted in the
    United States District Court for the Western District of Arkansas of transporting and
    possessing child pornography. He served a 51-month sentence in federal prison and
    was returned to state prison from where he was paroled on March 11, 2002. The
    conditions of Hamilton's parole required him to abstain from the use of alcohol but did
    not prevent him from using a computer or the internet. Hamilton was on state parole
    during the period of time relevant to this appeal.
    On May 29, 2007, two Arkansas Adult Probation and Parole Officers, Mike
    Parker and James Tucker, made an unannounced visit to Hamilton's residence (a small
    16 foot by 6½ foot camper trailer) at the request of Hamilton's supervising parole
    officer, Ashley Harvey. The visit was part of a larger spot check on area sex
    offenders. Around 8:00 p.m., the two parole officers knocked on the door to
    Hamilton's trailer and identified themselves as parole officers, to which Hamilton
    responded, "Let me get dressed." Approximately five minutes later, during which
    time the officers heard shuffling noises and a commotion inside, Hamilton answered
    the door wearing only sweat pants. Officer Parker advised Hamilton that they were
    conducting a home search, and he asked Hamilton if he had a problem with that, to
    which Hamilton responded, "No. Everything's fine." (Oct. 3, 2007 Mot. Hr'g Tr. at
    87.) Parker stepped inside the trailer and immediately saw several empty beer cans
    in the trailer, a clear indication that Hamilton had violated a condition of his parole.
    -2-
    Officer Parker then began to search Hamilton's trailer for further violations,
    finding a case of beer in the refrigerator. Parker observed Hamilton's laptop computer
    sitting on the table, and he advised Hamilton that he was going to perform an image
    scan on it. When Parker opened the laptop, the screen was blank, but he noticed a
    media window bar with the title "Daddy and Daughter." Officer Parker could not
    locate the file on the laptop, which indicated to him that it was stored on an external
    device. Parker confronted Hamilton and advised him that he needed to cooperate, and
    Hamilton admitted that there were three compact disks (CDs) under a couch cushion
    that he had been viewing when the officers knocked. Parker put one of the CDs into
    Hamilton's laptop and saw that it contained a video of child pornography. Parker then
    contacted the Washington County Sheriff's Office for assistance.
    Washington County officers arrived, arrested Hamilton, and took possession of
    the three CDs Hamilton had identified for the parole officers, as well as sixteen other
    CDs found in the vicinity of the laptop. Detective Charles Rexford of the Washington
    County Sheriff's Office secured the scene and, the next morning, he completed an
    affidavit seeking a search warrant. Detective Rexford averred that based on the parole
    officers' visit and the CDs they discovered, he believed that Hamilton had concealed
    at his residence "child p[or]nography recorded on CD's [sic], tapes, photographs,
    writings, along with computer, computer printer, external hard drive, cellular
    telephone, i-pod, and assorted computer accessories to aid in the capture and recording
    of said p[or]nography." (Add. at 17.) A Washington County circuit judge then issued
    a search warrant, which was executed that afternoon. Detective Rexford, who had
    prepared the warrant affidavit, led the search and seized a thumb drive, a hard drive,
    and the laptop computer during the warranted search.
    In correcting an error on the warrant he was preparing for the circuit judge's
    signature, Detective Rexford unknowingly deleted the list of items to be seized from
    the face of the warrant. However, the items were specified in Detective Rexford's
    affidavit, which accompanied the warrant application at the time the circuit judge
    -3-
    signed and issued the warrant. Although the warrant referenced the affidavit with the
    words "See Attached Affidavit," the affidavit was not physically attached to the
    warrant when the warrant was executed on May 30, 2007, and there is no evidence in
    the record that the affidavit was available at the scene of the search. Detective
    Rexford executed the warrant and was aware of the items listed in the affidavit to be
    seized because he had drafted the affidavit. He subsequently discovered the clerical
    error in the warrant itself and filed an application for an amended search warrant on
    June 1, including a list of the items from the affidavit in the amended warrant. The
    circuit judge signed the amended warrant the same day.
    Hamilton was charged with possessing a thumb drive (Count One) and a DVD
    (Count Two) containing visual depictions of a minor engaged in sexually explicit
    conduct in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2). Following the district
    court's denial of Hamilton's motion to suppress the items seized from his trailer,
    Hamilton entered a conditional plea of guilty to count one. The thumb drive charged
    in count one was the one seized during the warranted search. Hamilton was sentenced
    to 151 months of imprisonment and a $15,000 fine. Count two was dismissed
    pursuant to the plea agreement. Hamilton appeals the denial of his motion to
    suppress.
