Opinion
Case No. 1:04CR-00003 DAK.
July 28, 2004
ORDER
This matter is before the court on Defendant's Motion to Suppress. Defendant seeks to suppress all evidence seized from his home on June 25, 2003 because the warrant executed in this case contains an incorrect address. An evidentiary hearing on the motion was conducted on May 19, 2004. Defendant Albert Ross was present with his counsel, Rebecca C. Hyde. The government was represented by Trina A. Higgins. Following the hearing, the court ordered a transcript as well as briefing from the parties. After briefing was completed, closing arguments were held on June 30, 2004. Since taking the matter under advisement, the court has further considered the law and facts relating to the motion. Now being fully advised, the court renders the following Order.
I. FINDINGS OF FACT
On June 25, 2003 police officers with the Weber/Morgan Narcotics Strike Force executed a search warrant at the defendant Albert Lee Ross's home located in Ogden, Utah. At the time the search warrant was drafted, the investigating officers mistakenly believed Mr. Ross resided in a single family dwelling when in fact the structure was a duplex with two separate addressees-804 West 27th and 810 West 27th. Mr. Ross resided in the west portion of the duplex ("810 West 27th") but the search warrant contained the address for the east portion of the duplex ("804 West 27th").
The warrant was issued based upon several controlled buys and surveillance conducted by Detective Kevin Grogan and Officer Juston Dickson. One of the controlled buys took place at Mr. Ross's residence located at 810 West 27th. In order to avoid detection, the officers had to observe the activities at the residence from a distance. However, they were able to conduct drive-by surveillance and observe the home using binoculars from several locations. Both officers were familiar with Mr. Ross's appearance and observed the home from several locations. Both officers observed Mr. Ross use the west portion of the structure. They never observed Mr. Ross use the east portion of the structure.
During surveillance, the officers were not able to see the address numbers "810" located near the front door of Mr. Ross's residence because they were painted the same color as the house and therefore difficult to see. They were also unable to see the addresses contained on the three mail boxes grouped together in front of the home near the west edge of the property. However, the officers were able to observe that the front of the structure had four doors and that only the east portion of the structure-later determined to be "804" — had red cinder block.
Officer Dickson drafted the affidavit and warrant with the assistance of Detective Grogan, but Officer Dickson was not present during the actual execution of the warrant that occurred approximately one week later. Since they did not know the address of the house, they called dispatch and asked for the address of the home located on the northwest corner of 27th and G Avenue. Dispatch gave them the address of 804 W. 27th. The officers did not check the utility or phone records to verify whether there was only one address for the structure nor did they check the vehicle registration of cars parked at the structure. Based only upon the information from dispatch, they included "804 W. 27th" in the warrant. The description of the home to be searched in the warrant stated:
804 West 27th. A white single family dwelling with white wood and red cinder block. The front to the home faces south. There is no visible address on the home. The home is located on the north west corner of 27th and G Avenue.
At the time the description was written, the officers believed the structure was a single family dwelling. In fact, the officers believed they were obtaining a warrant to search the entire structure even though they had never observed any activity, illegal or otherwise, in the east portion of the structure.
The day the warrant was executed, Detective Grogan drove by the home. He saw the defendant, Mr. Ross, and a female leaving the home from the west door and getting into a vehicle. Detective Grogan approached Mr. Ross in the driveway, asked for his name and informed him that he had a search warrant for his home. Detective Grogan handcuffed Mr. Ross on the front lawn of the house. Mr. Ross immediately asked Detective Grogan what the address was on the warrant. Detective Grogan told Mr. Ross the address on the warrant was 804 West 27th. Mr. Ross pointed to the east end of the structure and told Detective Grogan that the home on the east end of the structure was 804 West 27th. Mr. Ross told Detective Grogan that the structure was two separate homes and that there had been an addition built next to the original structure.
Detective Grogan testified that Mr. Ross told him that he lived in the east side of the duplex. Detective Grogan walked to the east end of the structure and looked through a window. The 804 portion of the duplex was filled with miscellaneous wood and other items. There was no door knob on the door and there were broken windows. The "804" dwelling did not appear to be inhabited and therefore Detective Grogan did not believe Mr. Ross's assertion that he was living in the east side of the duplex.
Detective Grogan entered the 810 West 27th dwelling and executed the warrant. Detective Grogan took Mr. Ross and the woman into the home, where Mr. Ross's father-in-law was also present. All three occupants of the home were moved to the living room while the search was conducted. Detective Grogan testified that prior to searching Mr. Ross's bedroom where the drugs were seized, he became aware of the fact the houses did not connect inside. Despite learning the structure contained two separate dwellings, Detective Grogan made no effort to obtain a telephonic warrant to cure the defect.
II CONCLUSIONS OF LAW
Defendant argues that the search warrant did not describe with sufficient particularity the premises to be searched. "The test for determining the adequacy of the description of the location to be searched is whether the description is sufficient `to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.'" United States v. Lora-Solano, 330 F.3d 1288, 1293 (10th Cir. 2003) (quoting United States v. Pervaz, 118 F.3d 1, 9 (1st Cir. 1997) (citations omitted). "[P]ractical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searched." Id. (quoting United States v. Dorrough, 927 F.2d 498, 500 (10th Cir. 1991)). An incorrect address does not automatically invalidate a warrant if the remainder of the description adequately describes the premises to be searched. Id.
In hindsight, there are two deficiencies in the warrant. First, the warrant contains the address for the east dwelling of the duplex ("804"). Second, the defendant's residence ("810") does not have red cinder block. The portion of the structure with red cinder block is 804. Although these facts are apparent now, they were not apparent to the officers at the time they drafted the warrant. The court "must judge the constitutionality of their conduct in light of the information available to them at the time they acted." Maryland v. Garrison, 480 U.S. 79, 85 (1987). The court can also consider the executing officer's knowledge in determining whether the warrant was valid, but his knowledge alone is not sufficient to meet the requirements of the Fourth Amendment. See United States v. Williamson, 1 F.3d 1134, 1136 (10th Cir. 1993). The officers reasonably believed at the time they obtained the warrant that the structure Mr. Ross resided in was a single family dwelling. This is not a situation where the officers intentionally provided false information in order to obtain a warrant or were reckless in obtaining the warrant. The court concludes that the warrant was valid when issued.
The next question is whether the execution of the warrant was unreasonable after Detective Grogan was informed by Mr. Ross that the warrant contained the wrong address and was able to observe for himself that the east and west portions of the dwellings were not connected on the inside. The cases cited by the government that allow the court to overlook technical errors in a warrant do not apply to a situation where an officer learns information during the execution of a warrant that caused, or should have caused him, to know he had a defective warrant. See Garrison, 480 U.S. at 85 ("Plainly, if the officers had known, or even if they should have known, that there were two separate dwelling units . . . they would have been obligated to exclude respondent's apartment from the scope of the requested warrant."); United States v. Davis, 557 F.2d 1239, 1248 (8th Cir. 1977) (noting that once the officers executing the search warrant discovered there was a separate apartment in the building "the officers did not search those areas any further.").
It may have been reasonable for Detective Grogan to disregard the defendant's initial assertion that the warrant contained an incorrect address as lacking credibility, but it was not reasonable for the officer to continue to search the residence after his own observations should have lead him to conclude that the structure was a duplex with separate addresses. The court concludes that the officer's continued search of the defendant's residence, after he knew or should have known that the search warrant erroneously contained an address and description of the wrong dwelling, violates the Fourth Amendment.