Baranski v. Fifteen Unknown Agents of BATF - Opposition

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No. 06-612

In the Supreme Court of the United States

KEITH B. BARANSKI, PETITIONER

v.

FIFTEEN UNKNOWN AGENTS
OF THE BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
BARBARA L. HERWIG
HOWARD S. SCHER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether federal agents are subject to suit under the Fourth Amendment and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), when they conducted a warrant search in accor dance with a description of the items to be seized that was included in an affidavit reviewed by the magistrate and expressly incorporated in the warrant, but the affi davit did not accompany the warrant at the time of the search.

In the Supreme Court of the United States

No. 06-612

KEITH B. BARANSKI, PETITIONER

v.

FIFTEEN UNKNOWN AGENTS
OF THE BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet. App. 1a-62a) is reported at 452 F.3d 433. The panel opinion of the court of appeals is reported at 401 F.3d 419. The memorandum opinion of the district court granting re spondents' motion to dismiss (Pet. Supp. App. 1a-10a) is reported at 252 F. Supp. 2d 401.

JURISDICTION

The judgment of the court of appeals was entered on July 3, 2006. The petition for a writ of certiorari was filed on September 29, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

As is relevant here, petitioner brought suit in the United States District Court for the Western District of Kentucky against the federal respondents, six named and fifteen unnamed agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the agents violated his Fourth Amendment rights by seizing his guns and other items. The district court granted the federal respondents' motion to dismiss on grounds of qualified immunity. Pet. Supp. App. 1a-10a. A panel of the court of appeals initially reversed in relevant part. 401 F.3d 419 (6th Cir. 2005). After granting rehearing en banc, the court of appeals affirmed. Pet. App. 1a-62a.

1. Petitioner was a licensed firearms dealer who imported guns from Eastern European countries. Peti tioner stored the guns in a customs warehouse in Louis ville, Kentucky, until he could sell them to eligible law enforcement agencies. ATF agents discovered that peti tioner was using forged letters from a law enforcement official in order to sell the guns to other parties. On April 20, 2001, after a six-month investigation, ATF Agent Michael Johnson applied to a magistrate for a warrant to search the Louisville warehouse. In the loca tion on the warrant form for describing the items to be seized, the warrant form stated, "See Attached Affida vit." An attached affidavit listed the items to be seized: viz., "about 425" guns owned by petitioner and stored at the warehouse. The magistrate issued the warrant, signing both the draft warrant and the affidavit, but ordered the affidavit to be sealed in order to protect ATF's confidential sources. Pet. App. 3a-4a.

The following day, Agent Johnson and approximately 20 other ATF agents executed the warrant. Upon reaching the warehouse, the agents were met by the warehouse's manager, who asked to see the warrant. After reading the warrant, the manager asked to see the affidavit. The agents informed the manager that the affidavit was under seal, but told him that they were looking for guns owned by petitioner and stored at the warehouse. The manager (who was also an attorney) insisted that the warrant was defective because it did not describe the items to be seized, but permitted the agents into the warehouse (and directed the agents to the area in which petitioner's guns were stored). The agents seized 372 machine guns and 12 crates containing gun accessories. Upon leaving the warehouse, the agents gave the manager a copy of the search warrant and an inventory of the seized items. Pet. App. 4a-5a.

2. As is relevant here, petitioner brought a Bivens action in the Western District of Kentucky against the federal respondents, alleging that they violated his Fourth Amendment rights because the affidavit listing the items to be seized did not accompany the warrant at the time of the search. Pet. App. 5a. The district court denied petitioner's motion to unseal the affidavit and stayed the action pending the completion of criminal proceedings against petitioner. Ibid. Petitioner was subsequently convicted in the Eastern District of Mis souri of conspiring to import machine guns by making knowingly false entries on applications and other re cords, in violation of 26 U.S.C. 5861(l), and sentenced to 60 months of imprisonment. Pet. App. 5a-6a. The Eighth Circuit affirmed, 75 Fed. Appx. 566 (2003), and this Court denied certiorari, 541 U.S. 1011 (2004). Both lower courts held that the seized items should not be suppressed; the Eighth Circuit reasoned that "[t]he war rant should not have been suppressed for lack of particu larity" because "the warrant referred to a sealed affida vit that described the weapons." 75 Fed. Appx. at 568.

