United States v. Sheehan ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1983
UNITED STATES OF AMERICA,
Appellee,
v.
DEREK SHEEHAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Lynch, Circuit Judges.
Robert L. Sheketoff, with whom Sheketoff & O'Brien was on
brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Rachael S. Rollins, United States Attorney, was on brief, for
appellee.
June 8, 2023
SELYA, Circuit Judge. Defendant-appellant Derek Sheehan
appeals both the district court's refusal to suppress the seizure
of his cell phone and its refusal to suppress evidence of child
pornography. We conclude that the seizure of the cell phone was
lawful, but that the warrant authorizing the search of his
electronic devices containing the child-pornography evidence was
neither supported by probable cause nor within the good-faith
exception to the warrant requirement. Accordingly, we affirm in
part and reverse in part the district court's denial of Sheehan's
motion to suppress, vacate both Sheehan's conviction and his
conditional guilty plea, and remand for further proceedings
consistent with this opinion.
I
When reviewing the disposition of a motion to suppress,
"[w]e rehearse the facts as supportably found by the district
court," supplementing those facts (as may be necessary) "with
uncontested facts drawn from the broader record." United States
v. Adams, 971 F.3d 22, 28 (1st Cir. 2020). With this standard in
mind, we first canvass the relevant facts and then trace the travel
of the case.
A
On June 28, 2018, a woman reported to police in Norwell,
Massachusetts, that Sheehan had sexually assaulted her younger
brother, who was a friend of Sheehan's son. A seven-week
- 2 -
investigation followed, during which state and local police
conducted a series of interviews with several children and their
parents, all of whom were apparently acquainted with Sheehan and
his family.
From those interviews, the police learned of an
elaborate ruse through which Sheehan ostensibly had attempted to
dispel or preempt any suspicions the other parents might have had
that he was a pedophile. In a series of interviews, the parents
independently told a similar tale: that Sheehan had earlier said
that he had been the subject of a state police investigation after
text messages between two children describing him as a pedophile
had been unearthed by administrators at the children's school.
According to the parents, Sheehan said that the
investigation had exonerated him. In support, he showed them what
purported to be both a state police file and an email exchange
between him and the school resource officer. The parents described
the supposed police file as being hundreds of pages in length and
imprinted with the emblem of the Massachusetts State Police. But
all of this was made up out of whole cloth: unbeknownst to the
parents, Sheehan had never before been either the subject or the
target of any such investigation.
- 3 -
Police officers also learned that Sheehan had created an
"Apple ID" account for the child he had allegedly assaulted.1 By
creating such an account, Sheehan was able to monitor that child's
text messages, pictures, and videos. Indeed, the police were told
that Sheehan had used a desktop computer in his home to spy on
that child's text messages. One of those messages, sent to another
child in January of 2018, described Sheehan as a "literal child
rpst [sic]."
On August 1, 2018, police officers tried to interview
Sheehan at his home. Because he was not there at the time, they
instead spoke to his wife. She denied ever having seen the state
police file described by the other parents. Before leaving,
though, the officers informed her that Sheehan was under
investigation.
On August 16, one of the parents called the Norwell
police to report that Sheehan and his wife had spoken to her by
telephone a few days earlier. Their stated intention was to deter
her from cooperating with the investigation. They told her, among
1 According to the affidavit submitted in support of the
warrant to search Sheehan's home, the interview from which the
police learned that Sheehan had created the Apple ID account
occurred on August 17 (the day after the application for that
warrant had been approved). It is unclear whether the date is a
typographical error or whether the affidavit was somehow amended
after the warrant issued. In all events, Sheehan does not
challenge the warrant itself. Absent a better explanation, we
assume — for argument's sake — that the date of the interview was
recorded incorrectly.
- 4 -
other things, that the police were dissembling about Sheehan and
could not be believed. In that conversation, Sheehan also told
the parent that she should inform the police that he had done
nothing wrong.
That evening, a Norwell police officer, Kayla Puricelli,
applied for a search warrant. The application expressly
incorporated by reference an attached affidavit, which described
the evidence gathered by the police during their interviews with
the parents and children. Additionally, the affidavit referred to
evidence, obtained by state police, that Sheehan had created two
email accounts. He created one such account in the name of the
school resource officer, and he created the other in the name of
the child whom he had allegedly assaulted.
Based on those facts, the affidavit stated that there
was probable cause to believe that Sheehan had committed the crimes
of identity fraud, unauthorized access to a computer, witness
intimidation, and impersonation of a police officer. See Mass.
Gen. Laws ch. 266, §§ 37E, 120F, ch. 268, §§ 13B, 33. To obtain
additional evidence of those crimes, the affidavit (and thus the
warrant application) sought authorization to seize, and
subsequently search, any electronic devices found within Sheehan's
home that could transmit or store digital data, including cell
phones. An assistant clerk of the Hingham District Court issued
the warrant (with docket number 1858SW0035), which authorized the
- 5 -
search of Sheehan's house and person, but not the search of any
other person within the home.
The following morning — wielding an arrest warrant
separately obtained by the Massachusetts State Police — officers
arrested Sheehan for indecent assault and battery of a child under
the age of fourteen, see Mass. Gen. Laws ch. 265, § 13B, and
witness intimidation, see id. ch. 268, § 13B. The officers then
searched Sheehan's home pursuant to the warrant obtained by Officer
Puricelli, seizing myriad electronic devices in the process.2
Sheehan's wife had his cell phone in her possession at
the time of the search. While his arrest was taking place, Sheehan
asked his wife to call a lawyer. That is when the arresting
officers seized the phone: in Sheehan's words, one of the officers
"grabbed [his] wife by the arm, twisted her arm[,] and removed the
phone from her hand."3
2 In addition, the police seized a tobacco container,
electronic cigarette cartridges, and three unopened bottles of
root beer. It is not immediately apparent why the police believed
that those items were responsive to the warrant, which authorized
only the seizure of computers and electronic devices capable of
storing or transmitting digital data. But because that issue does
not bear directly upon the current appeal, we do not probe the
point more deeply.
3 Sheehan's affidavit states that the search and arrest
occurred on August 12. But the affidavit was entered into the
record when Sheehan moved for reconsideration of the district
court's denial of his motion to suppress the fruits of the August
17 search. Given both the context in which the affidavit was
offered and the record as a whole, it can safely be assumed that
the affidavit describes the August 17 search. The government
- 6 -
Shortly thereafter, state prosecutors moved to impound
the search warrant because it contained information that could
possibly identify juvenile victims of sexual assault. On August
20, a justice of the Hingham District Court granted the motion.
On August 29, Officer Puricelli applied for a second
search warrant, this time seeking to search the electronic devices
seized from Sheehan's home for evidence of possession of child
pornography. See Mass. Gen. Laws ch. 272, § 29C. Like the first
warrant application, the second expressly incorporated an attached
affidavit. In that affidavit, Officer Puricelli stated that
because she had submitted the affidavit "for the limited purpose
of securing a search warrant," she had refrained from including
"each and every fact known to [her] concerning th[e]
investigation." Instead, the affidavit "set forth only those facts
that [she] believe[d] [were] sufficient to establish the requisite
probable cause for a search warrant."
