United States v. SDI Future Health, Inc.

ORDER MENDING OPINION AND AMENDED OPINION

ORDER

I

The opinion filed in this case on January 27, 2009, 553 F.3d 1246, is amended as follows. At page 933 of the slip opinion, 553 F.3d at 1250, add the following counsel to the counsel list:

<Albert Giang, Caldwell, Leslie & Proctor, P.C., Los Angeles, California, filed a brief on behalf of amicus curiae the American Civil Liberties Union of Nevada in support of defendants-appellees’ petition for rehearing en banc. Andrew Esbenshade and Arwen Johnson, Caldwell, Leslie & Proctor, Los Angeles, California; and Allen Lichtenstein, American Civil Liberties Union of Nevada, Las Vegas, Nevada, were also on the brief.

Kevin P. Martin, Goodwin Procter LLP, Boston, Massachusetts, filed a brief on behalf of amicus curiae the National Association of Criminal Defense Lawyers in support of defendants-appellees’ petition for rehearing en banc. Sheryl McCloud, the National Association of Criminal Defense Lawyers, Seattle, Washington, was also on the brief.

Jason M. Skaggs, the Law Offices of Jason M. Skaggs, Palo Alto, California, filed a brief on behalf of amici curiae the Association of Corporate Counsel and the Chamber of Commerce of the United States of America in support of defendants-appellees’ petition for rehearing en banc. Susan Hackett, the Association of Corporate Counsel, Washington, D.C.; and Robin S. Conrad and Amar D. Sarwal, the National Chamber Litigation Center, Inc., Washington, D.C., were also on the brief.>

At page 943 of the slip opinion, line 17, after the citation <412 F.3d 1102, 1117 (9th Cir.2005) (emphasis added). > add a new sentence reading <Thus, in Gonzalez we focused on the close control that the owner-operators exercised over their small business, which happened to be family-run^

At page 943 of the slip opinion, 553 F.3d at 1256, delete the paragraph beginning <Kaplan and Brunk argue that> and replace with the following two paragraphs:

< Kaplan and Brunk argue that Gonzalez supports their claim of Fourth Amendment standing, but their argument rests on an overbroad reading of our opinion. We explicitly tied the defendants’ standing to the “nature of the location.” Id. at 1116. The defendants exercised, in the context of “a small, family-run business housing only 25 employees at its peak,” “managerial control over [the] day-to-day operations” of the office where the conversations the wiretap “seized” took place, they owned the building where the office was located, and they not only could access the office but actually “exercised full access to the building.” Id. at 1116-17. In our detailed factual analysis, therefore, we made clear that it does not suffice for Fourth Amendment standing merely to own a business, to work in a building, or to manage an office.

The facts in this case place SDI in a gray area outside the particular facts of Gonzalez, because at most Kaplan and Brunk managed and worked in the office *690 of a business of which they were, together, controlling shareholders. SDI’s headquarters is twice the size of the office at issue in Gonzalez. The magistrate judge’s findings of fact, which the district court adopted, emphasize primarily two aspects of the role Kaplan and Brunk played at SDI. First, the magistrate judge noted that Kaplan and Brunk owned and had authority to set policy at SDI. He also pointed out that, in their directorial capacities, they put in place significant security measures at SDI’s headquarters. These facts show that SDI, through Kaplan and Brunk, took steps to protect the privacy of its headquarters. But the magistrate judge’s findings do not show that Kaplan and Brunk personally managed the operation of the office on a daily basis, only that they set its general policy as officers of SDI. Because Kaplan and Brunk personally exercised less control over the premises in question than did the defendants in Gonzalez, that precedent does not control here.>

At page 943 of the slip opinion, line 38, 553 F.3d at 1256, replace with <Thus, although >

At page 945 of the slip opinion, line 10, 553 F.3d at 1257, delete <, family-run >

At page 949 of the slip opinion, line 9, 553 F.3d at 1259, delete footnote 9.