    II.
    In our review of the district court's denial of Hamilton's motion to suppress
    evidence, we examine the district court's findings of fact for clear error, and we review
    de novo whether the searches violated the Fourth Amendment. See United States v.
    Walker, 
    555 F.3d 716
    , 719 (8th Cir. 2009). Hamilton challenges the warrantless
    search by the parole officers and the subsequent warranted search conducted by
    officers from the Washington County Sheriff's Office. We address each in turn.
    -4-
    A.     Warrantless Search by Parole Officers
    Hamilton challenges the warrantless search of his home by the parole officers
    as violating his Fourth Amendment right to be free from unreasonable searches. See
    U.S. Const. amend. IV ("The right of the people to be secure in their . . . houses . . .
    against unreasonable searches and seizures, shall not be violated . . . . "). When he
    was paroled, Hamilton acknowledged that as a condition of his parole, he would
    "submit [his] person, place of residence and motor vehicles to search and seizure at
    any time, day or night, with or without a Search Warrant, whenever requested to do
    so by any Department of Community Punishment officer." (Oct. 3, 2007 Mot. Hr'g
    Tr. at 63.) The Arkansas Post Prison Transfer Board's Policies and Procedures limit
    this search condition to instances where the parole officer has "reasonable suspicion
    that a [parolee] has committed a release violation or crime." (Add. at 23.) If Arkansas
    law allowed suspicionless searches as a condition of parole, then Samson v.
    California, which held that a suspicionless search pursuant to state law did not violate
    a parolee's Fourth Amendment rights, see 
    547 U.S. 843
    , 856-57 (2006), would have
    ended our inquiry based on Hamilton's express acknowledgment of this condition. Cf.
    United States v. Perkins, 
    548 F.3d 510
    , 513 (7th Cir. 2008) (noting that parolee
    withdrew challenge to suspicionless search of his home in light of Samson). Because
    we agree with the district court that reasonable suspicion supported the parole officers'
    search, and because the government concedes that "'reasonable suspicion' was
    necessary for a lawful search" (Appellee's Br. at 16), we need not tarry on any
    difference between the notice of conditions provided to Hamilton and the Post Prison
    Transfer Board's policies.
    For purposes of this appeal then, we proceed on the premise that the parole
    officers were entitled to search Hamilton's home without a warrant only upon a
    finding of reasonable suspicion of a parole violation or a crime. See United States v.
    Knights, 
    534 U.S. 112
    , 118-19 (2001) (holding that a warrantless search of a
    probationer, who had agreed to such searches as a condition of probation, was
    -5-
    reasonable under general Fourth Amendment analysis if supported by reasonable
    suspicion); Griffin v. Wisconsin, 
    483 U.S. 868
    , 873-74 (1987) (holding that a state
    regulation allowing warrantless searches of a probationer's home upon reasonable
    suspicion of a probation violation was reasonable under the special needs exception
    to the warrant and probable cause requirements of the Fourth Amendment). Hamilton
    agrees that this is the proper standard, and he challenges only the existence of
    reasonable suspicion to support the warrantless search, a legal issue we review de
    novo. United States v. Winters, 
    491 F.3d 918
    , 921 (8th Cir. 2007).
    Reasonable suspicion exists when, considering the totality of the circumstances
    known to the officer at the time, the officer has a particularized and objective basis for
    suspecting wrongdoing. See United States v. Henry, 
    429 F.3d 603
    , 609-10 (6th Cir.
    2005) (utilizing the "reasonable suspicion" test for a Terry2 stop as articulated by the
    Supreme Court in United States v. Cortez, 
    449 U.S. 411
    , 417-18 (1981) in assessing
    whether parole officers had reasonable suspicion to meet the Griffin inquiry); United
    States v. Baker, 
    221 F.3d 438
    , 444 (3d Cir. 2000) (same). Because "ordinary Fourth
    Amendment analysis" applies to a probationary search, the parole officers' subjective
    purpose for the search is irrelevant to our analysis, and we look only at whether the
    parole officers' conclusion that reasonable suspicion existed was objectively
    reasonable. 