The affidavit then recounted, in pertinent part, that a
seven-week police investigation had culminated in the issuance of
an arrest warrant for Sheehan and a search warrant for his home
(both of which were executed on August 17). The electronic devices
seized in that search were then taken into custody by the
Massachusetts State Police Computer Crimes Unit. A state trooper
asserts as much in its briefing, and Sheehan does not dispute the
point.
- 7 -
from that unit notified Officer Puricelli that — while downloading
digital evidence from Sheehan's phone — he had seen "pictures he
believed to be child pornography." According to the affidavit,
"[t]he pictures consisted of images of prepubescent penises that
lacked pubic hair." Based solely on that description and the fact
of Sheehan's arrest, the second application sought a warrant to
search all devices seized from Sheehan's home for evidence of
possession of child pornography.
Other than stating that Sheehan had been arrested for
indecent assault and battery on a child under the age of fourteen
in violation of Mass. Gen. Laws ch. 265, § 13B, the second
affidavit neither provided details of the alleged assault nor
recounted any facts drawn from the initial investigation. By the
same token, the second application did not contain copies of any
of the supposedly pornographic images. And although the affidavit
attached to the second application made clear that the devices to
be searched had been seized pursuant to the first search warrant
(which the second affidavit identified specifically by docket
number), the second affidavit at no point expressly incorporated
by reference the first search warrant, the application for that
warrant, or the affidavit furnished in support of that application.
Officer Puricelli did state in the second affidavit that
she had "previously submitted the same application relative to
[the electronic devices]," but she made pellucid that the prior
- 8 -
application had been "based on probable cause for other crimes."
What is more, she stated that she had "not previously submitted
the same application" as it related to the crime of possession of
child pornography. (Emphasis in original). She also reiterated
that distinction on the form for the second warrant application.
An assistant clerk of the Hingham District Court — albeit
not the assistant clerk who approved the first warrant — authorized
the search. The second warrant issued with docket number
1858SW0036. The ensuing search uncovered videos of Sheehan
sexually abusing a child on three separate occasions. Based on
that evidence, he was charged in state court with several offenses,
including three counts of aggravated rape of a child in violation
of Mass. Gen. Laws ch. 265, § 22A.
B
Federal criminal charges followed. On September 19,
2018, a criminal complaint was filed in the United States District
Court for the District of Massachusetts, charging Sheehan with
three counts of sexual exploitation of children. See 18 U.S.C.
§ 2251(a), (e). On October 25, a federal grand jury returned an
indictment on those charges and added a child-pornography
forfeiture allegation, see id. § 2253.
In due season, Sheehan moved to suppress the evidence
obtained pursuant to both the first and second search warrants.
As relevant here, he contended that the police exceeded the scope
- 9 -
of the first warrant by seizing his phone from his wife, given
that the warrant did not authorize the search of anyone in the
home (apart from Sheehan himself). He also contended that the
second warrant was unsupported by probable cause because the
application for the warrant neither attached a copy of the image(s)
to which the search was directed nor described the image(s) with
sufficient detail such that a neutral magistrate could determine
whether there was probable cause that the alleged object or objects
of the search were pornographic. See United States v. Brunette,
256 F.3d 14, 17-19 (1st Cir. 2001).
The district court was unconvinced. As to Sheehan's
phone, the court held that Sheehan lacked standing to contest the
seizure of his phone from his wife's possession. See United States
v. Sheehan, No. 18-10391, 2020 WL 429447, at *6 n.10 (D. Mass.
Jan. 28, 2020). So, too, it held that the description of the
allegedly pornographic images contained in the second warrant
affidavit was sufficiently detailed to establish probable cause
that child pornography would be found on the devices. See id. at
*5. Accordingly, the motion to suppress was denied. See id. at
*7. Sheehan moved for reconsideration, but the district court
summarily denied that motion.
On July 20, 2021, Sheehan entered a conditional guilty
plea, pursuant to a plea agreement, to all counts charged in the
indictment. See Fed. R. Crim. P. 11(a)(2). His plea was
- 10 -
contingent upon the retention of his right to appeal the district
court's denial of his motion to suppress. On November 23, Sheehan
was sentenced to serve a 540-month term of immurement. This timely
appeal followed.
II
When reviewing a denial of a motion to suppress, we
examine the district court's "factual findings for clear error and
its legal conclusions, including its ultimate constitutional
determinations, de novo." United States v. Moss, 936 F.3d 52, 58
(1st Cir. 2019). We may uphold a suppression ruling on any ground
made manifest in the record. See id.; United States v. Ackies,
918 F.3d 190, 197 (1st Cir. 2019).
The Fourth Amendment provides that
[t]he right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no 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.
U.S. Const. amend. IV. Sheehan contends, as he did below, that
the evidence arrayed against him was obtained in violation of these
safeguards both because the police exceeded the scope of the first
search warrant and because the second search warrant was issued
without a sufficient showing of probable cause. We address these
contentions in turn.
- 11 -
III
We start with Sheehan's remonstrances concerning the
seizure of his cell phone. "Whether a search exceeds the scope of
a search warrant is an issue we determine through an objective
assessment of the circumstances surrounding the issuance of the
warrant, the contents of the search warrant, and the circumstances
of the search." United States v. Pimentel, 26 F.4th 86, 92 (1st
Cir. 2022) (quoting United States v. Hitchcock, 286 F.3d 1064,
1071 (9th Cir.), amended on other grounds, 298 F.3d 1021 (9th Cir.
2002)). Here, the first search warrant unmistakably authorized
the police to search Sheehan's residence and his person in order
to seize any handheld digital devices or cell phones. It did not,
however, authorize the search of any other person.
Sheehan contends that the seizure of his phone was the
result of a warrantless search of his wife. He points to no
evidence to support this theory other than statements by the
government before the district court that the phone had been "with"
Sheehan's wife at the time of the search. Sheehan asserts that
such a statement is indicative of his wife having been searched by
the police and that, at the very least, additional evidence should
have been taken on the issue.
The district court declined to address this issue on the
merits. Instead, it held that Sheehan lacked standing to challenge
the seizure of the phone from his wife's possession. On appeal,
- 12 -
the government does not press the standing issue but, rather,
invites us to affirm the district court's ruling on an alternative
ground: that no search of Sheehan's wife occurred and that the
seizure of the phone was within the scope of the warrant.
We accept the government's invitation and find its
arguments persuasive. "A search within the meaning of the Fourth
Amendment occurs whenever the government intrudes upon any place
and in relation to any item in which a person has a reasonable
expectation of privacy." Moss, 936 F.3d at 58. There is no such
intrusion, though, when an object is simply held in one's hand and
the officer on the scene can see that the held object is subject
to seizure pursuant to the terms of a warrant. See United States
v. Corleto, 56 F.4th 169, 177-78 (1st Cir. 2022).
This is such a case. Sheehan points to no evidence that
the phone was concealed on his wife's person. Nor does he point
to any evidence that the police patted her down or rummaged through
her pockets to obtain it. Rather — according to Sheehan's own
account of events — the police pried the phone from her hand. What
Sheehan has described, then, is a seizure of personal property.
See United States v. Jacobsen, 466 U.S. 109, 113 (1984) (defining
a seizure of personal property as "some meaningful interference
with an individual's possessory interests in that property"). The
first search warrant authorized such a seizure, and Sheehan makes
no argument that — to the extent his wife was not searched — the
- 13 -
seizure of the phone was not authorized by the warrant. We
therefore uphold the seizure of the phone under the first search
warrant.
