Deficient Seach Warrant in Child Porn Case "Saved" by Good Faith Exception

United States v. Tracey, No. 08-3290, 2010 WL 681364 (3d Cir. Mar. 1, 2010). The Third Circuit reversed the district court’s suppression order in a child pornography case and held that although the search warrant was deficient because it did not clearly indicate that the items-to-be-seized, the good faith exception applied because the "officer could understandably believe that he had met the requirements of the Fourth Amendment."

The defendant, Tracey, was the subject of a state investigation into the internet distribution of a certain video containing child pornography. Tracey’s IP address was identified as participating in the distribution of the video via a peer-to-peer sharing program. Based on that information, the local police obtained a search warrant for Tracey’s residence from a state magistrate. The warrant identified the items to be searched and seized as follows: "Any items, images, or visual depictions representing the possible exploitation of children including video tapes or photographs… COMPUTERS: Computer input and output devices to include but not limited to keyboards, mice, scanners, printers, monitors, network communication devices, modems and external or connected devices used for accessing computer storage media." A seven-page affidavit of probable cause was attached to the application for the warrant which described more specifically the items subject to the search. The Government conceded that the description of the items to be searched for and seized lacked the particularity required by the Fourth Amendment unless the affidavit of probable cause was incorporated. The Third Circuit found that the affidavit had not been incorporated because the application and the warrant did not contain any explicit words of incorporation and the description of the items to be searched for and seized did not incorporate the affidavit.

The Court of Appeals further held that while the warrant was constitutionally deficient because it lacked particularity, the exclusionary rule should not have been applied because the police acted in good faith in relying on the warrant because they could have reasonable believed that the warrant incorporated the narrower affidavit.