    Knights, 534 U.S. at 122
    (rejecting the Ninth Circuit's investigatory
    purpose analysis).
    Hamilton argues that we must assess reasonable suspicion as of the time the
    decision to search was made–when Parole Officer Harvey initially decided to send
    parole officers to perform a parole search of Hamilton's home based only on the
    knowledge that he owned a computer and had access to the internet, which were not
    prohibited by his parole conditions. But the Fourth Amendment applies to the act of
    searching, not the initial decision to search, and it applies an objective standard based
    2
    Terry v. Ohio, 
    392 U.S. 1
    (1968).
    -6-
    on the information known by the searching officers at the time of the search. See
    
    Terry, 392 U.S. at 21-22
    ("And in making [the Fourth Amendment] assessment it is
    imperative that the facts be judged against an objective standard: would the facts
    available to the officer at the moment of the seizure or the search 'warrant a man of
    reasonable caution in the belief' that the action taken was appropriate?" (emphasis
    added)); see also United States v. Atlas, 
    94 F.3d 447
    , 450 (8th Cir. 1996) ("In
    analyzing whether a reasonable suspicion existed, the totality of the circumstances–the
    whole picture–must be taken into account. We must consider the information
    available to the police at the time of the search." (internal citations and marks
    omitted)). We reject Hamilton's argument that we may look only at the facts known
    to Officer Harvey when she decided to send Officers Parker and Tucker to make a
    home visit to a parolee, and we proceed to determine whether the parole officers
    violated Hamilton's rights under the Fourth Amendment based on the officers'
    knowledge at the scene of the search.
    In this case, Parole Officers Parker and Tucker knew that Hamilton had
    previous convictions related to child pornography received over the internet and that
    Hamilton had told his parole officer that he had a computer and used the internet.
    Armed with this information, the officers visited Hamilton's residence and knocked
    on the door to his trailer, identifying themselves as parole officers. At this point,
    Hamilton's Fourth Amendment rights had not yet been implicated, as "it does not
    violate the Fourth Amendment merely to knock on a door without probable cause."
    United States v. Spotted Elk, 
    548 F.3d 641
    , 655 (8th Cir. 2008) (quoting United States
    v. Cruz-Mendez, 
    467 F.3d 1260
    , 1264 (10th Cir. 2006) for the proposition that "[a]s
    commonly understood, a 'knock and talk' is a consensual encounter and therefore does
    not contravene the Fourth Amendment, even absent reasonable suspicion."); cf.
    United States v. LeBlanc, 
    490 F.3d 361
    , 369 (5th Cir. 2007) ("Were we to impose a
    requirement that a probation officer show reasonable suspicion of criminal activity
    before visiting a probationer at his home, supervision would become effectively
    impossible."); United States v. Reyes, 
    283 F.3d 446
    , 462 (2d Cir. 2002) ("[B]ecause
    -7-
    a home visit is far less intrusive than a probation search, probation officers conducting
    a home visit are not subject to the reasonable suspicion standard applicable to
    probation searches under Knights." (emphasis omitted)).
    There is no evidence in the record that the officers ordered Hamilton to open
    the door. Rather, upon hearing the parole officers' identification, Hamilton asked the
    officers to let him get dressed, and he then opened the door a few minutes later. While
    waiting for Hamilton to open the door, the parole officers heard a commotion, and, in
    the officers' view, it took Hamilton an inordinate amount of time to get dressed and
    answer the door, considering the size of the trailer and his state of dress–wearing only
    a pair of sweat pants–when he finally did open the door. Officer Parker informed
    Hamilton that they were there to do a home visit and a parole search and asked
    Hamilton if he had a problem with that, to which Hamilton responded, "No.
    Everything's fine." (Hr'g Tr. at 87.) Parker then stepped inside the trailer and
    immediately saw several empty beer cans strewn about, a clear indication that
    Hamilton had violated the condition of his parole requiring complete abstinence from
    alcohol.