At page 949 of the slip opinion, immediately before Part III.A.2, 553 F.3d at 1259, insert a new paragraph and footnote as follows:

<The defendants argue that Vesikuru is distinguishable, because there we stated that “we learned at oral argument that in Washington State, contrary to the practice we usually see in federal court, the issuing judge routinely attaches the supporting affidavit, or ‘sworn complaint,’ to the warrant, and that the issuing judge and the officers executing the warrant view the warrant and affidavit as one integrated document.” Vesikuru, 314 F.3d at 1120. However, we do not read this passage as affecting the suitability of the words of reference. Although Vesikuru does not explicitly separate the two requirements, the passage is only logically applicable to the second prong of the Kow test, that “the affidavit either [be] attached physically to the warrant or at least accompan[y] the warrant while agents execute the search.” 58 F.3d at 429 n. 3. 1 >

At page 951 of the slip opinion, line 6, 553 F.3d at 1260, add a footnote at the end of the sentence ending <the affidavit fails. > The footnote should read <Of *691 course, nothing in this opinion affects the statutory obligation of the searching agents to leave a copy of the warrant and a receipt for property taken with “the person from whom, or from whose premises, the property was taken, or ... [left] where the officer took the property.” Fed. R.Crim.P. 41(f)(1)(C). Defendants did not raise Rule 41(f) in their brief on appeal. >

II

The motions to become amicus curiae filed on February 27, 2009, by the National Association of Criminal Defense Lawyers, the Association of Corporate Counsel and Chamber of Commerce of the United States of America, and the American Civil Liberties Union of Nevada are, respectively, granted.

The panel has unanimously voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

We must decide whether corporate executives may challenge a police search of company premises not reserved for the executives’ exclusive use.

I

A

After a nearly two-year investigation spearheaded by the Internal Revenue Service (“IRS”) with the participation of four other federal and Nevada state agencies, investigators concluded that SDI Future Health, Inc. (“SDI”), a California corporation, had engaged in wide-ranging Medicare fraud. In addition, they believed that both SDI and Todd Stuart Kaplan, its president and part-owner, had committed extensive tax fraud. On January 28, 2002, based on the information obtained during the investigation, IRS Special Agent Julie Raftery applied for a warrant to search SDI’s premises.

The warrant relied on an affidavit sworn by Raftery, which contained information she had learned from three former employees and two business associates of SDI. 1 The affidavit alleged that SDI, Kaplan and Jack Brunk, also an officer and part-owner of SDI, participated in a conspiracy with physicians and cardiac diagnostic companies to defraud the Medicare program, the Federal Employees Health Benefit Program, and private healthcare insurance carriers by seeking payment for services that SDI never rendered. According to the affidavit, they sometimes billed twice for such services and made kickback payments to physicians who participated in the scheme. It alleged specifically that SDI employees who were placed in participating doctors’ offices would induce patients to participate in a sleep study. While cardiac diagnostic companies affiliated with SDI would purport to com *692 píete a report of the results of each sleep study, officers of SDI would instead affix a signature stamp bearing the signatures of staff physicians on reports that other SDI employees had actually completed. Referring physicians were instructed to bill for time spent reviewing the reports, a task the physicians never actually performed. Frequently, SDI would then recommend that a patient participate in further studies, usually in cases where the patient’s health insurer would pay for them.

The affidavit also revealed incidents of alleged tax fraud. It noted that Kaplan and his wife reported negative gross income and, consequently, paid no taxes in the years 1996, 1998 and 1999, and reported relatively low income in 1997 and 2000. During the same period, however, the couple purchased several expensive automobiles and watercraft and supported a home mortgage. This discrepancy, according to the affidavit, provided the probable cause to support the investigators’ belief that Kaplan and his wife substantially underreported their gross income during those years. The government also alleged that SDI had violated federal tax laws by under-reporting its sales revenue and its income at least for the years 1996-2000.

The government submitted a proposed warrant with its affidavit. Appendix A of the warrant stated that the premises to be searched were SDI’s corporate headquarters, principal business offices, and computers. Appendix B provided 24 categories of items to be seized and gave specific instructions concerning retrieving and handling of electronic data and other technical equipment. 2

*693 A magistrate judge took approximately two hours to review the government’s affidavit and proposed warrant. He ultimately concluded that probable cause existed for the search and agreed to issue the proposed search warrant, on the condition that both the affidavit and the search warrant be amended to include protections for patients’ medical information. The govT ernment made the requested revisions, and the magistrate judge issued the warrant.