3. After petitioner was convicted in the criminal pro ceedings, the district court unsealed the affidavit and lifted the stay. The federal respondents then moved to dismiss petitioner's Fourth Amendment claim on grounds of qualified immunity. The district court granted the motion to dismiss. Pet. Supp. App. 1a-10a. The court reasoned that "it appears as though no Fourth Amendment violation occurred," id. at 6a, and that, even if it had, the agents were entitled to qualified immunity on the ground that the Sixth Circuit's case law on the issue was "certainly far from clear." Ibid.1

4. A panel of the court of appeals initially reversed in relevant part. 401 F.3d 419 (2005). After granting rehearing en banc, however, the court of appeals af firmed. Pet. App. 1a-62a.

a. The en banc court of appeals first held that the ATF agents' conduct did not violate the Fourth Amend ment. Pet. App. 7a-26a. At the outset, the court rea soned that the warrant complied with the Warrant Clause, despite the fact that the warrant itself did not describe with particularity the things to be seized, be cause it expressly incorporated an affidavit that did de scribe them. Id. at 9a-10a. The court explained that this case was therefore distinguishable from Groh v. Ramirez, 540 U.S. 551 (2004), because, in this case, "[the] warrant explicitly incorporated the supporting affidavit; the magistrate signed the affidavit and war rant; and the affidavit described with particularity the items to be seized." Pet. App. 11a. Accordingly, "this warrant made it clear that the magistrate understood and cabined the scope of the search he was authorizing." Ibid. The court noted that, by its terms, the require ments of the Warrant Clause need only be satisfied upon "issu[ance]" of the warrant. Id. at 13a. "Consistent with the language of the Warrant Clause and the historical purposes behind it," the court continued, "a search con ducted in accordance with a valid warrant does not be come warrantless, and therefore 'presumptively unrea sonable,' due to the manner in which the officers con ducted the search." Id. at 14a.

The court of appeals considered, and rejected, peti tioner's contention that this Court's decision in Groh "establishes an incorporate-and-produce and an incorporate-and-accompany requirement with respect to supporting affidavits," under which "the affidavit also (1) must be given to an occupant who requests it at the outset of the search, (2) must accompany the agents dur ing the search and (3) must be left at the scene of the search." Pet. App. 15a-16a.

As to the "incorporate-and-produce" argument, the court of appeals reasoned that Groh provided "scant sup port" for that argument, because "[t]he Court acknowl edged that the Fourth Amendment does not compel offi cers to present a warrant before a search." Pet. App. 16a. At most, the court of appeals explained, "the Court left open only the possibility that it would be 'unreason able' to decline such a request, not that the search would become warrantless if the agents decline such a re quest." Ibid. The court of appeals added that, in the wake of this Court's subsequent decision in United States v. Grubbs, 126 S. Ct. 1494 (2006), "the possibility that the Warrant Clause requires officers to produce a copy of the warrant (and any affidavit) at the outset of the search seems even less plausible." Pet. App. 16a. The court of appeals noted that, in any event, such a rule would not "lend itself to sensible application," because "there doubtless will be times when officers could not reasonably be expected to comply with such a require ment." Id. at 17a.

As to the "incorporate-and-accompany" argument, the court of appeals acknowledged that Groh "con tain[ed] some language in support of [that] argument." Pet. App. 17a. Insofar as Groh "refer[red] to an incor porated affidavit being 'present' at the search," how ever, the court suggested that one possible explanation was that "the reasoning of Groh (though perhaps not the result) might well have been different if the facially de fective warrant had been attached to an affidavit signed by the magistrate that clearly corrected the omission and that accompanied the warrant during the search." Id. at 18a-19a. "Another possibility," the court hypothe sized, "is that the Court was suggesting that officers generally should bring an incorporated affidavit * * * with them during the search and that the failure to do so may be a factor in determining whether the search was reasonable, two points with which we agree." Id. at 19a.

