In a prosecution of defendant for child pornography the Third Circuit in US v. Tracey, No. 08-3290, faced a government's challenge to the district court's grant of motion to suppress evidence seized and statement made during a search conducted pursuant to a warrant.
First, the court rejected the government's argument that the warrant's lack of particularity is cured by the affidavit as the warrant did not explicitly incorporate the affidavit of probable cause into the description of things to be searched and seized.
The court also rejected the government's claim as waived, that it had good cause for its failure to argue before the district court that the warrant's lack of particularity could be cured when the affidavit was attached to the warrant and the actual search was limited to the terms of the narrower affidavit.
However, the court ultimately reversed the decision in holding that the officers had good reason to believe in the warrant's validity, and therefore, the exclusionary rule is not justified.