The day before the execution of the search warrant, Special Agent Raftery met with the forty-two agents who would make up the search team. She distributed copies of the affidavit and gave them time to read it. She then conducted a “verbal briefing,” explaining the probable cause for the search warrant and “the items that [the search team was] searching, for and the items to be seized.” All members of the search team were to have the cellular phone number of Special Agent Raftery during the search.

The team executed the search early the following morning, on January 31, 2002. Upon arriving at the scene, Special Agent Raftery met with one of SDI’s executive officers and delivered a copy of the search warrant, but not a copy of the affidavit because it had been sealed by the district court. The affidavit was, however, available to the members of the search team. Kaplan also received a copy of the warrant, and he consented to allow investigators to search an off-site storage warehouse used by SDI.

B

About three years after the search, a federal grand jury in the District of Nevada returned an indictment charging SDI, Kaplan and Brunk with one count of conspiracy, in violation of 18 U.S.C. § 371-specifically conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1347, and to provide illegal kickback payments, in violation of 42 U.S.C. § 1320a-7b(b); 124 counts of health care fraud, in violation of 18 U.S.C. § 1347; one count of illegal kickbacks, in violation of 42 U.S.C. § 1320a-7b(b); one count of conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h); and three counts of attempting to evade or defeat taxes, in violation of 26 U.S.C. § 7201. Additionally, Kaplan and Brunk were each individually indicted for three and four counts, respectively, of attempting to evade or defeat taxes, in violation of 26 U.S.C. § 7201. The indictment also alleged three counts of forfeiture for the proceeds of health care fraud and money laundering, under 18 U.S.C. §§ 24, 982(a)(7), 982(a)(1), and 1347.

On December 2, 2005, SDI, Kaplan and Brunk (collectively “the defendants”) filed a motion to suppress evidence obtained from the search warrant, arguing that the warrant was vague and overbroad in violation of the Fourth Amendment. On June 26, 2006, a magistrate judge entered a Findings and Recommendation, in which he recommended that the motion to suppress be granted in part.

On April 4, 2007, the district court adopted the magistrate judge’s factual *694 findings, but entered an order granting the defendants’ motion to suppress in full rather than in part. The district court first held that Kaplan and Brunk had standing to challenge the search of SDI’s business premises, because they “had significant ownership interests in SDI,” “exercised a high level of authority over the operations of the company including the authority to set and control policy regarding access to SDI’s business records and computer systems,” “maintained offices at SDI’s corporate headquarters and were present during the execution of the Search Warrant,” and because SDI “maintained a level of security and confidentially [sic] practices regarding its premises and records that one would reasonably expect of a health care provider.”

The district court concluded that items 7, 9-13, and 24 of the search warrant were overbroad and lacked sufficient particularity because “[t]he search warrant did not limit these general categories of business documents and financial records to the seizure of records relating to the criminal activity described in the affidavit,” and because they lacked “any time restriction.” Similarly, the district court noted that items 2, 4, 8, and 19, of the search warrant were “borderline in acceptability,” but nevertheless violated the Fourth Amendment because “some additional description could and should have been provided regarding these categories.” Lastly, the district court concluded that the “good faith exception” did not apply in this case based on its conclusion that the affidavit was not incorporated into the warrant. Without the affidavit, the court concluded, the agents’ reliance on the warrant alone was not objectively reasonable, since it “did not contain any description of the alleged criminal activity relating to the listed categories of documents.”

On May 3, 2007, the United States timely sought an interlocutory appeal of the district court’s order.

II

The government first argues that Kaplan and Brunk lack standing to challenge the search and seizure of materials from SDI’s premises. 3 According to the government, their mere ownership and management of SDI, and the steps SDI took to preserve the security of its business files, are inadequate to support the conclusion that Kaplan and Brunk personally had an expectation of privacy in the searched areas and seized materials. While “[i]t has long been settled that one has standing to object to a search of his office, as well as of his home,” Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), this case presents the novel issue of the extent to which a business employee may have standing to challenge a search of business premises generally.