IV
This brings us to Sheehan's argument that the second
search warrant was unsupported by probable cause. A finding of
probable cause "demands proof sufficient to support a fair
probability that a crime has been committed and that evidence of
that crime is likely to be found within the objects to be
searched." United States v. Coombs, 857 F.3d 439, 446 (1st Cir.
2017). When assessing whether such a finding is justified, we
look to the totality of the circumstances as they are set forth in
the warrant application and its accompanying affidavit, see
Illinois v. Gates, 462 U.S. 213, 238 (1983), mindful that "[t]he
probable cause standard 'is not a high bar,'" Adams, 971 F.3d at
32 (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)).
That standard requires only "the kind of 'fair probability' on
which 'reasonable and prudent [people,] not legal technicians,
act.'" Florida v. Harris, 568 U.S. 237, 244 (2013) (alteration in
original) (quoting Gates, 462 U.S. at 238, 231).
Even so, "[s]ufficient information must be presented to
the magistrate to allow that official to determine probable cause;
his action cannot be a mere ratification of the bare conclusions
of others." Gates, 462 U.S. at 239. Thus, in reviewing the
- 14 -
issuance of a warrant, we look to "ensure that the magistrate had
a substantial basis for concluding that probable cause existed."
United States v. Joubert, 778 F.3d 247, 252 (1st Cir. 2015)
(quoting Gates, 462 U.S. at 238-39).
In the court below, Sheehan challenged the second search
warrant on the ground that the second affidavit's description of
the nude images as seen by the state trooper was not sufficiently
specific to establish probable cause for possession of child
pornography. The court rejected that challenge, and Sheehan renews
it on appeal.
A
Sheehan's argument rests heavily on our decision in
United States v. Brunette, in which we held that a law enforcement
officer's assessment that images constituted child pornography
could not, on its own, support a finding of probable cause
sufficient to justify the issuance of a search warrant. See 256
F.3d at 16-19. There, the affidavit submitted by the officer
stated that images linked to the defendant depicted "a prepubescent
boy lasciviously displaying his genitals" — a description that
simply parroted the statutory definition of child pornography
without providing any detail about the specific images in question.
Id. at 17 (quoting United States v. Brunette, 76 F. Supp. 2d 30,
37 (D. Me. 1999)); see 18 U.S.C. § 2256(2)(A)(v). We determined
that such "conclusory statutory language" could not alone
- 15 -
establish probable cause because it left the magistrate without
sufficient facts from which to determine independently if the
images constituted child pornography. Brunette, 256 F.3d at 19.
We also wrote, albeit in dictum, that "[a] judge cannot ordinarily
make [a probable cause] determination without either a look at the
allegedly pornographic images, or at least an assessment based on
a detailed, factual description of them." Id. at 18.
Sheehan argues that the second affidavit's description
of "pictures consist[ing] of images of prepubescent penises that
lacked pubic hair" is equally conclusory and therefore
insufficient to ground a showing of probable cause. The government
demurs, insisting that the affidavit's description of the images
is far more specific than that offered in Brunette.
As a threshold matter, our probable cause inquiry is
shaped by the specific crime for which the police sought evidence.
The second warrant authorized the search of Sheehan's devices for
evidence of possession of child pornography as proscribed by state
law — not federal law (as was the case in Brunette). Compare Mass.
Gen. Laws ch. 272, § 29C with 18 U.S.C. § 2252A. For present
purposes, though, that is a distinction without a difference:
although Massachusetts law defines child pornography as conveying
a "lewd exhibition" of children (whereas federal law uses the term
"lascivious exhibition"), the Massachusetts Supreme Judicial Court
(SJC) has held that the state and federal definitions are
- 16 -
synonymous. See Commonwealth v. Rex, 11 N.E.3d 1060, 1069 n.14
(Mass. 2014). Thus, case law concerning the sufficiency of a
probable cause showing for possession of child pornography under
federal law may inform our analysis here.
Against this backdrop, we hasten to add that child nudity
alone does not make an image pornographic. See United States v.
Amirault, 173 F.3d 28, 33 (1st Cir. 1999); Rex, 11 N.E.3d at 1068.
Instead, the images at issue must be "lewd" (or in the federal
context "lascivious") in nature. See Mass. Gen. Laws ch. 272,
§ 29C; 18 U.S.C. § 2256(2)(A)(v). In making this determination,
courts consider the following factors:
1) whether the focal point of the visual
depiction is on the child's genitalia or pubic
area;
2) whether the setting of the visual depiction
is sexually suggestive, i.e., in a place or
pose generally associated with sexual
activity;
3) whether the child is depicted in an
unnatural pose, or in inappropriate attire,
considering the age of the child;
4) whether the child is fully or partially
clothed, or nude;
5) whether the visual depiction suggests
sexual coyness or a willingness to engage in
sexual activity; [and]
6) whether the visual depiction is intended or
designed to elicit a sexual response in the
viewer.
- 17 -
Rex, 11 N.E.3d at 1069 (alteration in original) (quoting United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)); see
Amirault, 173 F.3d at 31-32 (adopting Dost factors in review of
sentencing enhancement); Brunette, 256 F.3d at 18 (same in review
of probable cause determination for warrant).4 It follows that
the second affidavit's description of the images on Sheehan's phone
could only have established probable cause by providing enough
detail for the magistrate to determine — in light of those factors
— that the images seen by the state trooper were sufficiently
"lewd," such that they were indicative of child pornography.
We hold that the affidavit failed to cross this
threshold. Its cursory description that the trooper saw "images
of prepubescent penises that lacked pubic hair" did little more
than signify that the images contained child nudity. That
description offered no detail as to the focus of the images, how
the children were positioned in the images, or whether the images
were sexually provocative in any other respect. See Rex, 22 N.E.3d
at 1070-71. As was the case in Brunette, the affidavit here failed
We caution that although we find these factors "generally
4
relevant" and useful for the guidance they provide, they are
"neither comprehensive nor necessarily applicable in every
situation." Amirault, 173 F.3d at 32. A determination of an
image's lasciviousness "will always be case-specific." Id.; see
United States v. Charriez-Rolón, 923 F.3d 45, 52-53 (1st Cir.
2019).
- 18 -
to provide a "reasonably specific description" from which to assess
probable cause. Brunette, 256 F.3d at 19.
The government asserts, unconvincingly, that the use of
the phrase "consisted of" in the warrant application's explanation
that "[t]he pictures consisted of images of prepubescent penises
that lacked pubic hair" denoted a focus on child genitalia. This
is whistling past the graveyard: the assertion that the images
"consisted of" genitalia means only that the genitalia was a
constituent part of the images. See 3 The Oxford English
Dictionary 772 (2d ed. 1989) (defining "consist of" as "to be made
up or composed of; to have as its constituent substance or
elements"). It says nothing as to the focus of the images. The
affidavit's description of the images thus failed to make the
necessary showing of lewdness needed to establish probable cause
of possession of child pornography.