As to the "incorporate-and-leave-behind" argument, the court of appeals reasoned that, "[i]n some settings, such an unyielding requirement would make little sense." Pet. App. 19a. The court contended that Groh "never said that the failure to leave an incorporated affi davit (or authenticated summary) at the scene of the search renders the search presumptively unreasonable." Id. at 20a.

The court of appeals next concluded that the agents did not violate the Reasonableness Clause when they conducted the search without the accompanying affida vit. Pet. App. 21a-26a. At the outset, the court noted that, "[t]o satisfy the Reasonableness Clause, officers not only must obtain a valid warrant[,] but they also must conduct the search in a reasonable manner." Id. at 21a. Considering the totality of the circumstances, the court then determined that the search was reasonable. Id. at 22a. The court reasoned that, although Agent Johnson did not show the affidavit to the manager, he "proceeded to tell him orally what the warrant and affi davit authorized them to seize." Id. at 23a. The court added that "[t]here was nothing unduly complex about the object of the search that would have prevented agent Johnson from remembering precisely what he had au thority to search for and to seize." Ibid. Moreover, the court observed, "[t]he record * * * shows that once [the manager] agreed to let the agents into the ware house, the agents conducted the search in a reasonable manner." Ibid. While the court suggested that "the agents would have been wiser to bring a written sum mary of the items to be seized (presumably signed by the magistrate) or to list the items to be seized in the warrant itself," it concluded that no constitutional viola tion had occurred. Id. at 26a.

The court of appeals held in the alternative that, even if the search did violate the Fourth Amendment, the ATF agents were entitled to qualified immunity be cause the search "did not violate clearly established law." Pet. App. 26a (internal quotation marks omitted). The court noted that the Eighth Circuit had held (in peti tioner's appeal from his criminal conviction) that the agents had "acted in good faith in executing this war rant," id. at 27a; that "the prevailing law in this circuit would have led reasonable agents to believe that their conduct was legal at the time they conducted the search," ibid.; and that "other appellate courts have re jected similar claims either because they did not state a constitutional violation or because they did not defeat a * * * good-faith defense." Id. at 28a. The court of ap peals recognized that the Ninth Circuit had held that "an affidavit necessary to satisfy the particularity re quirement not only must be incorporated into the war rant but also must accompany the warrant at the scene." Id. at 30a (citing United States v. McGrew, 122 F.3d 847 (1997)). The court concluded, however, that "this dis agreement among the circuits at the time of the search * * * shows that the agents did not violate clearly es tablished law." Ibid.

Finally, the court of appeals reasoned that this Court's decision in Groh "does not alter th[at] conclu sion." Pet. App. 30a. Although the Court in Groh held that the agent in that case was not entitled to qualified immunity because the warrant at issue contained a "glaring deficiency," ibid. (quoting 540 U.S. at 564), the court of appeals reasoned that "[t]oday's facts offer a poor analogy," because, "[f]ar from invalidating incorpo rated affidavits, Groh recognized that they may satisfy the particularity requirement." Id. at 31a. According to the court of appeals, "[n]or did Groh say that it was clearly established that a warrant valid upon issuance becomes invalid upon execution if the incorporated affi davit does not accompany the search." Ibid. Instead, "[w]hether a particularized warrant at the time of issu ance may become an unparticularized warrant when a cross-referenced affidavit does not accompany the search remains a matter of continued debate among the circuits and remains an issue that neither the text of the Fourth Amendment nor Groh resolves." Ibid.