A

The Fourth Amendment ensures that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and *695 seizures, shall not be violated, and 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. TV. A person has standing to sue for a violation of this particular “right of the people” only if there has been a violation “as to him,” personally. Mancusi, 392 U.S. at 367, 88 S.Ct. 2120. In other words, Fourth Amendment standing, unlike Article III standing, “is a matter of substantive [Fjourth [Ajmendment law; to say that a party lacks [Fjourth [Ajmendment standing is to say that his reasonable expectation of privacy has not been infringed.” United States v. Taketa, 923 F.2d 665, 669 (9th Cir.1991). This follows from the Supreme Court’s famous observation that the Fourth Amendment “protects people, not places,” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

To show the government has violated his Fourth Amendment rights, an individual must have “a legitimate expectation of privacy in the invaded place,” United States v. Crawford, 323 F.3d 700, 706 (9th Cir.2003) (internal quotation marks and citations omitted). Defendants must demonstrate “a subjective expectation of privacy in the area searched, and their expectation must be one that society would recognize as objectively reasonable.” United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir.1999).

As a logical extension of this approach, “[pjroperty used for commercial purposes is treated differently for Fourth Amendment purposes from residential property.” Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (plurality opinion); see also New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (“An expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual’s home.”). 4 Of course, individuals may still have a “reasonable expectation of privacy against intrusions by police” into their offices. O’Connor v. Ortega, 480 U.S. 709, 716, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (“Within the workplace context, ... an expectation [of privacy] in one’s place of work is based upon societal expectations that have deep roots in the history of the Amendment.” (internal quotation marks and citations omitted)). But, unlike the nearly absolute protection of a residence, the “great variety of work environments” requires analysis of reasonable expectations “on a case-by-case basis.” Id. at 718, 107 S.Ct. 1492.

Our precedents provide numerous guideposts, however. For starters, it is *696 crucial to Fourth Amendment standing that the place searched be “given over to [the defendant’s] exclusive use.” Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1335 (9th Cir.1987). We have thus held that mere access to, and even use of, the office of a co-worker “does not lead us to find an objectively reasonable expectation of privacy.” Taketa, 923 F.2d at 671. By the same token, we have rejected managerial authority alone as sufficient for Fourth Amendment standing. In United States v. Cella, we held the corporate officer of a hospital, whom we described as the “de facto controlling force in [its] management,” did not have standing to challenge the seizure of records from the hospital print shop. 568 F.2d 1266, 1270, 1283 (9th Cir.1977). Even though the defendant “had access to and control of the print shop operations, his rights did not include any expectation of privacy over documents which were kept at the print shop premises but over which [he] did not show an independent possessory or proprietary interest.” Id. at 1283.

It thus appears that an employee of a corporation, whether worker or manager, does not, simply by virtue of his status as such, acquire Fourth Amendment standing with respect to company premises. Similarly, and notwithstanding the reference to “an independent ... proprietary interest” in Cella, to be merely a shareholder of a corporation, without more, is also not enough. 5 As always, a reasonable expectation of privacy does not arise ex officio, but must be established with respect to the person in question.

We took this approach in United States v. Gonzalez, in which we held that the directors of a small, family-run corporation had standing to challenge a wiretap in one of the company’s buildings. That holding relied on the facts of the case:

[W]e simply hold that because the [defendants] were corporate officers and directors who not only had ownership of the [premises] but also exercised full access to the building as well as managerial control over its day-to-day operations, they had a reasonable expectation of privacy over calls made on the premises.

412 F.3d 1102, 1117 (9th Cir.2005) (emphasis added). Thus, in Gonzalez we focused on the close control that the owner-operators exercised over their small business, which happened to be family-run.

Kaplan and Brunk argue that Gonzalez supports their claim of Fourth Amendment standing, but their argument rests on an overbroad reading of our opinion. We explicitly tied the defendants’ standing to the “nature of the location.” Id. at 1116. The defendants exercised, in the context of “a small, family-run business housing only 25 employees at its peak,” “managerial control over [the] day-to-day operations” of the office where the conversations the wiretap “seized” took place, they owned the building where the office was located, and they not only could access the office but actually “exercised full access to the building.” Id. at 1116-17. In our detailed *697 factual analysis, therefore, we made clear that it does not suffice for Fourth Amendment standing merely to own a business, to work in a building, or to manage an office.

