Recent Third Circuit Expansion of Exclusionary Rule

Federal Criminal Defense Attorney Hope Lefeber Discusses Recent Third Circuit Expansion of Exclusionary Rule

The Third Circuit, in U.S. v. Wright, 2015 WL 507169 (3d Cir. Feb. 2015) that DEA Agents’ inadvertent failure to include list of items to be searched in warrant, did not violate the Fourth Amendment. Attorney Lefeber discusses the case.

Philadelphia, Pennsylvania February 25, 2015

In its recent decision in U.S. v. Michael Wright, 2015 WL 507169 (3d Cir., Feb. 2015), the Third Circuit extended its recent holding in U.S. v. Franz, 772 F. 3d. 134 (3d Cir. 2014), thereby further diluting the protection of the Fourth Amendment, says federal criminal defense attorney Ms. Hope Lefeber.

According to court documents, as part of their investigation, DEA agents obtained a search warrant, signed by a magistrate judge, for Defendant Michael Wright’s apartment.

An affidavit—summarizing the Government’s knowledge of the conspiracy and containing a list of items the DEA expected to find—was also attached and signed.

Subsequently, the Government sealed the affidavit (to preserve details relating to an ongoing investigation). When the DEA executed the search, they were unable to provide Defendant with a list of items to be seized, in violation of the Fourth Amendment.

Ms. Lefeber explains that the lower court initially suppressed the search, ruling that the good-faith exception to the exclusionary rule could not excuse a facially invalid warrant under U.S. v. Leon, 468 U.S. 897 (1984).

The Third Circuit vacated the lower court’s decision and remanded based on Herring v. U.S., 555 U.S. 135 (2009).

On remand, the District Court denied the motion to suppress, concluding that the DEA’s mistake was “simple” and did not benefit the Government.

Accordingly, Defendant was convicted of conspiracy to distribute marijuana.

Defendant Wright appealed his conviction, arguing that denying his motion to suppress reduced the Government’s incentive to carefully scrutinize the contents of each warrant before execution.

The Third Circuit disagreed and noted that the DEA agent’s negligence fell below the “grossly negligent” exception to the good-faith rule, articulated in Herring.

Similar to its recent ruling in Franz—where an officer mistakenly read a sealing order—the DEA’s conduct was held not to be grossly negligent, since the omission of the list was inadvertent, observes Ms. Lefeber.

Therefore, though the search violated the Fourth Amendment, the officers could rely on the good-faith exception to the exclusionary rule because “deterring isolated negligence is not with the social cost of excluded evidence.

Ms. Lefeber believes that this case further erodes the protections of the Fourth Amendment and renders meaningless the requirements to specify the items to be seized. Officers can now "search and seek" and later legitimize the search by listing the items later.

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