B
That the description of the images in the second
affidavit — when viewed in isolation — failed to establish probable
cause does not end our inquiry. After all, Brunette addressed a
narrow circumstance in which the only proof offered to show
probable cause was the description of the allegedly pornographic
images. See 256 F.3d at 17. Where, as here, an affidavit contains
additional facts probative of child pornography, we consider the
otherwise deficient image description within a broader context to
- 19 -
determine whether the totality of the circumstances, as set forth
in the affidavit, justifies a finding of probable cause. See
United States v. Chiu, 36 F.4th 294, 298 (1st Cir. 2022).
In that respect, federal law differs from Massachusetts
law, which does not factor into the probable cause calculus "other
ancillary evidence that may be suggestive of the defendant's state
of mind," and instead focuses exclusively on evidence of "what is
visually portrayed in the pictures themselves." Rex, 11 N.E.3d at
1068 n.13. Even so, evidence obtained by state officials while
investigating a violation of state law is admissible in federal
proceedings if it is obtained in conformity with the Constitution.
See United States v. Syphers, 426 F.3d 461, 468-69 (1st Cir. 2005).
Consequently, we must evaluate whether the second warrant
application and affidavit, taken as a whole, comported with the
requirements of the Fourth Amendment — regardless of the
requirements imposed by state law. See United States v.
Sutherland, 929 F.2d 765, 769 (1st Cir. 1991).
The issue, then, is whether those documents provided a
sufficient basis from which a neutral magistrate could
independently determine if the images that were the object of the
search were lewd in nature. To that end, the second affidavit
makes only a scant showing. In addition to the cursory description
of the images seen by the state trooper, the affidavit states that
after a seven-week investigation, Sheehan was arrested for
- 20 -
indecent assault and battery of a child under the age of fourteen,
that the police searched his home pursuant to a search warrant,
and that the search yielded several electronic devices. Refined
to bare essence, the second affidavit offers only two unconnected
data points relevant to the probable cause determination: that
Sheehan was arrested for indecent assault and battery of a child
and that images of child nudity were seen on his phone.
Such a meager showing cannot establish probable cause.
It is true that "[p]robable cause does not require either certainty
or an unusually high degree of assurance." United States v. Morel,
922 F.3d 1, 11 (1st Cir. 2019) (quoting United States v. Clark,
685 F.3d 72, 76 (1st Cir. 2012)). Still, "[a]n affidavit must
provide the magistrate with a substantial basis for determining
the existence of probable cause." Gates, 462 U.S. at 239. The
second affidavit provides almost no basis, never mind a substantial
basis, from which the magistrate could infer that Sheehan's phone
contained child pornography. It does not supply any additional
details about the alleged assault or Sheehan's pedophilic
tendencies. It does not state that Sheehan used a computer as
part of a ploy to prey upon children or that he recorded any of
his assaults. It does not even convey facts, or an opinion by the
affiant-officer based on training and experience, to suggest that
perpetrators of child sexual abuse frequently trade in child
pornography. The short of it is that nothing in the affidavit
- 21 -
would permit a magistrate to infer that the assault for which
Sheehan was arrested increased (to the degree required by the
probable cause standard) the likelihood that evidence of child
pornography would be found on his phone. Conjecture or hunch
cannot fill this void.
In each previous case in which we have affirmed a
magistrate's finding of probable cause for possession of child
pornography, the challenged affidavit presented a far more robust
factual showing from which to conclude that the images sought were
child pornography. See Chiu, 36 F.4th at 298-99 (finding probable
cause when affidavit conveyed not only statements that defendant
viewed child pornography, but also evidence of defendant's online
behavior and his technical skill in surreptitiously obtaining
child pornography over internet); United States v. Burdulis, 753
F.3d 255, 260-61 (1st Cir. 2014) (finding that defendant's email
statements offering to send pornographic images to undercover
officer posing as a minor online, as well as defendant's
transmission of nude image of himself to officer, established
probable cause to search for child pornography). And we have ruled
before that an allegation of child sexual assault does not provide
probable cause to search a defendant's computer or electronic
devices in the absence of facts connecting the assault to the
devices in question. See United States v. Cordero-Rosario, 786
F.3d 64, 70-71 (1st Cir. 2015) (holding that probable cause was
- 22 -
not established to search computer for evidence of child
molestation when affidavit included nothing more than fact that
defendant was under investigation for that crime and allegation of
pornography on computer); cf. Joubert, 778 F.3d at 251-53(upholding search of electronic devices for evidence of child
molestation when affidavit stated that defendant photographed and
video-recorded his victims).
None of this is to say that evidence of child molestation
or sexual assault cannot in some instances be probative of
possession of child pornography. Such evidence may support a
finding of probable cause when the assault is presented within a
context that makes the possession of child pornography more likely.
See Syphers, 426 F.3d at 466 (considering in probable cause
analysis for possession of child pornography allegation that
defendant photographed and fondled minor girls, sexually explicit
pictures found in his home that featured minor girls, and evidence
that he accessed website trafficking in pornographic videos
featuring the same). But the affidavit must present that context
and cannot rely on the magistrate to presume a connection between
an assault charge and the possession of child pornography. See
United States v. Falso, 544 F.3d 110, 120-22 (2d Cir. 2008)
(holding that allegation that defendant attempted to access child
pornography website, combined with prior conviction for child
sexual abuse, was insufficient to show probable cause for search
- 23 -
when no association between those two facts was "stated or
supported"); see also United States v. Perkins, 850 F.3d 1109,
1119-21 (9th Cir. 2017).
The bottom line is that a cursory description of images
of child nudity, coupled with the unconnected fact that the
defendant was charged with indecent assault and battery of a child,
does not, without further elaboration and factual support, suffice
to show probable cause of possession of child pornography. See
United States v. Pavulak, 700 F.3d 651, 663 (3d Cir. 2012); United
States v. Doyle, 650 F.3d 460, 472-74 (4th Cir. 2011). So it is
here — in the absence of additional proof establishing some
relation between those two facts, the magistrate was left without
any substantial basis from which to infer probable cause.
C
The government strives to persuade us that we should
expand the universe of facts available to the magistrate by
considering not only the information provided in the second
affidavit but also the "additional contextual and investigatory
details" provided in the first affidavit. We are not convinced.
Following the government's lead would offend the rule that we must
limit our assessment of probable cause to "information provided in
the four corners of the affidavit supporting the warrant
application." Morel, 922 F.3d at 12 n.10 (quoting United States
v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999)).
- 24 -
The government tries to avoid this rule. In its view,
the second affidavit incorporated the first, such that the facts
in the first affidavit "must be considered as well" in the probable
cause determination. As we explain below, this "incorporation"
theory is woven entirely out of gossamer strands of speculation
and surmise and — as such — does not withstand scrutiny.
1
To begin, the government suggests that Sheehan has
waived the right to argue against its incorporation theory. In
advancing this suggestion, the government submits that the
district court held the first affidavit to be incorporated into
the second affidavit and that Sheehan waived any right to contest
that incorporation by failing to make the argument in his opening
brief. We reject the government's characterization of the district
court's order and, thus, reject its argument.
The district court's order stated — in its survey of the
facts of the case — that "Puricelli did not specifically
incorporate by reference her first affidavit." Sheehan, 2020 WL
429447, at *2 n.3. Even so, the court stated that it was reasonable
to infer "that the second [magistrate] would have been aware of
the earlier warrant issued by his court" because Officer Puricelli
had "four times listed the docket number of the first warrant" in
the second affidavit; because she had "disclosed that the first
application involved the seizure of the same items as named in the
- 25 -
second [application]"; and because "the second warrant was given
the next successive docket number to the first." Id. It is
unclear, though, how such an inference — even if drawn — could be
said to come from within the four corners of the affidavit. And
in any event, the district court upheld the second warrant based
only on the second affidavit's description of the images, without
reference to any facts gleaned from the first affidavit. See id.
at *5. Consequently, it was not incumbent upon Sheehan to
challenge an incorporation theory that the government has teased
from an off-hand, and ultimately superfluous, footnote in the
district court's order. Cf. United States v. Jurado-Nazario, 979
F.3d 60, 62 (1st Cir. 2020) (explaining that an argument is not
waived when party "brought the issue to the court's attention 'at
the earliest point when it was logical to do so'" (quoting Holmes
v. Spencer, 685 F.3d 51, 66 (1st Cir. 2012))).
2
This brings us to the merits of the government's
argument. The government concedes that the incorporation it
envisions was not done explicitly. It nonetheless argues that the
second affidavit implicitly incorporated the first for the reasons
articulated by the district court: that it referred to the first
warrant by its docket number, that the electronic devices to be
searched had been seized pursuant to that warrant, and that the
second warrant issued with a docket number successive to the first.
- 26 -
From this concatenation of circumstances, we can assume, the
government insists, that the assistant clerk who authorized the
second warrant was aware of the facts contained in the first
affidavit (even though the first affidavit was not part of the
application for the second warrant).
The case law that it offers in support of this theory
cannot carry the weight that the government loads upon it. As an
initial matter, the line of cases cited by the government concerns
whether incorporated materials can cure defects in the
particularity or breadth of a search warrant. Those cases do not
directly address the incorporation of materials into a warrant
application.
Notwithstanding that distinction, we are aware of no
case — and the government has identified none — holding that the
mere mention of a document external to an affidavit (by docket
number or otherwise) implicitly incorporates the contents of that
document. Although the government cites cases signaling that no
specific verbiage is required for incorporation, those cases still
require language of some kind that expressly directs the reader's
attention to the purportedly incorporated materials. See, e.g.,
United States v. Lazar, 604 F.3d 230, 236 (6th Cir. 2010) (holding
that attachment's reference to "the below listed patients"
sufficed to incorporate patient list that accompanied warrant
application); United States v. SDI Future Health Inc., 568 F.3d
- 27 -
684, 700 (9th Cir. 2009) (upholding incorporation when warrant
used "suitable words of reference" that pointed explicitly to
incorporated material). There is certainly no support in the case
law for the proposition that merely alluding to a document, without
more, can alone suffice to incorporate that document by reference.
The government further contends that incorporated
materials need not physically accompany a warrant application that
is presented to a magistrate. But the cases that the government
cites in this regard address the separate issue of whether
incorporated materials must accompany a warrant during the
execution of a search. See, e.g., Baranski v. United States, 515
F.3d 857, 860-61 (8th Cir. 2008); United States v. Hurwitz, 459
F.3d 463, 471-72 (4th Cir. 2006). Nothing in those decisions
suggests that a magistrate — when determining whether sufficient
probable cause exists to authorize a warrant — may consider
unattached and external materials to which an affiant has only
obliquely alluded. What is more, the relevant case law in this
circuit holds that "[a]n affidavit may be referred to for purposes
of providing particularity if the affidavit accompanies the
warrant, and the warrant uses suitable words of reference which
incorporate the affidavit." Moss, 936 F.3d at 59 n.9 (alteration
and emphasis in original) (quoting United States v. Roche, 614
F.2d 6, 8 (1st Cir. 1980)); see United States v. Klein, 565 F.2d
183, 186 n.3 (1st Cir. 1977). Under this established circuit
- 28 -
precedent, incorporation would require both suitable words to that
effect and the attachment of the affidavit. See generally United
States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (explaining
law-of-the-circuit doctrine); United States v. Wogan, 938 F.2d
1446, 1449 (1st Cir. 1991) (same).
Those requirements were not satisfied here. Although
the second affidavit refers in passing to the first warrant by
docket number, it never specifically references the first
affidavit. That silence speaks volumes: it stands in stark
contrast to the express incorporation by reference of both
affidavits into their respective search warrant applications,
demonstrating that Officer Puricelli was aware of how to
incorporate documents properly into a warrant application. And
there is nothing in the record to suggest that the first affidavit
was attached to the second warrant application when it was
presented to the magistrate.
Finally, neither the second affidavit's reference to the
seizure of the items during the first search nor the fact that the
second search warrant issued with a docket number successive to
the first has much to do with the issue of incorporation. Together
those facts might, at most, suggest that Officer Puricelli
requested the second search warrant within the context of a larger
investigation. That suggestion, however, would be superfluous:
Officer Puricelli stated as much in the second affidavit. She
- 29 -
explained that the affidavit did not include every fact that she
knew about the investigation but, rather, "only those facts [she]
believe[d] [were] sufficient to establish the requisite probable
cause for a search warrant." It defies logic to discount such an
express statement directing the magistrate to the probable cause
showing made within the affidavit itself in favor of a theory of
implicit incorporation based on a web of attenuated inferences.
On these facts, there is simply no basis for concluding that the
second affidavit incorporated the first.
D
The fatal deficiencies of the second affidavit were
therefore left unremedied, and the second search warrant issued
without the required showing of probable cause.
V
When a warrant issues without probable cause, the
evidence obtained from the resultant search is ordinarily
suppressed. See Pimentel, 26 F.4th at 90. Suppression is
inappropriate, though, if the officer who conducted the search
acted in reliance upon the defective warrant and that reliance was
objectively reasonable. See Cordero-Rosario, 786 F.3d at 72. This
exception, familiarly known as the "good-faith exception," is
grounded in the principle that "the purpose of suppression is to
deter police misconduct, and when law enforcement officers have
obtained a search warrant in good faith and acted within its scope,
- 30 -
there is 'nothing to deter.'" Coombs, 857 F.3d at 446 (citation
omitted) (quoting United States v. Leon, 468 U.S. 897, 921 (1984)).
Notwithstanding the salutary considerations that have
spawned it, the good-faith exception is not a panacea for every
invalid warrant. Importantly, an officer cannot be said to have
relied on a warrant in good faith when the supporting affidavit is
"so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable." Leon, 468 U.S. at
923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)
(Powell, J., concurring in part)). That a magistrate approved the
warrant despite its obvious deficiencies does not mitigate the
unreasonableness of the officer's conduct. See Vigeant, 176 F.3d
at 572; see also Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986)
("The officer . . . cannot excuse [her] own default by pointing to
the greater incompetence of the magistrate."). And an officer's
reliance on a magistrate's approval of a facially deficient warrant
is especially unreasonable when those "deficiencies arise from the
failure of the [officer] conducting the search to provide the
required supporting information in the affidavit." Cordero-
Rosario, 786 F.3d at 72-73; cf. Groh v. Ramírez, 540 U.S. 551,
563-65 (2004) ("[B]ecause petitioner himself prepared the invalid
warrant, he may not argue that he reasonably relied on the
Magistrate's assurance that the warrant contained an adequate
description of the things to be seized and was therefore valid.").