The facts in this case place SDI in a gray area outside the particular facts of Gonzalez, because at most Kaplan and Brunk managed and worked in the office of a business of which they were, together, controlling shareholders. SDI’s headquarters is twice the size of the office at issue in Gonzalez. The magistrate judge’s findings of fact, which the district court adopted, emphasize primarily two aspects of the role Kaplan and Brunk played at SDI. First, the magistrate judge noted that Kaplan and Brunk owned and had authority to set policy at SDI. He also pointed out that, in their directorial capacities, they put in place significant security measures at SDI’s headquarters. These facts show that SDI, through Kaplan and Brunk, took steps to protect the privacy of its headquarters. But the magistrate judge’s findings do not show that Kaplan and Brunk personally managed the operation of the office on a daily basis, only that they set its general policy as officers of SDI. Because Kaplan and Brunk personally exercised less control over the premises in question than did the defendants in Gonzalez, that precedent does not control here.

Thus, although our precedents provide a basic outline, we are left with little case law directly on point. Exclusive use of an office may be sufficient, Schowengerdt, 823 F.2d at 1335 and Mancusi, 392 U.S. at 369, 88 S.Ct. 2120, but Gonzalez illustrates that it is not necessary. Between the lines these three cases draw, it is unclear in which premises and materials belonging to a corporation a corporate employee has a legitimate expectation of privacy. One of our sister circuits, however, has crafted a balancing test that we believe helps to fill in the gap.

In United States v. Anderson, the Tenth Circuit laid out a test to deal with situations in which a corporate employee does not work on a regular basis in the area searched. See 154 F.3d 1225, 1230-32 (10th Cir.1998). Given our case law, Anderson suggests three factors a court should consider in cases where an employee has not established that the area searched is “given over to [his] exclusive use.” See Schowengerdt, 823 F.2d at 1335. The Tenth Circuit’s Anderson test looks to “(1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item.” 6 Anderson, 154 F.3d at 1232.

Though phrased vaguely, the first factor really addresses whether the item seized was personal property without any relationship to work. Id. at 1231 (noting that although “[o]wnership of an item does not confer automatic standing[,] ... property ownership is a factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated” (internal quotation marks and citation omitted)). In addition, we note that the third factor involves actions the employee takes on his own behalf, not as an agent of the corporation. See id. at 1232; see also O’Connor, 480 U.S. at 716, 107 S.Ct. 1492 (noting that an employee has a reasonable expectation of privacy in the contents of closed personal luggage in his *698 office) (emphasis added); United States v. Mancini, 8 F.3d 104, 110 (1st Cir.1993) (emphasizing that the defendant “took steps to assure that no one would have access to his files without his prior authorization [and] ... that [his] belongings were clearly labeled and were segregated from other items in the secured archive attic.”).

Reading Anderson alongside our own precedent, we conclude that, except in the case of a small business over which an individual exercises daily management and control, an individual challenging a search of workplace areas beyond his own internal office must generally show some personal connection to the places searched and the materials seized. To adapt Anderson, although all the circumstances remain relevant, we will specifically determine the strength of such personal connection with reference to the following factors: (1) whether the item seized is personal property or otherwise kept in a private place separate from other work-related material; 7 (2) whether the defendant had custody or immediate control of the item when officers seized it; and (3) whether the defendant took precautions on his own behalf to secure the place searched or things seized from any interference without his authorization. 8 Absent such a personal connection or exclusive use, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office.

B

The district court relied on three facts in concluding that Kaplan and Brunk had Fourth Amendment standing: their ownership of SDI, their management of SDI from offices in the building searched, and the security measures SDI took to secure its business records. Our review of relevant precedent indicates that these facts are too broad and generalized to support the district court’s conclusion. The security measures that SDI took to ensure the privacy of its business records are relevant only to the standing of the corporation itself, not of its officers. As for Kaplan and Brunk, their ownership and management do not necessarily show a legitimate expectation of privacy. See Hill, 374 F.2d at 873; Cella, 568 F.2d at 1283. Because neither claims to enjoy “exclusive use” of the places searched— that is, the entire SDI office — they each must show a personal connection, along the lines we have drawn out of Anderson, to justify an expectation of privacy.

