The law is tested by bad cases and worse defendants, and Efrain Rosa was both.  Having sexually molested two boys and shown them images of others on his computer, Rosa was someone who needed to be stopped.  From the Second Circuit decision :

Based on the information provided to him by Deputy Sheriff Burke and another officer, the sworn statements of the two boys and one of the mothers, and his own specialized computer training, Investigator Blake prepared a search warrant application and affidavit, which he then presented to Granby Town Justice Bruce Wells in connection with his request for a search warrant of Rosa’s apartment.

The warrant was executed and evidence seized.  The warrant was sloppy and bad, covering pretty much everything under the sun.  Rosa moved to suppress and lost.  On appeal, the court held:

Rosa challenges the district court’s denial of his motion to suppress physical evidence seized from his apartment, arguing that officers violated the Fourth Amendment by executing an overbroad search warrant that was so plainly defective that the good faith exception to the exclusionary rule does not apply. While we agree with Rosa that the search warrant fails for lack of particularity and, in light of Groh v. Ramirez, 540 U.S. 551 (2004), cannot be cured by reference to unincorporated, unattached supporting documents, we conclude that the district court correctly refused to exclude the resulting evidence, and therefore AFFIRM.

Talk about a non-sequitur.  After reciting all the usual background caselaw, the court makes a sharp right and goes down a rather extraordinary path.

A violation of the Fourth Amendment does not necessarily result in the application of the exclusionary rule, however. “Indeed, exclusion has always been our last resort, not our first impulse.” Herring v. United States, 129 S. Ct. 695, 700 (2009) (internal quotation marks omitted).

Application of the exclusionary rule depends on the “efficacy of the rule in deterring Fourth Amendment violations in the future” as well as a determination that “the benefits of deterrence… outweigh the costs.” Id.

Herring?  Herring?  Herring?  You’ll recall that Herring  was the awful decision “forgiving” the police negligence in failing to remove a vacated warrant from a database, and another officer using that warrant as the basis for a search and seizure before the mistake was discovered.  Oops.

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

Following the Herring decision, Kurt Scheidegger suggested that some wag judges would read it to incorporate a new element into suppression, not merely showing that the 4th Amendment was violated “but also that there was no “deliberate, reckless, or grossly negligent conduct.”  His dream was my nightmare.

At first blush, the answer of course is “nah, that’s not what it said.”  Kent ignores the attenuation language.  Kent hates the exclusionary rule, preferring instead a right without a remedy because it’s good for his political agenda. 

But he has a point, much as I hate to admit it.  Roberts’ language for the majority does suggest that the remedy, the only remedy, is contingent on proof that the violation was due to “deliberate, reckless or grossly negligent conduct.”  It says it right there in the opinion.  It’s not like he made this up.  Must this be proven?

The answer, from my reading of Herring, was that this view ignored the critical distinction of Herring, also in the language of the majority opinion, that the mistake must be “attenuated” from the violation.  In Herring, the mistake was the failure to remove the vacated warrant from the database in another county by other police personnel.

In Rosa, the mistake was in preparing a facially overbroad warrant, in which no police officer could in good faith rely due to its obvious overbreadth.  To overcome this, the court indulges in some curious slight of hand:

In this case, a reasonably well trained officer is not chargeable with knowledge that this search was illegal in the particular circumstances before us. While we may no longer rely on unincorporated, unattached supporting documents to cure a constitutionally defective warrant, those documents are still relevant to our determination of whether the officers acted in good faith, because they contribute to our assessment of the officers’ conduct in a particular case.

So while the court is precluded from relying on “unincorporated, unattached supporting documents to cure a constitutionally defective warrant,” the police are not for purposes of the court deciding whether they were acting in good faith.  So much for Groh v. Ramirez.  The court may be legally precluded from holding good faith, but that doesn’t stop them from  finding it somewhere else on the exact same basis.

Yet the primary distinguishing factor of Herring, that the mistake was so attenuated from the search that imposition of the remedy of suppression would serve no purpose, was completely ignored.  Remember the rubric and forget the rationale. 

Upon examining the circumstances of the case, we conclude that the officers acted reasonably and that the exclusionary rule would serve little deterrent purpose in this case. Given the time pressures and the content of the application and the affidavit, it is only reasonable to conclude that the failure to ensure that the items to be seized were properly limited under the express terms of the warrant was simply an inadvertent error that was the product of “isolated negligence.” Herring, 129 S. Ct. at 698.

Moreover, the Court has made clear since Leon that while the objective inquiries underlying the good faith exception and qualified immunity are the same, see Groh, 540 U.S. at 565 n.8, application of the exclusionary rule requires the additional determination that the officers’ conduct was “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” Herring, 129 S. Ct. at 702. Because there is no evidence that Investigator Blake and his team of officers actually relied on the defective warrant, as opposed to their knowledge of the investigation and the contemplated limits of the town justice’s authorization, in executing the search, the requisite levels of deliberateness and culpability justifying suppression are lacking.

(Emphasis added.)  Whether this wholesale adoption of Scheidegger’s dream scenario reflects the Second Circuit’s approach toward suppression in all instances, or only where a defendant is as despicable as Rosa, remains to be seen,   For the moment, however, it appears that the court has concluded that a conceded violation of the 4th Amendment need not result in a remedy absent the subjective “requisite levels of deliberateness and culpability” by the police.

Under the facts of this case, we conclude that the benefits of deterrence do not outweigh the costs. In so holding, however, we reiterate the importance of law enforcement’s compliance with the probable cause and particularity requirements of the Fourth Amendment and emphasize that application of the exclusionary rule will vary in accordance with the facts of each case.

So it’s not that the 4th Amendment isn’t a nice right any longer, but that its violation only results in a remedy if done by a bad cop.  And there’s no telling what, if any, violation will be tolerated until after the court decides.  Now there’s deterrence for you.