The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge:
Before : WALKER and LIVINGSTON, Circuit Judges, and KAPLAN, District Judge.*fn1
Defendant-Appellant Efrain J. Rosa appeals from a
of the United States District Court for the Northern District
New York (Norman A. Mordue, Chief Judge) convicting him
25 producing child pornography and of witness tampering,
26 sentencing him to 120 years' imprisonment. Rosa challenges
27 district court's denial of his motion to suppress
28 evidence seized from his apartment, arguing that
29 violated the Fourth Amendment by executing an overbroad
30 warrant that was so plainly defective that the good
exception to the exclusionary rule does not apply. While
we agree with Rosa that the search warrant fails for lack
3 particularity and, in light of Groh v. Ramirez, 540 U.S.
4 (2004), cannot be cured by reference to
5 unattached supporting documents, we conclude that the
6 court correctly refused to exclude the resulting evidence,
7 therefore AFFIRM.
Defendant-Appellant Efrain J. Rosa appeals from the February 12, 2009 judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge) convicting him, upon a conditional guilty plea, of three counts of producing child pornography and one count of witness 31 tampering. Prior to his guilty plea, Rosa moved to suppress 32 physical evidence seized from his home on the basis that it was 33 taken pursuant to an overbroad search warrant that failed to 1 state how electronic items to be seized were connected to any 2 suspected criminal activity or, more specifically, child 3 pornography. While we agree with Rosa that the Supreme Court's 4 decision in Groh v. Ramirez, 540 U.S. 551 (2004), has abrogated 5 United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993), to 6 disallow consideration of unattached and unincorporated 7 supporting documents to cure an otherwise defective search 8 warrant, and that the warrant in this case is thus 9 constitutionally invalid, we conclude that the district court 10 correctly refused to exclude the resulting evidence. We 11 therefore AFFIRM the district court's denial of Rosa's motion to 12 suppress.
Late on September 26, 2007, the Oswego County, New York, 16 Sheriff's Office began investigating possible child exploitation 17 by Efrain J. Rosa after Deputy Sheriff John Burke was dispatched 18 to a local address upon receipt of a 911 call from two mothers 19 reporting that their minor sons had just disclosed being sexually 20 abused by a neighbor, whom the boys referred to only as "J." 21 Upon speaking with the two women and interviewing each of the 22 boys, Deputy Sheriff Burke learned that "J" had shown the boys 23 files on his computer containing nude pictures of the boys and 24 other children and that "J" had engaged in sexual conduct with 1 the boys. The boys further stated that "J" kept three laptop 2 computers in his apartment, had a USB flash drive on which he 3 kept images of nude children that included images of the two 4 boys, had a pistol in his bedside table, and had sexually abused 5 each of the boys on multiple occasions over a period of two 6 months. In the course of the investigation, at approximately 7 2:00 a.m., the responding officers sought the assistance of 8 Oswego County Investigator Bryan Blake, who had specialized 9 training in performing computer forensic exams in child 10 pornography cases. Based on the information provided to him by 11 Deputy Sheriff Burke and another officer, the sworn statements of 12 the two boys and one of the mothers, and his own specialized 13 computer training, Investigator Blake prepared a search warrant 14 application and affidavit, which he then presented to Granby Town 15 Justice Bruce Wells in connection with his request for a search 16 warrant of Rosa's apartment.
On September 27, 2007, at 4:10 a.m., Judge Wells issued a 18 search warrant directing the Oswego County Sheriff's Office to 19 search 20 [t]he entire residence known as 30 West 11th Street 21 Building E Apartment 1 Chateau West Apartments in the 22 Town of Granby, County of Oswego, State of New York.
This is to include any containers or rooms whether 24 locked or otherwise[ ] 25 26 for the following property: 27 The property sought to be seized and searched is 28 described as computer equipment, electronic digital 1 storage media included but not limited to floppy 2 diskettes, compact disc, hard drives whether mounted in 3 a computer or otherwise, video or audio tapes, video 4 surveillance systems, video and digital camera systems, 5 printing devices, monitors, firearms and any written 6 and/or printed and/or electronic stored notes or 7 records which would tend to identify criminal conduct 8 and any personal papers or documents which tend to 9 identify the owner, leasee or whomever has custody or 10 control over the premises searched or the items seized.
While the search warrant itself did not incorporate any 13 supporting documents, or set forth the nature of the suspected 14 criminal activity, section A of the search warrant application 15 stated that the property to be searched was evidence of three New 16 York criminal offenses-two sex offenses, one of which related to 17 crimes involving child pornography, and one firearms offense.*fn2 18 Sections B and C of the search warrant application then described 19 the location to be searched and the items to be searched and/or 20 seized identically to the descriptions used in the search 21 warrant. Finally, the search warrant application requested that 22 "the court issue a search warrant directing the search as set 23 forth in section C of this application for property described and 24 set forth in sections A and B of this application and the seizure 25 thereof." Investigator Blake swore to the information in the 26 search warrant application before Judge Wells, and the 27 application bore each man's signature.
The materials presented to Judge Wells also included an 2 affidavit by Investigator Blake that (a) incorporated the 3 statements made by each of the boys and one of the two women, (b) 4 explained Investigator Blake's forensics training and the 5 characteristics common to individuals engaged in the production 6 of child pornography and in child molestation, and (c) set forth 7 Rosa's New York criminal history and lack of a pistol permit.
The affidavit also stated the following as to the items specified 9 for seizure: All of the materials requested for seizure will 11 identify children who are being sexually exploited 12 through child molestation and child pornography. The 13 materials will also identify other adults who are 14 engaging in the sexual exploitation of children by 15 these means. In addition, these materials will 16 demonstrate the sexual proclivity, inclination, 17 preference, and activities of the person under 18 investigation providing evidence that will tend to show 19 that the person under investigation has committed 20 felonies.
After issuance of the search warrant, Investigator Blake convened 23 a team of officers, proceeded to Rosa's apartment, and, at 24 approximately 5:00 a.m., executed the warrant. During the 25 search, officers seized numerous items, including, inter alia, 26 six computers, multiple USB thumb drives, USB cables, a Sony 27 Playstation, two digital cameras, multiple external hard drives, 28 a cassette recorder, two USB cameras, numerous compact discs, a 29 pair of handcuffs, condoms, three marijuana pipes, a handgun, 30 ammunition, and over seventy grams of marijuana. Investigator 1 Blake personally participated in the ...