- 31 -
In such circumstances, suppression "remains an appropriate
remedy." Leon, 468 U.S. at 923.
"The government bears the burden of showing that its
officers acted with objective good faith." Brunette, 256 F.3d at
17. In assessing the government's good-faith arguments, "we
evaluate all of the attendant circumstances at the time of the
warrant application and its execution." Id. Here, the government
has done little more than to state, in a conclusory fashion, that
there were sufficient facts indicative of probable cause such that
it was not objectively unreasonable for the officers to have relied
on the second search warrant. But the record, fairly read, belies
the government's optimistic characterization.
For a start, the second affidavit was "so lacking in
indicia of probable cause" that any reliance upon it was
objectively unreasonable. Leon, 468 U.S. at 923. As we already
have discussed, see supra Part IV(B), the affidavit encompassed
little more than a cursory description of the images seen on
Sheehan's phone and the bare fact of his assault — a showing so
bereft of factual support that no reasonable officer would have
thought the warrant valid. See Doyle, 650 F.3d at 470-76 (holding
that evidence of molestation and possession of nude images not
enough to engender good-faith reliance that warrant for child
pornography was supported by sufficient probable cause); United
States v. Hodson, 543 F.3d 286, 293 (6th Cir. 2008) (finding good-
- 32 -
faith exception did not apply when evidence of only child
molestation was used to obtain search warrant for child
pornography). And even though a magistrate ultimately approved
the warrant application, Officer Puricelli herself was responsible
for the warrant's defects: she had available a trove of other
information that she could have included in the warrant application
but which she chose to withhold. Her decision to submit a bare
bones affidavit and keep relevant data points to herself undercuts
any suggestion that she was justified in relying on the
magistrate's assurances of the warrant's legality. See Cordero-
Rosario, 786 F.3d at 72-73.
When we have upheld searches for child pornography under
the good-faith exception, we have done so based on affidavits that
exhibited much more specificity and diligence than the second
affidavit here. See United States v. Robinson, 359 F.3d 66, 67-
70 (1st Cir. 2004) (upholding warrant on good-faith grounds when
affidavit included evidence that defendant had surreptitiously
photographed adolescents, viewed pornography on his computer
around minors, and asked a child to pose provocatively for him);
see also Syphers, 426 F.3d at 466-68. So, too, other circuits —
in applying the good-faith exception — have done so only when the
affidavits at issue contained detailed information about the
history of the investigation and/or the defendant's pedophilic
predilections. See, e.g., United States v. Caesar, 2 F.4th 160,
- 33 -
174 (3d Cir. 2021) (holding good-faith exception applicable when
affidavit described receipt of tip from National Center for Missing
and Exploited Children, defendant's suspicious online behavior
seeking pictures of children in underwear, and evidence of sexual
abuse of two children); United States v. Edwards, 813 F.3d 953,
971-73 (10th Cir. 2015) (same when affidavit stated that defendant
had posted hundreds of images of child erotica, described some of
those images in detail, contained defendant's comments related to
those postings, and provided affiant-officer's opinion, based on
training and experience, that purveyors of child erotica also
possess child pornography). The affidavit prepared by Officer
Puricelli in connection with the application for the second search
warrant is conspicuously lacking in this level of detail.
Nor can it be said — even considering all the attendant
circumstances — that Officer Puricelli held an objectively
reasonable belief that her first affidavit was incorporated into
the application for the second search warrant. To be sure, the
second affidavit made clear that the devices to be searched had
been seized during a previous search of Sheehan's home and that a
prior warrant application concerning those items had been
submitted to the Hingham District Court. But those facts — whether
viewed singly or in the ensemble — do not form the basis for a
reasonable belief that the first affidavit was incorporated into
- 34 -
the second when considered within the context of the record as a
whole.
The record shows that the second affidavit stated that
it did not contain all the facts that the police had uncovered
during their investigation but, rather, included only those facts
that Officer Puricelli believed were "sufficient to establish the
requisite probable cause for a search warrant." Giving due
consideration to that statement, it would be wholly unreasonable
for an officer to presume that the magistrate — in making the
probable cause determination — was to incorporate sub silentio
facts that had been expressly excluded from the affidavit. We
note, as well, that each warrant application explicitly
incorporated its supporting affidavit by reference. Seen in this
light, it strains credulity to suggest that a reasonable officer
would have intended to incorporate additional materials without
using any suitable language, especially when there is no evidence
that those materials were ever submitted to the assistant clerk as
part of the warrant application.5 And the final straw is that
Officer Puricelli noted on the second warrant application that her
5 For this reason, the case at hand is easily distinguished
from those cases cited by our dissenting colleague, in which
officers were deemed to have had a good-faith basis for believing
in the incorporation of an affidavit that was attached to the
warrant application and to which the warrant application in some
way referred. See United States v. Tracey, 597 F.3d 140, 152-53
(3d Cir. 2010); United States v. Hamilton, 591 F.3d 1017, 1024-27
(8th Cir. 2010).
- 35 -
previous application for the seizure of the devices had not made
out probable cause for the crime of child pornography. A
reasonable officer, acknowledging that fact, would have understood
the need for the second warrant application to establish probable
cause on its own.
Our dissenting colleague seems to suggest that because
the first warrant and its accompanying application had been
impounded, Officer Puricelli could reasonably have believed that
it was inappropriate either to attach or to directly refer to those
documents (even while expecting the assistant clerk to understand
that those documents were implicitly incorporated by reference).
But any such belief would surely have been unreasonable, given the
Supreme Court's decision in Groh v. Ramírez, in which reliance on
a facially deficient warrant that failed either to incorporate or
to attach a sealed affidavit (which would have cured the warrant's
deficiencies) was deemed objectively unreasonable. 540 U.S. at
555, 563-65. For purposes of a Fourth Amendment analysis, there
is no material difference between the impounded warrant here and
the sealed affidavit in Groh, see Pixley v. Commonwealth, 906
N.E.2d 320, 328 n.12 (Mass. 2009), and a reasonable officer would
have known that to rely on the impounded warrant without
incorporating it properly was contrary to law.
Relatedly, we add that the record does not support the
notion that Officer Puricelli may have entertained a reasonable
- 36 -
belief that the assistant clerk was somehow apprised of the details
of Sheehan's case such that a proper showing of probable cause was
unnecessary. Although some personnel at the clerk's office of the
Hingham District Court may have been familiar with Sheehan's case
due to the first warrant application and the ensuing motion to
impound, each application or motion in this case was handled by a
different officer of that court. Short of rank speculation, there
is simply no basis from which to presume that the assistant clerk
who authorized the second search warrant was aware of the
investigatory information contained in the first affidavit.
We understand that the police have demanding jobs. The
good-faith exception is designed to cut police officers some slack
when they get close calls wrong. See Coombs, 857 F.3d at 446.
The case at hand, however, does not fit that mold: it exhibits a
failure in what is a core competency of a police officer —
presenting sufficient probable cause of a crime to a neutral
magistrate to justify the issuance of a warrant. Under the
circumstances of this case, the good-faith exception does not
apply, and suppression of the evidence is required. See Leon, 468
U.S. at 923.
VI
The expansion of the good-faith exception in Herring v.