b. Judge Gilman, joined by Judge Daughtrey, con curred in the judgment. Pet. App. 32a. While he be lieved that petitioner's Fourth Amendment rights had been violated, he agreed that the agents were entitled to qualified immunity because they did not violate clearly established law. Ibid.

c. Judge Clay, joined by three other judges, dis sented. Pet. App. 33a-62a. He first concluded that the ATF agents' conduct violated the Fourth Amendment. Id. at 35a-48a. According to Judge Clay, Groh "makes it inescapably clear that a warrant cannot satisfy the particularity clause of the Fourth Amendment by refer ence to an affidavit that is not present at the scene of the search." Id. at 37a. He explained that, "[w]ithout seeing a copy of the affidavit, the individual whose property is being searched or seized has no way to know the limits of the officer's authority." Id. at 38a. Judge Clay noted that this Court had "expressly reserved the question of whether an officer's refusal to present a warrant to the individual being searched when the individual expressly requests to see the warrant is 'reasonable' within the meaning of the Fourth Amendment." Id. at 41a (citing Groh, 540 U.S. at 562 n.5). He added that "a search war rant's presence at the scene of the search does more than simply inform the individual of the officer's author ity; it also informs the officers of the limits of their au thority." Id. at 42a. Judge Clay suggested that the fed eral respondents "could have easily avoided this entire suit * * * simply by transcribing the items listed in the affidavit onto the warrant or onto a list attached to the warrant." Id. at 47a. "This Court," Judge Clay added, "would hardly be imposing any great burden on law en forcement officers by holding that [the federal respon dents'] conduct violated the Fourth Amendment." Id. at 48a.

Judge Clay also concluded that the ATF agents were not entitled to qualified immunity. Pet. App. 48a-51a. He explained that, as in Groh, the agents "violated [peti tioner's] Fourth Amendment right to be searched only pursuant to a warrant describing with particularity the items to be seized." Id. at 49a. The warrant was "defi cient on its face," in Judge Clay's view, because it "ut terly failed to describe any items that the officers in tended to seize" but instead "referred the reader to an affidavit that the executing officer intentionally had placed under seal." Ibid. He reasoned that the agents' "reliance on this Circuit's pre-Groh case law is unavail ing" because, "[i]nasmuch as the Groh search occurred in 1997, it follows that Groh applies to all searches oc curring after 1997," and "[t]he search in this case oc curred in 2001." Id. at 50a-51a.2

ARGUMENT

Petitioner contends (Pet. 7-27) that, by holding both that the ATF agents' conduct did not violate the Fourth Amendment and that, even if it did, the agents were en titled to qualified immunity, the court of appeals' deci sion conflicts with this Court's decision in Groh v. Ramirez, 540 U.S. 551 (2004). The court of appeals' de cision was correct, and further review is not warranted at this time.

1. Petitioner first contends (Pet. 7-22) that this Court should grant review to determine whether, consis tent with the Fourth Amendment, officers may conduct a warrant search in accordance with a description of the items to be seized that was included in an affidavit re viewed by the magistrate and expressly incorporated in the warrant, when the affidavit did not accompany the warrant at the time of the search. That contention lacks merit.

a. The court of appeals correctly held that, under the circumstances of this case, such a search does not violate the Fourth Amendment. The Warrant Clause of the Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV. The warrant in this case was validly "issue[d]" under the Warrant Clause because it expressly incorporated an affidavit that particularly described the items to be seized, thereby ensuring that "the magistrate understood and cabined the scope of the search he was authorizing." Pet. App. 11a.