    Having lawfully entered Hamilton's trailer and observed in plain view a clear
    indication that Hamilton had violated his parole conditions, the circumstances known
    by the officers justified their continued search. The officers were suspicious that
    Hamilton was attempting to hide evidence of a parole violation or a crime by the
    inordinate amount of time it took him to answer the door, the commotion they heard
    while waiting, and Hamilton's state of dress when he finally opened the door. Their
    suspicions that Hamilton was violating the terms of his parole were confirmed by the
    empty beer cans. However, it was obvious to the officers that Hamilton had not been
    attempting to hide evidence that he had been drinking, as the beer cans were strewn
    about the trailer. The yet unanswered question of what Hamilton may have been
    trying to hide, coupled with the knowledge that Hamilton was on parole for possessing
    child pornography received over the internet and that he had told his parole officer
    -8-
    that he owned a computer and accessed the internet, justified the officers' actions in
    opening the lid to the laptop computer that was sitting on the table. See United States
    v. Winters, 
    491 F.3d 918
    , 922 (8th Cir. 2007) (considering the totality of the
    circumstances, including knowledge that the defendant was a prior drug offender, in
    assessing officers' reasonable suspicion to search defendant's car); United States v.
    Hoosman, 
    62 F.3d 1080
    , 1081 (8th Cir. 1995) (holding that officer had reasonable
    suspicion to search defendant's automobile based on his belief that defendant was
    attempting to hide a weapon or contraband, considering the officer's knowledge that
    defendant had a history of trafficking drugs and officer's observations of defendant
    moving from side to side in the car when the officer activated his flashing lights); cf.
    Wilson v. Arkansas, 
    752 S.W.2d 46
    , 47-48 (Ark. Ct. App. 1988) (holding that
    appellant, who was subject to identical supervision condition at issue here, was not
    denied Fourth Amendment protections because his "refusal [to allow officers to search
    his residence] gave the officers 'reasonable cause to believe that the appellant had
    failed to comply with a condition of his probation,'" justifying entry of residence
    where they saw marijuana in plain view). Once the laptop computer was open, the
    media title "Daddy and Daughter" provided ample reasonable suspicion to search
    further for child pornography. The district court properly denied Hamilton's motion
    to suppress the evidence seized during the parole officers' search.
    B.      Warranted Search by the Washington County Sheriff's Office
    Hamilton next challenges the denial of his motion to suppress the evidence
    seized the following day pursuant to the search warrant because the list of items to be
    seized was not included in the warrant as mandated by the Fourth Amendment's
    Warrant Clause. See U.S. Const. amend. IV ("[N]o Warrants shall issue, but upon
    probable cause, supported by Oath or affirmation, and particularly describing the place
    to be searched, and the persons or things to be seized."). It is undisputed that the
    affidavit accompanying the warrant application contained a sufficiently limiting list
    of items to be seized, but those items were inadvertently not listed in the warrant itself.
    -9-
    The Government argues that the reference in the warrant stating "See Attached
    Affidavit" satisfies the Fourth Amendment's particularity requirement. The
    Government also asserts that there was no risk that the wrong items would be seized
    because Detective Rexford, who prepared both the affidavit and the warrant, was the
    officer who executed the warrant, and that the items seized were, in fact, all within the
    list of items included in the affidavit.
    The Warrant Clause's particularity requirement can be satisfied by including
    the items to be seized in an affidavit or attachment that is adequately referenced in the
    search warrant. See United States v. Gamboa, 
    439 F.3d 796
    , 807 (8th Cir. 2006)
    ("'[A]n affidavit may provide the necessary particularity for a warrant if it is either
    incorporated into or attached to the warrant.'" (quoting Rickert v. Sweeney, 
    813 F.2d 907
    , 909 (8th Cir. 1987))). In acknowledging that courts of appeals have allowed a
    search warrant to be read in conjunction with other documents, see Groh v. Ramirez,
    
    540 U.S. 551
    , 557 (2004) ("We do not say that the Fourth Amendment prohibits a
    warrant from cross-referencing other documents."), the Supreme Court gleaned from
    the appellate decisions it cited the following conditions under which a warrant will be
    read to incorporate another document: "if the warrant uses appropriate words of
    incorporation, and if the supporting document accompanies the warrant," 
    id. at 557-58
    (emphasis added). In Groh, both limitations were lacking; the warrant did not
    incorporate the other documents and the other documents did not accompany the
    warrant, leaving the Court no reason to "further explore the matter of incorporation."
    
    Id. at 558.
