United States v. Janet J. Thomas

BEAM, Circuit Judge.

Appellant, Janet Thomas, appeals the denial of her motion to suppress evidence seized at her residence pursuant to a search warrant containing an incorrect address. We affirm.

I. BACKGROUND

On January 11, 2000, police officers searched appellant’s apartment at 3202 South 62nd Street #22, Fort Smith, Arkansas (3202). The warrant used by the officers contained an address previously occupied by the appellant, 3108 South 62nd Street, # 2 (3108). The warrant contained no additional description of the place to be searched.

Over the course of several weeks prior to January 11, Officer Harris had been collaborating with a confidential informant (Cl) conducting controlled buys of crack cocaine from the appellant and her boyfriend. On January 2, 2000, Officer Harris prepared a search warrant for 3108 before sending the Cl to that address to conduct a controlled buy from appellant’s boyfriend. Officer Harris decided not to use the search warrant that day because the Cl did not observe any substantial amount of crack in the apartment.

Between January 2 and January 11, appellant and her boyfriend moved to 3202. Officer Harris was aware of this fact, and was surveilling the correct apartment while the Cl conducted another controlled buy of crack cocaine at 3202. The police decided to go forward with a search of 3202 on January 11. Harris prepared an affidavit, which included the proper address and a detailed description of the premises to be searched, in support of the search warrant. However, Officer Harris *807used the warrant he had prepared on January 2 and forgot to update the address.

Then, as if auditioning for a law school fact pattern, neither the issuing judge, nor Officer Harris noticed that the warrant contained an address different from the address on the affidavit. As a result, p0-lice searched the correct apartment at 3202 armed with a warrant authorizing them to search 3108. There is no question that the officers searched the apartment they intended to search, as described in the affidavit supporting the search warrant. They also had this apartment under surveillance while Officer Harris obtained the search warrant. Finally, Officer Harris had personal knowledge of which apartment was the intended target and led the search.

Appellant filed a motion to suppress the evidence obtained from the search on January 11, including inculpatory statements she made to officers. After a suppression hearing, the magistrate judge recommended denying the motion to suppress, and the district court2 subsequently entered an order adopting the magistrate judge's report and denying the motion.

II. ANALYSIS

"We will uphold the district court's denial of a motion to suppress unless it rests on clearly erroneous findings of fact or reflects an erroneous view of the applicable law." United States v. Rogers, 150 F.3d 851, 855 (8th Cir.1998).

A. Particularity

The Fourth Amendment states, "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. To satis-fy the particularity requirement, the place to be searched must be "described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort" and to avoid mistakenly searching the wrong premises. United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.1979).

There can be no argument that the warrant in this case satisfied the particularity requirement. The warrant authorized a search for 3108 South 62nd Street, Apartment #2. This is most decidedly not 3202 South 62nd Street, Apartment # 22, the location actually searched. This erroneous address was the only information in the warrant identifying the location to be searched. There are several cases in this circuit finding the particularity requirement satisfied although the description on the search warrant in question was not entirely accurate. See Rogers, 150 F.3d at 855 (upholding search where warrant described route to the property in question but left out final turn onto property because warrant otherwise described property); United States v. Valentine, 984 F.2d 906, 909 (8th Cir.1993) (finding a warrant sufficiently particular when it accurately described the target building, but listed the address as 3048 rather than 3050); Lyons v. Robinson, 783 F.2d 737, 738 (8th Cir.1985) (upholding search conducted pursuant to warrant that contained an improper address, but reasonably applied to place searched); United States v. Clement, 747 F.2d 460, 461 (8th Cir.1984) (finding a warrant valid when it listed the proper building number but the incorrect apartment number and the officer personally knew which apartment was target of search); Gitcho, 601 F.2d at 372 (upholding warrant where the listed address was *808incorrect but was reasonable description of unmarked building on unmarked street and searching officers had personal knowledge of place to be searched). None of these cases involved a warrant containing an obviously incorrect address standing alone.

Typically, a warrant that is not particular enough cannot be cured by the specificity of the affidavit supporting it. See United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir.1976). “Specificity is required in the warrant itself in order to limit the discretion of the executing officers as well as to give notice to the party searched.” Id. However, if the affidavit is incorporated into the warrant, it may cure the particularity defect of the warrant if the affidavit accompanies the warrant and the warrant uses suitable words of reference to incorporate the affidavit. Id. Officer Harris’ affidavit in support of his request for the warrant contained the correct address and a specific physical description of the target premises, but it was not incorporated into the warrant with suitable words of reference. Therefore, the affidavit did not cure the defective warrant.