Lacking precedent on what is admittedly a novel issue of law, the district court did not adequately develop the record. There *699 fore, the district court’s grant of the motion to suppress must be reversed and the matter remanded for further fact-finding. It seems that none of the items seized were the personal property of Kaplan or Brunk, • nor were they in the custody of either. Therefore, on remand, the district court should focus its inquiry on, but need not confine it to, whether either Kaplan or Brunk took measures, each on his or the pair’s personal behalf, to keep the items private and segregated from other general business materials. Of course, Kaplan and Brunk do have standing to challenge the admission of any evidence obtained from their own personal, internal offices.

Ill

Regardless of whether Kaplan and Brunk have Fourth Amendment standing, the government does not challenge the standing of SDI itself. We therefore discuss the merits of SDI’s challenge to the search, which focuses on the warrant. SDI challenges the warrant as overbroad and lacking particularity.

A

Before addressing its contentions on the merits, we must answer the threshold question of whether the warrant incorporated Special Agent Raftery’s affidavit. See United States v. Towne, 997 F.2d 537, 544 (9th Cir.1993) (“Only after the content of ‘the search warrant’ is established ... can the warrant be tested to see if it meets [the Fourth Amendment’s] requirements.”). If it was incorporated, then we evaluate the affidavit and the warrant as a whole, allowing the affidavit to “cure” any deficiencies in the naked warrant. Id.

We consider an affidavit to be part of a warrant, and therefore potentially curative of any defects, “only if (1) the warrant expressly incorporated the affidavit by reference and (2) the affidavit either is attached physically to the warrant or at least accompanies the warrant while agents execute the search.” United States v. Kow, 58 F.3d 423, 429 n. 3 (9th Cir.1995) (applying requirements with respect to overbreadth of a warrant); see also United States v. Vesikuru, 314 F.3d 1116, 1120 (9th Cir.2002) (applying requirements with respect to the lack of particularity of a warrant).

Our analysis proceeds with the understanding that “[t]he warrant requirement is a means of preventing arbitrary and unreasonable invasions of privacy;” furthermore, “the search warrant itself is the tangible evidence that precautions have been taken to ensure that no such invasion has occurred.” Towne, 997 F.2d at 548. The goal of the “cure by affidavit” rule is to consider those affidavits that limit the “discretion of the officers executing the warrant.” Id. at 545 (internal quotation marks omitted). The two requirements of the rule, therefore, are designed to ensure that a would-be curative affidavit fulfilled that function. Id. at 548 (“When the officer who requests authorization for the search, the magistrate who grants such authorization, and the officers who execute the search expressly rely upon a given set of papers containing a given series of words, they identify that set of papers and that series of words as the proof that proper precautions were taken to prevent an unreasonably invasive search. Fairness and common sense alike demand that we test the sufficiency of the precautions taken ... by examining that evidence.”).

1

A warrant expressly incorporates an affidavit when it uses “ ‘suitable words of reference.’ ” See id. at 545 (quoting United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982)). We have not defined *700 precisely what verbiage is suitable for this purpose, Vesikuru, 314 F.3d at 1120 (noting that “[n]one of our cases has addressed what ‘suitable words of reference’ are required”); indeed “there are no required magic words of incorporation.” Id. at 1121. However, in Vesikuru, we held that “suitable words of reference” were used where the “warrant explicitly stated: ‘Upon the sworn complaint made before me there is probable cause to believe that the [given] crime[ ] ... has been committed.’ ” Id. at 1120 (emphasis in original).

Such holding proves relevant to this case, because virtually the same language was used in the search warrant here. The warrant pointed to the affidavit explicitly, noting “the supporting affidavit(s)” as the “grounds for application for issuance of the search warrant.” The magistrate judge’s conclusion — which the district court adopted — that these were not suitable words of reference rested on his observation that the government “could and should” have used more precise language in this case. But our precedents do not require that the government use the most precise language of reference possible. Such language need only be “suitable.” See id. at 1121. In any event, the warrant in Vesikuru might also have contained more explicit wording, but we still held the language of reference in that case to suffice. Thus the similarity of the language of reference in Vesikuru compels our holding that the warrant here contained suitable language of reference to the affidavit and therefore expressly incorporated it.

The defendants argue that Vesikuru is distinguishable, because there we stated that “we learned at oral argument that in