    The fighting question in the case before us is whether the incorporated
    document must accompany the warrant to the search in order to satisfy the Fourth
    Amendment's particularity requirement. In defining the circumstances under which
    the courts of appeals had allowed supporting documents to meet the particularity
    requirement in Groh, the Supreme Court cited to our case of United States v. Curry,
    
    911 F.2d 72
    , 76-77 (8th Cir. 1990). See 
    Groh, 540 U.S. at 558
    . In Curry, we noted
    -10-
    that "a description in a supporting affidavit can supply the requisite particularity if 'a)
    the affidavit accompanies the warrant, and b) the warrant uses suitable words of
    reference which incorporate the affidavit therein.'" 
    Curry, 911 F.2d at 77
    (quoting
    United States v. Strand, 
    761 F.2d 449
    , 453 (8th Cir. 1985), in turn quoting United
    States v. Johnson, 
    541 F.2d 1311
    , 1315 (8th Cir. 1976)). Recognizing the less
    exacting fashion in which some courts had applied the two criteria, we reiterated our
    "circuit's well-established rule that the affidavit must both accompany the warrant and
    be incorporated into it." 
    Id. at 77
    n.4 (restricting Rickert's "or" language, which was
    taken from an Eleventh Circuit case, and noting that Rickert "should not be construed
    as having modified this circuit's well-established rule"). Nonetheless, some of our
    cases have listed the requirements for properly referencing another document as an
    either/or proposition. See, e.g., United States v. Nieman, 
    520 F.3d 834
    , 839 (8th Cir.
    2008) ("An affidavit may provide the necessary particularity for a warrant if it is
    incorporated into the warrant, attached to the warrant, or present at the search.");
    
    Gamboa, 439 F.3d at 807
    .
    Since Groh's endorsement of allowing an incorporated document to satisfy the
    particularity requirement, courts have focused more directly on the issue of whether,
    for purposes of the particularity requirement, the incorporated document must also
    accompany the warrant to the search for the warrant to satisfy the Warrant Clause of
    the Fourth Amendment. In Baranski v. Fifteen Unknown Agents of the Bureau of
    Alcohol, Tobacco and Firearms, 
    452 F.3d 433
    , 440 (6th Cir. 2006) (en banc), the
    Sixth Circuit addressed the issue in a Bivens3 case where a warrant clearly
    incorporated an affidavit that provided the list of specific items to be seized, but the
    incorporated document was sealed and not available at the search. The en banc court
    explained that the particularity requirement is part of the Warrant Clause of the Fourth
    Amendment, which provides the requirements for properly issuing a warrant. 
    Id. at 440-41
    (noting that the Warrant Clause of the Fourth Amendment explicitly applies
    3
    See Bivens v. Six Unknown Named Agents, 
    403 U.S. 388
    (1971).
    -11-
    to "issuance" of the warrant–"'no Warrant shall issue,' it says" (quoting U.S. Const.
    amend. IV)). Whether a warrant is properly issued, however, is a separate question
    from whether it is reasonably executed, which is governed by the Reasonableness
    Clause of the Fourth Amendment, see 
    id. at 444-45
    ("To say that a warrant satisfies
    the Warrant Clause upon issuance, however, by no means establishes that a search
    satisfies the Reasonableness Clause upon execution."), and the Sixth Circuit held that
    the failure to bring the incorporated document to the search did not make the search
    a warrantless one, 
    id. at 444
    ("The salient point is that Groh did not establish a one-
    size-fits-all requirement that affidavits must accompany all searches to prevent a
    lawfully authorized search from becoming a warrantless one."); see also United States
    v. Hurwitz, 
    459 F.3d 463
    , 472-73 (4th Cir. 2006) ("We see nothing in the Constitution
    requiring that an officer possess or exhibit, at the time of the search, documents
    incorporated into a warrant as an additional safeguard for the particularity
    requirement."); United States v. Basham, 
    268 F.3d 1199
    , 1204 (10th Cir. 2001)
    (noting that the reasonableness of the execution of a warrant "is an entirely different
    matter than the question of whether the warrant itself is valid").
    We recently, but indirectly, addressed this issue in the habeas action brought
    by the same claimant involved in the Sixth Circuit's Baranski case. See Baranski v.