B. Objective Good Faith Exception

In United States v. Leon, the Supreme Court carved out a good faith exception to the exclusionary rule in Fourth Amendment cases. 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Reasoning that the exclusionary rule was a judicial remedy created to guard individual rights through its deterrent effect against police misconduct, the Court held that evidence should not be suppressed where police officers rely in reasonable good faith on a properly obtained warrant, that proves to be invalid. Id. at 906, 916, 920, 104 S.Ct. 3405.

We have extended the holding of Leon, to uphold a search conducted pursuant to a warrant completely lacking a description of the premises to be searched. United States v. Curry, 911 F.2d 72 (8th Cir.1990). Curry directly controls this case. There, due to a clerical error, the police conducted a search relying on a search warrant that did not contain any address or description of the place to be searched. Id. at 76. The application for the warrant and accompanying affidavit contained accurate and specific descriptions of the target location. Id. The court in Curry held, as we do today, that the warrant was facially invalid and that the affidavit was not incorporated into the warrant because the warrant lacked any suitable words of reference. Id. at 76-77.

Although Leon contains language suggesting that a warrant might be so facially invalid that no officer could have relied on it in good faith (and thus the good faith exception would not prevent suppression), 468 U.S. at 923, 104 S.Ct. 3405, we held in Curry thatthis did not apply to every case where a warrant is found invalid on the ground that it is insufficiently particular. Curry, 911 F.2d at 77. Thus, although no officer could have reasonably believed the warrant in Curry described the premises to be searched, the court upheld the search on the Leon objective good faith rule.

There were several factors justifying application of the Leon exception to the exclusionary rule. First, the application and supporting affidavit both contained the correct address of the location to be searched. Id. at 78. Second, there was no evidence of bad faith on the part of the officer obtaining the warrant. Id. Third, the search was executed by the same officer who had prepared the affidavit, all but eliminating the chance the wrong location would be searched. Finally, the responsibility for this type of error in the warrant lies with the issuing judge. Id. Because the exclusionary rule was designed to deter officers (and would be ineffective *809against neutral judges), applying the rule in Curry would not have furthered the purpose of the rule. Id.

The only difference between the present case and Curry is that here, the warrant contained an incorrect address while in Curry the warrant contained no address. The above reasons justifying the decision in Curry apply with equal force to the present situation. Appellant argues that the present case is distinguishable because a “mere reading of the warrant” would have revealed the error. The same is true of the warrant in Curry. Appellant also argues that in the present case the error on the face of the warrant was the error of Officer Harris. It is true that Officer Harris made an error in this case by submitting the warrant prepared earlier with the incorrect address. However, this is not sufficient to change the fact that the issuing judicial officer bears the primary responsibility for ensuring the accuracy of the warrant as the final reviewing authority. Cf. id. at 78 (“ ‘The responsibility for the inadvertent omission of the address on the warrant itself, must be borne by the [issuing official], as the final reviewing authority’ ”) (quoting United States v. Bonner, 808 F.2d 864, 867 (1st Cir.1986)) (alteration in original). We do not see a significant difference on the issue of responsibility for the error between the present case and Curry.

The fact that the warrant here contained an incorrect address, thus increasing the likelihood of searching the incorrect residence, does give us pause. However, this .increased danger was mitigated not only by the fact that Officer Harris, who had personal knowledge of the location to be searched, both obtained and executed the warrant, but also by the fact that the intended location was under surveillance while he secured the warrant. See Gitcho, 601 F.2d at 372 (upholding search because, although warrant contained slightly incorrect address, agent executing warrant personally knew which premises to search and premises were under constant surveillance while warrant was obtained).

Appellant argues that the good faith exception should not apply because the issuing judge abandoned his neutral role and just acted as a rubber stamp, evidenced by the fact that the error was so obvious. The district court found the issuing judge had not abandoned his neutral role, and that conclusion was not clearly erroneous.

III. CONCLUSION

Accordingly, we affirm the decision of the district court.

. The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas.