United States v. Willie Watkins

MOORE, Circuit Judge,

dissenting in part.

Because I believe that the search warrant in this case was “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid” as to the dilapidated residence, I respectfully dissent from part I.A. of the majority opinion. United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The majority upholds the search despite the fact that, in its own words, “the search warrant itself did not describe the second house with particularity or contain probable cause to search the second house, and ... the affidavit was not properly incorporated into the warrant and did not, at any rate, contain probable cause to search the second house.” Ante at 499. In addition, the majority opinion acknowledges that the affidavit did not accompany the officers executing the search warrant, and that knowledge which is passed from the officer-affiant to other officers executing the warrant cannot be the basis for forming the “good faith” required by Leon. Given all of these facts and circumstances, I cannot agree with the court’s conclusion that a reasonably well-trained officer could have concluded that he had probable cause to search the second residence.

The majority gives too much meaning to the boilerplate language of the affidavit. A second residence that was inhabited as late as three months prior to the search is not particularly described by the words “private ' vehicles, garages, structures, barns, sheds, and any and all out buildings and appurtenances located on the property.” Moreover, this affidavit was not attached to the warrant, was not incorporated by reference in the warrant, and was not even in the possession of the executing officers. The lengthy affidavit described much of the drug activity as observed by a confidential informant, but never mentioned a second house at all or suspicions of drug activity on other parts of the property. The defendants were both in custody at the time of the search, so exigent circumstances were not present. There was simply no connection between the warrant — or even the absent affidavit— and the second house on the property *507owned by Keith Louis, and no reason for the officers to search it without a valid warrant.

Other than the boilerplate language, the government offers three reasons for application of the Leon good-faith exception: the executing officers were told by Agent Parrish that the second house was within the scope of the search, they were given a map which identified both buildings, and they knew that Louis owned both houses. I agree with the majority that one officer telling other officers that the house is covered by the warrant cannot insulate the government from the requirements of the Fourth Amendment. The map, the government conceded, was prepared for another case and had nothing to do with these two defendants. J.A. at 169 (Tr. Suppression Hr’g at 4). Simple knowledge that Louis, a co-defendant, owned both properties cannot cure this facially defective warrant — permitting search of anything owned by the suspect would be much more akin to the “general warrants” of old than to the particularized requirements set down by the drafters of the Fourth Amendment.

The majority’s outcome does not follow from the case law on which it relies. In none of the cases cited by the majority did the warrant (or the incorporated affidavit) fail to “particularly describ[e] the place to be searched and the persons or things to be seized.” U.S. Const, amend IV. What was missing in each case was compelling evidence of some other nexus — that between the place and the defendant, as in United States v. Van Shutters, 163 F.3d 331 (6th Cir.1998), or that between the place and the criminal activity, as in United States v. Schultz, 14 F.3d 1093 (6th Cir.1994), United States v. Malin, 908 F.2d 163 (7th Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990), and United States v. Richardson, No. 94-6016, 1995 WL 408065 (6th Cir.1995). In those cases, the courts concluded that it was reasonable for the officers, based on the nature of the criminal activity, to draw inferences concerning the reasons for the search of the particular place. The problem here is that the particular place searched — the second residence — is not specified in the warrant or inferable from the affidavit. There was no objective reason for the officers to believe they had the right to search it.

Although there is no evidence that Parrish made a knowingly false affidavit or that the magistrate judge abandoned his neutral role, this 'search fails on the last prong of Leon: the warrant is “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid” as to the second residence, which is not mentioned even in the otherwise fairly detailed supporting affidavit. For these reasons, I dissent from Part I.A.