    United States, 
    515 F.3d 857
    , 860-61 (8th Cir. 2008). We had previously denied
    Baranski's direct criminal appeal, including his claim that the police officers who
    executed the search warrant violated his Fourth Amendment rights. See United States
    v. Baranski, 75 F. Appx. 566 (8th Cir. 2003) (unpublished per curiam) (concluding
    that even if the officers violated the Fourth Amendment, they acted in good faith
    reliance on the warrant), cert. denied, 
    541 U.S. 1011
    (2004). Baranski later filed a 28
    U.S.C. § 2255 petition for postconviction relief, asserting that the Supreme Court's
    intervening Groh case and his success in the Bivens action in the Sixth Circuit (a panel
    decision later reversed by the Sixth Circuit en banc) entitled him to habeas relief. We
    denied Baranski's habeas claim, partly because the Sixth Circuit en banc had reversed
    the panel opinion that had originally granted relief to Baranski in his Bivens action,
    -12-
    and partly because Groh did not represent the type of intervening change in authority
    that would negate our prior holding on direct appeal, which was the law of the case.
    See 
    Baranski, 515 F.3d at 861
    . In doing so, we noted that the reference in the warrant
    to a sealed affidavit in Baranski was analogous to the warrant's incorporation of a
    separate document in Gamboa. We distinguished Groh because the magistrate in
    Baranski had signed the affidavit containing the limiting list of items to be seized,
    which satisfied the concern expressed in Groh that it be clear that the magistrate had
    the opportunity to restrict the scope of the search. 
    Id. at 860.
    "Because the warrant in
    Baranski's case satisfied the particularity requirement when issued and because
    officers performed the search reasonably, no constitutional violation occurred." 
    Id. at 861
    (citing 
    Baranski, 452 F.3d at 436
    ).
    Although the warrant in this case incorporated the affidavit with a "See
    Attached Affidavit" (Add. at 15), when read in context it is not clear that it did so in
    reference to the items to be seized. The warrant states, "there is now being concealed
    certain property, namely which is in violation of Arkansas State statute . . . ." (Id.)
    The space between "namely" and "which," as well as the nonsensical reading of the
    sentence, makes clear that the warrant preparer intended to insert specific items
    between the two words but failed to do so. The reference to the attached affidavit
    comes later in the warrant when the issuing judge certifies:
    [A]nd further I find that on the basis of the preceding before me there is
    reasonable cause to believe that the search will discover the items
    specified in this warrant, and that the items specified are subject to
    seizure and as I am satisfied in this warrant and that there is probable
    cause to believe that the property so described is being concealed on the
    object(s) above described, and that the foregoing grounds for application
    of the search warrant exist: See Attached Affidavit.
    (Id.) The language of incorporation is not as clear as that contained in 
    Baranski, 452 F.3d at 436
    (where the warrant said "See Attached Affidavit" in the location on the
    -13-
    warrant describing the things to be seized), or as defective as the warrants in 
    Groh, 540 U.S. at 558
    (where the warrant erroneously described the things to be seized as
    a blue house, which actually described the place to be searched, and it failed to
    incorporate at all the affidavit listing the items) or 
    Curry, 911 F.2d at 77
    (where the
    warrant stated only that "the application and supporting affidavit . . . (were) duly
    presented and read by the Court" but did not incorporate the application or the
    affidavit). Thus, the question remains whether the reference to the "Attached
    Affidavit" in this warrant satisfies the need for a "sufficiently incorporated" document.
    
    Gamboa, 439 F.3d at 807
    (distinguishing Groh on the basis that the affidavit in
    Gamboa was sufficiently incorporated, whereas it was not in Groh); see also 
    Groh, 540 U.S. at 557-58
    (noting that courts of appeals required that "the warrant use[]
    appropriate words of incorporation").
    If the warrant in this case referred to the attached affidavit for the explicit
    purpose of delineating the items to be seized, and if we were writing on a clean slate,
    we would be inclined to follow the reasoning of the Sixth Circuit in Baranski and
    conclude that an affidavit incorporated into a warrant need not accompany the warrant
    to the search for purposes of meeting the particularity requirement of the Warrant
    Clause. See 
    Baranski, 452 F.3d at 442
    ("In the aftermath of the Court's most recent
    decision in this area, United States v. Grubbs, 
    547 U.S. 90
    (2006), the possibility that
    the Warrant Clause requires officers to produce a copy of the warrant (and any
    affidavit) at the outset of the search seems even less plausible."). But given the
    questionable state of the law in our circuit about whether an incorporated affidavit
    must accompany a search warrant to the search for purposes of the particularity
    requirement, compare 
    Baranski, 515 F.3d at 860
    (concluding that reference to a sealed
    affidavit satisfied the particularity requirement) with 
    Curry, 911 F.2d at 77
    n.4
    (reiterating our circuit's "well-established rule" that an incorporated affidavit must also
    accompany the warrant), and given the ambiguity on the face of the warrant as to
    whether the reference to the attached affidavit was intended to refer to the items to be
    seized or merely the existence of probable cause, there are enough thorny issues in this
    -14-
    case to convince us to avoid deciding this issue. We are able to do so because, even
    if the warrant failed to meet the particularity requirement of the Warrant Clause, the
    facts of this case do not support imposition of the exclusionary rule.
