There are several recurring instances in the practice of criminal law where the use of particular terminology in the right circumstance makes the difference between an action which is unconstitutional or improper and one which is not, e.g., effectively invoking the right to counsel under the Fifth Amendment; saving an indictment from a fatal flaw by using the disjunctive or conjunctive to connect its means and methods; saving a co-conspirator statement under Bruton and the Sixth Amendment through the application of the correct pronoun. It seems sometimes that medieval scholastics are not as far removed from present-day lawyers as the intervening centuries would suggest.

The Third Circuit recently added to the Fourth Amendment analysis which attaches dispositive significance to mundane terms. In United States v. Tracey, 2010 WL 681364 (3d Cir., Mar. 1, 2010), a Pennsylvania police officer had drawn up a detailed search warrant affidavit in a child pornography investigation. His seven-page affidavit -- which detailed the offense under investigation, the location to be searched, and the items which might be located there, was physically attached to the warrant application and warrant form itself -- was signed on each page by the officer who signed the application, and was referenced in various places on the warrant application. However, the warrant only generally described the items to be seized, in contrast to the greater, and sufficient, level of detail in the attachment. The district court suppressed the search in question, finding that the warrant was not particularized, or was too “general,” under the Fourth Amendment and therefore inadequate.

The Third Circuit agreed that the warrant was defectively “general,” a point the government conceded, and held that the more-detailed affidavit was not sufficiently incorporated into it. While incorporation would have cured the warrant’s defect, the warrant application failed to use words such as “attached affidavit which is incorporated herein,” “see attached affidavit,” or “described in the affidavit.” The application thus failed to “contain explicit words of incorporation.” But in a small nod to substance over linguistic precision, the Court did hold that the Leon good faith exception applied to save the search for the government, because the attached affidavit was in sufficient proximity to the search warrant to support the objective good faith of the officers in conducting their search.

So, words do and always will matter under the Fourth Amendment, and Tracey provides counsel with yet another, technical basis on which to attack an improper search.