United States, 555 U.S. 135 (2009), to cases involving police
negligence does not alter our analysis. In Herring, the Supreme
- 37 -
Court declined to apply the exclusionary rule to evidence obtained
by police after they effected an arrest pursuant to a facially
valid warrant, which — unbeknownst to them — had been recalled.
See id. at 138, 147-48. The Court explained that "when police
mistakes are the result of negligence . . . , rather than systemic
error or reckless disregard of constitutional requirements," the
"marginal deterrence" gained by the exclusionary rule fails to
justify the "harm to the justice system" wrought by letting a
criminal go free. Id. at 147-48. "To trigger the exclusionary
rule," Chief Justice Roberts wrote, "police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it,
and sufficiently culpable that such deterrence is worth the price
paid by the justice system." Id. at 144. Because the police
conduct in that case had not been "deliberate, reckless, or grossly
negligent," or the result of "recurring or systemic negligence,"
the Court declined to apply the exclusionary rule. Id.; see Davis
v. United States, 564 U.S. 229, 238 (2011) (stating that deterrent
effect of exclusionary rule is attenuated when police error stems
from isolated negligence).
The Herring Court took pains to anchor its holding to
precedent. See 555 U.S. at 144-46. Far from breaking new ground,
Herring applied the rationale elaborated in Leon: that the
exclusionary rule should not be invoked when the rule's social
costs outweigh the benefits derived from deterring police
- 38 -
misconduct. See Herring, 555 U.S. at 147-48; see also Leon, 468
U.S. at 909-10. Nothing in Herring suggests an expansion of the
good-faith exception to circumstances that Leon previously held to
be beyond the pale — such as the issuance of a warrant based on an
affidavit "so lacking in indicia of probable cause" as to render
any reliance on it "entirely unreasonable." Leon, 468 U.S. at
923. That is the situation presented here.
We do not read Herring to require an additional or
individualized assessment of the deliberateness and culpability of
police conduct in such circumstances. Submitting a warrant
application so deficient in probable cause such that no officer
could reasonably rely upon it is exactly the kind of police conduct
the exclusionary rule is meant to deter. See id. at 926("[S]uppression is appropriate only if the officers were dishonest
or reckless in preparing their affidavit or could not have harbored
an objectively reasonable belief in the existence of probable
cause."); United States v. Fuccillo, 808 F.2d 173, 178 (1st Cir.
1987) (holding that failure to furnish affidavit with "information
which was known or easily accessible" to police reflected reckless
conduct to which good-faith exception did not apply). To hold
otherwise would expand the good-faith exception to swallow, in a
single gulp, the warrant requirement itself. That cannot be the
- 39 -
law. If the good-faith exception is to have any limits, it cannot
encompass the police conduct that occurred here.6
VII
We need go no further. For the reasons elucidated above,
the district court's denial of the motion to suppress is affirmed
in part and reversed in part; the defendant's conviction and his
conditional guilty plea are vacated; and the case is remanded to
the district court for further proceedings consistent with this
opinion.
— Dissenting Opinion Follows —
Our dissenting colleague contends that the exclusionary rule
6
is inappropriate here because the first warrant supplied
sufficient probable cause to search Sheehan's electronic devices
in their entirety, rendering the second warrant altogether
unnecessary. In support, she relies on the decision in United
States v. Monell, 801 F.3d 34 (1st Cir. 2015), but that reliance
is misplaced. Monell itself distinguished Cordero-Rosario
because, although the affidavit at issue in Cordero-Rosario
"suffered from 'glaring deficiencies,'" the affidavit at issue in
Monell "provide[d] probable cause to believe that a crime involving
gun use had occurred, and that some evidence related to that crime
was in [the] apartment" that was searched. 801 F.3d at 42 (quoting
Cordero-Rosario, 786 F.3d at 71-72). As we have explained, the
second warrant issued in this case was supported by an affidavit
that was insufficient for the same reasons that the affidavit in
Cordero-Rosario was insufficient. Thus, Monell — on its own terms
— is of no help to the government's argument that we should uphold
the search conducted under the second affidavit on good-faith
grounds. And to the extent that our dissenting colleague suggests
that the first warrant, standing alone, provided an independently
sufficient basis for the government to search Sheehan's electronic
devices in a way that would have uncovered the images at issue,
the government has made no such argument to us.
- 40 -
LYNCH, Circuit Judge, dissenting. With respect, I
regret that the majority has improperly rejected the good-faith
exception to the exclusionary rule, which clearly applies here.
See United States v. Leon, 468 U.S. 897, 922-25 (1984); see also
Davis v. United States, 564 U.S. 229, 236-41 (2011); Herring v.
United States, 555 U.S. 135, 139-48 (2009). The majority errs in
concluding that the law of incorporation of earlier materials into
the second affidavit was so clear that the prophylaxis of
suppression is justified. And, regardless of whether the first
warrant was incorporated, exclusion is not justified on the cost-
benefit analysis described in Davis and Herring. Under binding
Supreme Court case law and First Circuit precedent, we are required
to affirm the district court's denial of the motion to suppress. I
dissent and would, as required by federal law, show greater respect
for the actions of the state judicial and law enforcement
officials.
The majority errs in holding that the second warrant,
dated August 29, 2018, was "based on an affidavit 'so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable,'" such that the good-faith
exception does not apply. Leon, 468 U.S. at 923 (quoting Brown v.
Illinois, 422 U.S. 590, 611 (1975) (Powell, J., concurring in
part)). In addition to recounting that Sheehan had been arrested
for indecent assault and battery of a child under the age of
- 41 -
fourteen and that the Computer Crimes Unit officer found "images
of prepubescent penises that lacked pubic hair" on Sheehan's
iPhone, this affidavit referred four times to the first warrant by
its docket number. The affidavit also made clear that it concerned
items that had been seized pursuant to the first warrant. And the
second warrant application was given the very next docket number
after the first warrant. Even if one assumes arguendo that the
first warrant needed to be incorporated into the affidavit, a
dubious proposition, this first warrant supplied highly probative
information, such as the fact that a witness reported that Sheehan
had access to a young boy's "texts, pictures and videos" and
"sp[ied]" on him. And, as I describe later, suppression would not
be justified here regardless of whether the first warrant was
incorporated.
The majority discounts other facts about the second
warrant application that bear on the incorporation inquiry. The
Massachusetts state court that issued the warrant is the Hingham
District Court. It is a small court. There can be no doubt that
the judicial officer who authorized the second warrant was aware
of the first warrant. And between the issuance of the first
warrant and the application for the second warrant, the court had
impounded the first warrant, affidavit, and return.7 This order
7 "The terms 'impounded' and 'sealed' are closely
related . . . . [A]n order of impoundment prevents the public, but
- 42 -
further explains why the second affidavit referred to the first
warrant by docket number rather than including details from this
earlier warrant.8
The majority's reliance on Groh v. Ramírez, 540 U.S. 551(2004), to argue that a reasonable officer could not have believed
that the second warrant application incorporated the first warrant
and warrant application is misplaced for multiple reasons. First,
Groh addressed the very different question whether a warrant that
completely failed to identify the property to be seized was valid.
Id. at 554. This violated the particularity requirement expressly
set forth in the Fourth Amendment. Id. at 557. Here, there is no
dispute that the second warrant application and affidavit
described the property to be seized with particularity. There was
no "glaring deficiency" in the warrant application akin to that at
issue in Groh. Id. at 564.