    Not every Fourth Amendment violation results in exclusion of the evidence
    obtained pursuant to a defective search warrant. See Herring v. United States, 129 S.
    Ct. 695, 700 (2009). "[T]he Fourth Amendment contains no provision expressly
    precluding the use of evidence obtained in violation of its commands." Arizona v.
    Evans, 
    514 U.S. 1
    , 10 (1995). Rather, exclusion of evidence is "a judicially created
    rule . . . 'designed to safeguard Fourth Amendment rights generally through its
    deterrent effect.'" 
    Herring, 129 S. Ct. at 699
    (quoting United States v. Calandra, 
    414 U.S. 338
    , 348 (1974)). "Indeed, exclusion has always been our last resort, not our first
    impulse, and [Supreme Court] precedents establish important principles that constrain
    application of the exclusionary rule." 
    Id. at 700
    (internal citations and quotation
    marks omitted).
    As a judicially-created remedy, the exclusionary rule applies only where "its
    remedial objectives are thought most efficaciously served." 
    Evans, 514 U.S. at 11
    .
    The exclusionary rule is not an individual right, but it "applies only where it 'results
    in appreciable deterrence.'" 
    Herring, 129 S. Ct. at 700
    (quoting United States v.
    Leon, 
    468 U.S. 897
    , 909 (1984)) (emphasis added) (some internal marks omitted); see
    also Penn. Bd. of Probation & Parole v. Scott, 
    524 U.S. 357
    , 368 (1998) ("We have
    never suggested that the exclusionary rule must apply in every circumstance in which
    it might provide marginal deterrence."). The Court also balances the benefits of
    deterrence against the costs of excluding the evidence, particularly the social costs of
    "letting guilty and possibly dangerous defendants go free–something that 'offends
    basic concepts of the criminal justice system.'" 
    Herring, 129 S. Ct. at 701
    (quoting
    
    Leon, 468 U.S. at 908
    ). Finally, the Supreme Court includes "an assessment of the
    flagrancy of the police misconduct" in its calculus of whether the exclusionary rule
    should be applied. 
    Id. (internal marks
    omitted).
    -15-
    Hamilton argues that Groh requires exclusion of the evidence based on its
    discussion of Leon. In Leon, the Court held that evidence obtained pursuant to a
    defective warrant should not be suppressed if the officer who seized the evidence did
    so in good faith reliance on the warrant issued by a neutral 
    judge. 468 U.S. at 922
    .
    The Court noted four instances in which an officer's reliance would not be objectively
    reasonable, one of which is when a warrant is so facially deficient that no officer
    could reasonably believe it to be valid. 
    Id. at 923.
    Groh noted that the warrant in that
    case was "so obviously deficient" that the search must be regarded as warrantless,
    citing Leon. 
    Groh, 540 U.S. at 558
    . The Court concluded that the police officers in
    that case were not entitled to qualified immunity because "no reasonable officer could
    believe that a warrant that plainly did not comply with th[e Fourth Amendment
    particularity] requirement was valid." 
    Groh, 540 U.S. at 563
    . The Court also noted
    that the officer could not have "reasonably relied on the Magistrate's assurance that
    the warrant contained an adequate description of the things to be seized" because the
    same officer prepared the invalid warrant and included a description of the house to
    be searched in the place intended to list the items to be seized. 
    Id. at 564.
    We reject Hamilton's reliance on Groh. The warrant in this case included a
    clear incorporation of the affidavit, which itself included an explicit list of items to be
    seized. The issuing judge signed both the warrant and the affidavit, demonstrating
    both that the circuit judge approved the search with reference to the affidavit and that
    the judge had the opportunity to limit the scope of the search. See 
    Baranski, 515 F.3d at 860
    (distinguishing Groh on the basis that it was unascertainable whether the
    magistrate was aware of the scope of the authorized search). In contrast, the warrant
    in Groh failed to make any reference to the affidavit at all, which led the Court to look
    only to the face of the warrant. The problem with the warrant here is not a wholesale
    failure to incorporate the affidavit, but whether the warrant used "appropriate words
    of incorporation" sufficient to incorporate the list of items to be seized. 