The fact that the affidavit did not accompany the warrant after the warrant was issued did not retroac tively render the issuance of the warrant invalid for pur poses of the Warrant Clause. Nor did that fact render the search otherwise "unreasonable" under the Fourth Amendment, at least where, as here, the officers were evidently aware of the items that they had authority to search for and seize. Pet. App. 23a. Although the Fourth Amendment does not require an officer to pres ent a property owner with a copy of the search warrant before conducting a search, see United States v. Grubbs, 126 S. Ct. 1494, 1501 (2006), the agents in this case did present a copy of the warrant to the manager of the property and orally informed him of the items to be seized, thereby assuring the manager that a magistrate had passed on the existence of probable cause and en abling the manager to monitor the search. Pet. App. 22a-23a. Under those circumstances, the agents' con duct was reasonable and thus did not violate the Fourth Amendment.

b. Petitioner contends that, by upholding the consti tutionality of the agents' conduct, the court of appeals' decision conflicts with this Court's decision in Groh. As petitioner concedes (Pet. 15), however, "the specific problem in Groh was not present in the case at bar." In Groh, the warrant at issue erroneously listed the place to be searched as the items to be seized. 540 U.S. at 554. Although the warrant application did list with particu larity the items to be seized, the warrant itself in Groh-unlike the warrant in this case-did not ex pressly incorporate that document. Id. at 554-555. The Court held that the warrant was "plainly invalid." Id. at 557. The Court reasoned that the warrant "failed alto gether" the Warrant Clause's requirement that it de scribe with particularity the things to be seized, and explained that "[t]he fact that the application ade quately described the 'things to be seized' does not save the warrant from its facial invalidity." Ibid.

As petitioner notes (Pet. 9), the Court in Groh did assert that "most Courts of Appeals have held that a court may construe a warrant with reference to a sup porting application or affidavit if the warrant uses ap propriate words of incorporation, and if the supporting document accompanies the warrant." 540 U.S. at 557- 558 (emphasis added) (citing decisions from the First, Sixth, Eighth, Ninth, Tenth, and District of Columbia Circuits). Petitioner contends that, by citing those cases, the Court "tacitly" or "apparent[ly]" held that they were correct. See, e.g., Pet. 11, 12, 14, 15. Immedi ately after citing those cases, however, the Court noted that "in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) ac company the warrant." 540 U.S. at 558. For that rea son, the Court concluded, "we need not further explore the matter of incorporation." Ibid.; see id. at 557 (not ing that "[w]e do not say that the Fourth Amendment prohibits a warrant from cross-referencing other docu ments"). The Court therefore did not hold that those cases were correctly decided and, more to the point, did not decide the precise question presented by this case. As a result, the decision of the court of appeals in this case does not conflict with this Court's decision in Groh.

c. Petitioner does not contend that the Court should grant review on the ground that the court of appeals' decision in this case conflicts with the court of appeals decisions cited in Groh. To the extent that he did, how ever, such a contention would lack merit. As a prelimi nary matter, of the six courts of appeals whose decisions were cited in Groh, only two (the Ninth and Tenth Cir cuits) had unconditionally held that an affidavit may cure an otherwise deficient warrant only when the war rant specifically incorporates the affidavit and the affi davit accompanies the warrant during the search. See United States v. McGrew, 122 F.3d 847, 849-850 (9th Cir. 1997); United States v. Williamson, 1 F.3d 1134, 1136 n.1 (10th Cir. 1993). The remaining four courts of appeals had held (in decisions other than those cited in Groh) that an affidavit may cure an otherwise deficient warrant either if the warrant simply incorporates the affidavit (and the executing officers were aware of the relevant contents of the affidavit), see United States v. Dale, 991 F.2d 819, 846-848 (D.C. Cir.), cert. denied, 510 U.S. 906 and 1030 (1993); United States v. Bonner, 808 F.2d 864, 866-867 (1st Cir. 1986), cert. denied, 481 U.S. 1006 (1987), or, at most, if the warrant incorporates the affidavit and the affidavit is "present" at the scene when the search is conducted (even if it does not physically "accompany" the copy of the warrant possessed by the executing officers), see United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993); United States v. Gahagan, 865 F.2d 1490, 1497-1499 (6th Cir.), cert. denied, 492 U.S. 918 (1989).3