Further, Groh did not turn on arguments about documents'
sealed status, and the Court did not make new law on this point.
The Court declined to "explore the matter of incorporation" at any
length because it accepted the premise that "the warrant did not
not the parties, from gaining access to impounded material, unless
otherwise ordered by the court." Pixley v. Commonwealth, 906
N.E.2d 320, 328 n.12 (Mass. 2009).
8 In my view, the state court got it right when it issued
the second warrant. That is so even before the good-faith
exception is applied.
- 43 -
incorporate other [sealed] documents by reference." Id. at 558;
see id. at 554-55, 557-58. Groh did not decide whether the fact
that a document is sealed or impounded bears on the reasonableness
of an officer's belief as to the sufficiency of efforts to
incorporate that document. See id. at 557-58.
Two final points on Groh bear note. To the extent the
decision mentioned the Leon good-faith exception, that reference
predates the Court's expansion of the good-faith doctrine in
Herring and Davis. And Groh itself was the product of a divided
Court, with Chief Justice Rehnquist and Justices Scalia, Kennedy,
and Thomas all in dissent.
It was reasonable for the officers to believe that the
many indicia of incorporation, in combination with the other facts
in the second warrant, sufficed to show probable cause. See United
States v. Tracey, 597 F.3d 140, 152 (3d Cir. 2010) ("Even though
we conclude these efforts [to expressly incorporate an affidavit]
were not legally sufficient . . . it would be reasonable for an
officer in [this officer's] position to believe the affidavit was
properly incorporated and, therefore, the warrant was valid.");
United States v. Hamilton, 591 F.3d 1017, 1029 (8th Cir. 2010)
(concluding that it was reasonable for an officer to rely on a
warrant "even if [the court] were now to conclude that the words
of incorporation [used in the warrant] were less than clear"). It
is clear that there is no overcoming of the principle announced in
- 44 -
Leon. See 468 U.S. at 922 ("'[A] warrant issued by a magistrate
normally suffices to establish' that a law enforcement officer has
'acted in good faith in conducting the search.'" (quoting United
States v. Ross, 456 U.S. 798, 823 n.32 (1982))).
The majority and I also disagree about the contours of
the Leon good-faith exception after Davis and Herring. As stated,
my view is that the majority’s holding fails even the Leon test.
It certainly fails under the doctrinal changes worked by Davis and
Herring, which further restricted the use of the exclusionary rule.
See, e.g., United States v. Caesar, 2 F.4th 160, 169 (3d Cir. 2021)
(describing, in a warrant-based search case, Davis and Herring as
"further refine[ments to] the [Leon] good faith exception, placing
the culpability of the officer's misconduct at the center of the
deterrence analysis" and stating that "[i]t could be said that
these [cases] . . . further narrowed the scope of the exclusionary
rule"); R. Re, The Due Process Exclusionary Rule, 127 Harv. L.
Rev. 1885, 1887 (2014) (describing Herring as providing "the
doctrinal basis for radically curtailing the circumstances in
which the Fourth Amendment exclusionary rule might apply").
Herring instructs that "[t]he fact that a Fourth
Amendment violation occurred . . . does not necessarily mean that
the exclusionary rule applies" and that the exclusionary rule
applies only where "the benefits of deterrence . . . outweigh the
- 45 -
costs" of applying the rule. 555 U.S. at 140-41.9 "To trigger
the exclusionary rule, police conduct must be sufficiently
deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid
by the justice system." Id. at 144. Thus, exclusion is typically
proper only where officers engage in "deliberate, reckless, or
grossly negligent conduct," or, "in some circumstances," where
there is "recurring or systemic negligence." Id. Applying these
principles, the Herring Court held that a negligent recordkeeping
error that led an officer to make an arrest based on a recalled
warrant should not result in exclusion of the evidence found during
the arrest. See id. at 136-38, 147-48.
The Supreme Court reiterated this cost-benefit analysis
two years later in Davis. Davis emphasized that deterrence is
"the sole purpose of the exclusionary rule" and rejected the
argument that "facilitating the overruling of precedent" was a
relevant consideration. 564 U.S. at 246.
Our circuit has repeatedly relied on Davis and Herring
to conclude that the good-faith exception applies where a police
mistake amounts to isolated negligence rather than intentional,
reckless, or grossly negligent misconduct. See United States v.
9 Herring involved a defendant who was "no stranger to law
enforcement." 555 U.S. at 137. Similarly, Sheehan had been under
investigation for seven weeks before officers obtained an arrest
warrant.
- 46 -
Monell, 801 F.3d 34, 41 (1st Cir. 2015) (assuming warrant was
invalid but concluding that, under Herring, "the nature, effect,
and cause of this particular type of . . . invalidity are such as
to render the exclusionary rule inapplicable"); United States v.
Echevarría-Ríos, 746 F.3d 39, 40-41 (1st Cir. 2014) (finding good-
faith exception applicable where defendant failed to show that
officers engaged in intentional, reckless, or grossly negligent
misconduct in relying on procedurally defective warrant to arrest
him); see also United States v. Cruz-Ramos, 987 F.3d 27, 42 n.9
(1st Cir. 2021) (concluding that defendant waived applicability of
exclusionary rule where he did not engage in Herring cost-benefit
weighing analysis); United States v. Thomas, 736 F.3d 54, 60, 66
(1st Cir. 2013) (concluding that social costs of excluding DNA
sample obtained in earlier investigation would outweigh deterrent
value).
Here, there can be no possible deterrent effect to be
accomplished by excluding the evidence on the cost-benefit
analysis described in Davis and Herring. See United States v.
Szczerba, 897 F.3d 929, 939 (8th Cir. 2018) (applying good-faith
exception where officer "acted negligently in drafting the
warrant . . . [and] should have . . . ensured that the supporting
affidavit was incorporated into the warrant," but her "conduct
certainly did not reflect the type of deliberate, reckless, or
- 47 -
grossly negligent disregard for the Fourth Amendment that the
exclusionary rule can effectively deter").
That there could be no possible deterrent effect is
underscored by the fact that the officers here need not have taken
the cautious measure of applying for a second search warrant to
search the devices seized under the first warrant. The first
warrant authorized officers to search Sheehan's devices for
"computer data files or cellular / smart phone data files" in
relation to the four crimes set forth in that warrant:
impersonation of a police officer, witness intimidation,
unauthorized access to a computer system, and identity fraud. See
Mass. Gen. Laws ch. 266, §§ 37E, 120F; id. ch. 268, §§ 13B, 33.
This situation is thus similar to Monell, where we applied the
good-faith exception to a labeling error in an affidavit because,
if this error had not occurred, "there still would have been a
search" on a different basis, "that search would have been valid,"
and "precisely that evidence which was found in the search
challenged here would have been found in [the] valid search." 801
F.3d at 41. The majority attempts to distinguish Monell by
contending that its rule applies only when the affidavit at issue
is not "glaring[ly] deficien[t]." (Quoting id. at 42.) Even
assuming the validity of that premise, here -- for all the reasons
- 48 -
previously stated -- the second affidavit is not "glaringly
deficient."
With the greatest respect for my colleagues, I dissent.
- 49 -