    Groh, 540 U.S. at 557-58
    . Given our caselaw approving the use of incorporated documents to
    -16-
    satisfy the particularity requirement, it was objectively reasonable for an officer with
    Detective Rexford's knowledge and involvement in the warrant application process
    to rely on the warrant as incorporating the list of items to be seized from the affidavit,
    even if we were now to conclude that the words of incorporation were less than clear.
    While there is some ambiguity about whether the phrase "See Attached Affidavit" was
    intended to refer to the list of items to be seized, the phrase is sufficient to distinguish
    this case from Groh, which clearly made no reference to another document. Although
    "the warrant was not a model of clarity, we nonetheless cannot say that [the] warrant
    was so facially deficient that the executing officers could not reasonably have
    presumed it to authorize" seizure of the items included in the attached affidavit.
    United States v. Watson, 
    498 F.3d 429
    , 433 (6th Cir. 2007) (internal marks and
    citations omitted) (distinguishing Groh as involving a far more conspicuous error).
    Our conclusion that the exclusionary rule should not be applied in this case is
    buttressed by the Supreme Court's most recent discussion of the exclusionary rule in
    Herring, where exclusion of evidence from a criminal trial was directly at issue. In
    Herring, the Court noted that "the abuses that gave rise to the exclusionary rule
    featured intentional conduct that was patently 
    unconstitutional." 129 S. Ct. at 702
    .
    The Court described cases in which exclusion was the proper remedy, including
    Weeks v. United States, 
    232 U.S. 383
    , 393-94 (1914), which involved police officers
    who broke into the defendant's home, took incriminating papers, and later returned
    with a U.S. Marshal to confiscate more, all without a search warrant or the
    information required to obtain one. 
    Herring, 129 S. Ct. at 702
    . It also described
    Silverthorne Lumber Co. v. United States, 
    251 U.S. 385
    , 390 (1920), where officers
    "'made a clean sweep' of every paper they could find" "'without a shadow of
    authority,'" and Mapp v. Ohio, 
    367 U.S. 643
    , 644-45 (1961), where officers forced
    open the defendant's door, refused to allow her attorney to enter, and brandished a
    false warrant as authority for their search for obscenity. 
    Herring, 129 S. Ct. at 702
    .
    The Court distinguished these cases from the type of error involved in Herring, which
    it characterized as "[a]n error that arises from nonrecurring and attenuated
    -17-
    negligence," concluding that "the exclusionary rule serves to deter deliberate, reckless,
    or grossly negligent conduct, or in some circumstances recurring or systemic
    negligence." 
    Id. Detective Rexford's
    conduct cannot be construed as more than nonrecurring
    negligence. He prepared both the affidavit and the warrant, initially including the list
    of items in both but inadvertently deleting the list from the face of the warrant in
    correcting another clerical error. The warrant clearly incorporated the affidavit. The
    circuit judge signed both the warrant and the affidavit. And Detective Rexford, with
    full knowledge of the items authorized to be seized, carefully executed the warrant,
    seizing only those items included in the list of items in the affidavit. This is not the
    type of case for which the deterrent effect of excluding evidence outweighs the social
    costs of "letting guilty and possibly dangerous defendants go free–something that
    'offends basic concepts of the criminal justice system.'" 
    Herring, 129 S. Ct. at 701
    (quoting 
    Leon, 468 U.S. at 908
    ); see also 
    Watson, 498 F.3d at 434
    (holding that
    suppression of evidence would not deter police conduct "that can be characterized as
    a minor, unintentional drafting oversight," unnoticed by either the drafting officer or
    the issuing judicial commissioner).
    Even if the warrant in this case failed to meet the particularity requirement of
    the Fourth Amendment's Warrant Clause, Detective Rexford's actions were
    objectively reasonable in believing that the warrant and its reference to the affidavit
    authorized the seizure of the items removed from Hamilton's residence on May 30,
    2007. We therefore affirm the district court's denial of Hamilton's motion to suppress
    the evidence seized pursuant to the warrant.
    III.
    The judgment of the district court is affirmed.
    ______________________________
    -18-