The opinion of the court was delivered by: Stengel, J.
Michael Wright and his brother Randall Wright live a block apart from one another in Allentown and were suspected of distribution of marijuana in January of 2009. A confidential source working with DEA agents purchased a pound of marijuana from Randall Wright on January 13, 2009and another ounce on January 27, 2009. On January 27, 2009, agents executed search warrants at the apartments of both Michael and Randall Wright. They recovered four guns, several boxes of ammunition, approximately seven thousand nine hundred dollars, fifty pounds of marijuana, and various drug paraphernalia from Randall Wright's apartment. They recovered approximately one thousand dollars, forty-three pounds of marijuana, and drug paraphernalia from Michael Wright's apartment. Michael and Randall were arrested and questioned. Randall Wright admitted that he was a "small-time bud dealer." Following the searches, Michael Wright admitted to selling marijuana for one thousand fifty dollars per pound and told police that he was "responsible for the weed and guns."
The Wright brothers filed motions to suppress the evidence seized during the searches of their respective apartments. For the reasons discussed in the sections to follow, I will grant the motions.
I. Facts and Circumstances Relevant to the Search Warrants For the Residences of Michael Wright and Randall Wright Jeffrey
Taylor, an agent with the Drug Enforcement Agency, prepared an affidavit of probable cause to search the residences of Michael and Randall Wright on January 27, 2009. Tr. Suppress. Hr'g, 24:24--25:4, Apr. 27, 2010. At the suppression hearing, he testified that it is normal police practice to prepare a warrant application and a "face sheet," which is the warrant itself, both of which are pre-printed forms with blanks to be filled in by the agent or officer. Id. at 25:7--20. He normally drafts the affidavit of probable cause, but the United States Attorney's Office normally prepares the warrant application and face sheet. Id. at 25:7--26:1. In this case it appears that is exactly how it happened.
On the face sheet itself, at the place where the property to be searched is described, there is only Michael Wright's address and the phrase "SEE ATTACHMENT A." Gov. Ex. 1. Agent Taylor testified that "Attachment A" is normally a description of the property to be searched. Tr. at 29:18--23. The sheet of paper labeled "Attachment A" attached to the warrant indeed describes "26 South Howard Street, Third Floor, Allentown, PA" as an "apartment... on the third floor of a tan brick three-story structure located on the southwest corner of the intersection of Maple and South Howard Streets, Allentown." In other words, normal procedure was followed and the warrant adequately described the place to be searched by incorporation of Attachment A.
The problem in this case arises from the lack of any meaningful description of the items officers had authority to seize. On the face sheet, under the section in which the warrant should describe "a certain person or property" to be seized, there is only the phrase "SEE ATTACHED AFFIDAVIT OF PROBABLE CAUSE." The affidavit of probable cause is, in fact, attached to the warrant application. It describes two controlled drug buys the confidential informant made from Randall Wright and also states that the confidential informant had observed Michael Wright with large amounts of U.S. currency. Gov. Ex. 1. The affidavit states:
Based on the aforementioned facts, there is probable cause to believe that the fruits and instrumentalities of crimes in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 924(c), including but not limited to controlled substances, drug paraphernalia, to include packaging material; documents and items used to manufacture false identification; documents used in furtherance of drug activity, to include correspondence, drug ledgers, calendars, and telephone lists and directories; United States currency, photographs, phone numbers and phone bills, bank records, to include statements and canceled checks, and controlled substances for delivery to others, are contained at 1028 Hamilton Street, 1st Floor rear apartment, and 26 S. Howard Street, located in Allentown, Pennsylvania.
Agent Taylor testified that the section of the Michael Wright warrant that states "SEE ATTACHED AFFIDAVIT OF PROBABLE CAUSE," normally states "See Attachment B." Tr. at 30:6--21. Attachment B is usually a "listing of the items to be seized or searched for." Id. Attachment B was also missing from the warrant application (which is distinct from the warrant itself) for Michael Wright's residence. Tr. at. 42:18--20. On the warrant application, in the place normally reserved for "Attachment B," the application states "See ATTACHMENT A," which, as I have already described, is the description of the physical location of Michael Wright's residence. The inaccuracies and mistakes present on the application and warrant for Michael Wright's residence are present to the same extent on the application and warrant issued for Randall Wright's residence. Gov. Ex. 2; Tr. at 33:24--34:34.*fn1
The search warrant applications were approved by United States Magistrate Judge Arnold Rapaport, and he signed them on January 27, 2009. Gov. Ex. 1, 2. In addition to issuing the warrants, Judge Rapport granted the government's motion to impound the search warrants, the affidavits for the search warrants, and all subsequent inventory and docket papers. Id. The warrants were executed within the hour after they were issued that day. Tr. at 33:20--23.