To be sure, the court of appeals' decision in this case appears to conflict with the pre-Groh decisions of at least the Ninth and Tenth Circuits as to whether an in corporated affidavit must accompany the warrant at the time of the search. That apparent conflict, however, does not warrant the Court's review at this time because it is unclear whether the courts of appeals that have re quired accompaniment as well as incorporation will con tinue to apply the same rule in the wake of the Court's decisions in Groh and Grubbs. Those decisions indicate, first, that the validity of a warrant for purposes of the Warrant Clause is evaluated at the time of the warrant's issuance, see Groh, 540 U.S. at 557, and second, that the Fourth Amendment does not require an officer to pres ent a property owner with a copy of the search warrant before conducting a search, see Grubbs, 126 S. Ct. at 1501. Like the court of appeals in this case, the only other court of appeals to have addressed the issue after Groh and Grubbs has relied on those cases in rejecting the proposition that the Fourth Amendment requires that "an executing officer possess or exhibit the affidavit or any other document incorporated into the warrant at the time of the search in order for the warrant to be valid." United States v. Hurwitz, 459 F.3d 463, 472 (4th Cir. 2006). Because the courts of appeals that have re quired accompaniment may decide to reconsider that requirement in light of Groh and Grubbs, it would be premature to grant certiorari on the issue now.

2. Even if the ATF agents' conduct violated the Fourth Amendment, they were entitled to qualified im munity. Petitioner contends (Pet. 22-27) that the court of appeals erred by holding that, in light of clearly es tablished law, the agents' conduct was reasonable. That contention lacks merit and also does not warrant further review.

a. The court of appeals correctly held that the ATF agents were entitled to qualified immunity. In deter mining whether an officer is entitled to qualified immu nity, a court is required to judge the reasonableness of the officer's conduct "against the backdrop of the law at the time of the conduct." Brousseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). At the time of the search in this case (April 21, 2001), the Sixth Circuit had held that an affidavit may cure an otherwise deficient warrant if the warrant incorporates the affidavit and the affidavit is "present" at the scene at the time of the search, see Gahagan, 865 F.2d at 1497-1499, and had further suggested that the warrant need only incorpo rate the affidavit, see, e.g., Frisby v. United States, 79 F.3d 29, 32 (6th Cir. 1996); United States v. Brown, 49 F.3d 1162, 1169 (6th Cir.), cert. denied, 516 U.S. 942 (1995); cf. United States v. Pritchett, 40 Fed. Appx. 901, 907 (6th Cir.) (rejecting challenge to a warrant incorpo rating an affidavit that was under seal, in decision post dating conduct at issue here), cert. denied, 537 U.S. 1023 (2002). In addition, as noted above, other courts of ap peals had unambiguously held that mere incorporation was sufficient. See, e.g., United States v. Jones, 54 F.3d 1285, 1292 (7th Cir.), cert. denied, 516 U.S. 902 (1995); Dale, 991 F.2d at 846-848; Bonner, 808 F.2d at 866-867. The fact that courts had reached different conclusions in other cases does not deprive the agents of qualified immunity. As this Court has explained, "[i]f judges * * * disagree on a constitutional question, it is unfair to subject police to money damages for picking the los ing side of the controversy." Wilson v. Layne, 526 U.S. 603, 618 (1999).4

b. Petitioner contends that the court of appeals' de cision conflicts with the Court's decision in Groh in this respect as well. Unlike the dissenting opinion below (Pet. App. 50a-51a), petitioner does not directly contend that Groh constitutes "clearly established law" for pur poses of the qualified-immunity analysis-nor could he, because Groh was decided after the conduct at issue. See, e.g., Brousseau, 543 U.S. at 200 n.4. Instead, peti tioner contends only that the conduct at issue was anal ogous to the conduct in Groh, as to which, the Court held, the agent involved lacked qualified immunity. See 540 U.S. at 563-565. In Groh, however, the Court re peatedly made clear that the warrant at issue contained a "glaring deficiency," and that the ensuing search was therefore plainly unconstitutional, because the warrant erroneously listed the place to be searched as the items to be seized. Id. at 564; see, e.g., id. at 557 (describing warrant as "plainly invalid").

In this case, by contrast, the warrant contained no such "glaring deficiency," because it expressly incorpo rated an affidavit listing with particularity the items to be seized-and, as the various decisions preceding the agents' conduct amply demonstrate, the ensuing search was far from plainly invalid. Groh therefore does not compel the conclusion, or even suggest, that the agents' conduct was unreasonable in light of clearly established law. Nor does the court of appeals' holding that the agents were entitled to qualified immunity present any question that independently warrants this Court's re view.5

3. Finally, even if the agents were not entitled to qualified immunity on petitioner's Fourth Amendment claim, the court of appeals' decision could be affirmed on the alternative ground that petitioner's Bivens action constituted a collateral attack on his criminal conviction and was therefore barred by Heck v. Humphrey, 512 U.S. 477 (1994). Even the dissenting opinion below rec ognized that, at a minimum, Heck foreclosed a substan tial portion of petitioner's action. See Pet. App. 51a-62a. The availability of that alternative ground for affir mance provides an additional reason to deny review on the questions presented.6

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
BARBARA L. HERWIG
HOWARD S. SCHER
Attorneys

FEBRUARY 2007

1 The district court held in the alternative that petitioner's Bivens action "amount[ed] to a collateral attack on [petitioner's] conviction and the various court rulings which led to it" and was therefore barred under Heck v. Humphrey, 512 U.S. 477 (1994). Pet. App. 10a.

2 Judge Clay would have held that petitioner's Bivens action was barred under Heck, except insofar as it sought compensatory damages for his injured reputation and mental anguish (and punitive damages). Pet. App. 51a-62a.

3 Although the district court disposed of this case on a motion to dismiss (and there was therefore no factual development beyond the allegations in the complaint), the government represented to the lower courts that a copy of the affidavit was in fact present at the scene (and thus available to agents) at the time of the search. See, e.g., Federal Resps. C.A. Reh'g Br. 17-18 n.7.

4 In addition, numerous courts of appeals (including the Sixth Circuit in an earlier case) had held that, where a search was invalid because an affidavit did not accompany the warrant or was otherwise not present at the time of the search, the fruits of the search nevertheless should not be suppressed because the officers were acting in good faith. See, e.g., United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991), cert. denied, 502 U.S. 1035 (1992); United States v. Maxwell, 920 F.2d 1028, 1034 (D.C. Cir. 1990); United States v. Curry, 911 F.2d 72, 77-78 (8th Cir. 1990), cert. denied, 498 U.S. 1094 (1991). Indeed, in petitioner's appeal from his criminal conviction, the Eighth Circuit seemingly reached the same result. 75 Fed. Appx. 566, 568 (2003). As this Court has explained, "the same standard of objective reasonableness that we appl[y] [under the good-faith exception] defines the qualified immunity accorded an officer." Malley v. Briggs, 475 U.S. 335, 344 (1986).

5 In the event that the Court grants review on the constitutional issue, it should also grant review on the issue whether the law was clearly established at the time of the alleged violation, consistent with the Court's usual practice in Bivens cases and cases under 42 U.S.C. 1983. See, e.g., Wilkie v. Robbins, cert. granted, No. 06-219 (Dec. 1, 2006); Scott v. Harris, cert. granted, No. 05-1631 (Oct. 27, 2006); Devenpeck v. Alford, 543 U.S. 146 (2001); Groh, supra; Wilson, supra.

6 Notably, after the Eighth Circuit affirmed petitioner's criminal conviction, petitioner filed a petition for a writ of certiorari in this Court, in which he contended that, insofar as the Eighth Circuit's upheld the district court's denial of his suppression motion, it "directly conflict[ed]" with the Court's decision in Groh. Pet. at 9, Baranski v. United States, No. 03-1351. The Court denied the petition. See 541 U.S. 1011 (2004).