Because the affidavit of probable cause had been impounded and the warrant did not include an Attachment B, nowhere on the warrant itself or in any incorporated document was there a list of the items to be seized during the course of the search. At the suppression hearing, Agent Taylor was questioned whether he noticed that the warrants did not state "See Attachment B" in the appropriate place or have an Attachment B. Agent Taylor testified that he did not, because during the time prior to the execution of the warrants, "we had made a... controlled purchase earlier in the day and we were... in the process of obtaining a search warrant [and] doing the affidavit as well as organizing anywhere from thirty to thirty-five officers." Tr. at 33:5--9. In other words, it was a busy time for him. Agent Taylor also testified that he relied on the U.S. Attorney's Office to prepare the face sheets, that it is his practice to rely on the U.S. Attorney's Office for this purpose, and that normally, warrants prepared by the U.S. Attorney's Office refer to "Attachment B" in the appropriate place and include an attachment B listing the items to be seized. Id. at 35:3--25.
Agent Taylor also confirmed that he was "intimately familiar" with the Fourth Amendment requirement that warrants state with particularity the items to be seized during a search. Tr. at 40:24--41:3. He acknowledged that normally Attachment B contains a description of the items to be seized and that it is attached to the warrant as a separate sheet of paper. Tr. at 43:13--17. Agent Taylor testified that, though he knew that as a practice, the application and warrant face page should have referred to and should have included an Attachment B, he "didn't take notice" of whether the Wright warrants had an Attachment B, and he "just assumed everything that was supposed to be there was there." Tr. 42: 22--25. When asked whether he checked to see that there was an Attachment B in the packet submitted to the Magistrate Judge, he stated that he did not. Tr. 43:23--44: 7.
II. Discussion of Legal Issues Raised by the Motions to Suppress
A. The Fourth Amendment, Particularity, and the Exclusionary Rule
The Fourth Amendment protects the right of individuals to be free from unreasonable searches and seizures. Search warrants must describe with particularity the place to be searched and the items to be seized. U.S. CONST. amend. IV ("The 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."). A particular description of the items police may lawfully seize as part of a search is "the touchstone of a warrant." Doe v. Groody, 361 F.3d 232, 239 (3d Cir. 2004). A written description accomplishes three things: "[f]irst, it memorializes precisely what search or seizure the issuing magistrate intended to permit. Second, it confines the discretion of the officers who are executing the warrant. Third, it "inform[s] the subject of the search what can be seized." Id. (internal citations omitted).
The exclusionary rule forbids the use at trial of evidence obtained in violation of the Fourth Amendment. This "is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). It does not proscribe the use of illegally obtained evidence in all situations. Id. Rather, whether the sanction of exclusion is imposed "is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting Illinois v. Gates, 426 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
Prior to the Supreme Court's recent decision in Herring v. United States, --U.S--, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), the accepted standard for whether the exclusionary rule applied in a given case was whether the officer performing a search had "an objectively reasonable belief that [his] conduct did not violate the Fourth Amendment." Leon, 468 U.S. at 918, 919-920 (internal citations omitted) (finding that the exclusionary rule did not apply "where the officer's conduct [in relying on a search warrant issued by a Magistrate Judge] is objectively reasonable... for it is painfully apparent that... the officer is acting as a reasonable officer would and should act in similar circumstances."). Despite this focus on the importance of objective reasonableness, the exception is termed the "good faith exception" to the exclusionary rule.*fn2 See e.g., Leon, 468 U.S. at 919 n.20 ("Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers.... The objective standard we adopt... requires officers to have a reasonable knowledge of what the law prohibits); Illinois v. Krull, 480 U.S. 340, 349, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (finding that the good-faith exception applies where an officer relied on a statute that was later invalidated and observing that "[t]he application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer's actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant.").
In Herring, the Supreme Court used both narrow and broad language in describing the scope of the good faith exception. It ultimately affirmed the Eleventh Circuit's decision not to exclude evidence obtained pursuant to a recalled search warrant that was mistakenly present in a computer database as active. Herring, 129 S.Ct. at 698. The Court held that exclusion was not appropriate where the police error "was the result of isolated negligence attenuated from the arrest." Id. Rather, the Court found that exclusion is only proper in situations where the police conduct at issue is "deliberate, reckless, or grossly negligent" or where exclusion will deter "recurring or systemic negligence." Id. at 700, 701-02. It does not apply in these situations because the deterrent benefits of the rule do not outweigh the substantial costs of exclusion. Id. at 700, 702; see also United States v. Tracey, 597 F.3d 140, 151 (3d Cir. 2010). Deterrence will be achieved, the Court reasoned, "only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Herring, 129 S.Ct. at 701-02.
The good faith exception to the exclusionary rule will not apply in certain limited circumstances. As set forth in Leon, and as adopted and recently affirmed by the Third Circuit, it will not apply in four distinct situations:
1) where the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit;
2) where the magistrate judge abandoned his or her judicial role and failed too perform his or her ...