D.Minn.: Officer on scene noted SW facially deficient for lack of particularity and had another issued that cured the first

Defendant here argues that the difference between a black or a dark gray Dodge Charger having been involved in a bank robbery was significant. It’s not, especially when the vehicle flees as the officer attempted to stop it shortly after the robbery. The first search warrant for defendant’s house was plainly invalid for a failure to particularly describe the things to be seized, but a second was issued on the same affidavit to correct the problem, and it was sufficient and was issued before they left the premises. It also included nothing observed during the first admittedly “warrantless” search. United States v. Gatlin, 2015 U.S. Dist. LEXIS 21840 (D.Minn. January 26, 2015). (The problem, of course, is that the first warrant obviously wasn’t even read by the issuing judge or that judge is completely obtuse, or that should have been caught. At least a sharper officer, Det. Slawson, at the scene caught the problem before it was incurable.):

The Court answers both questions [of independent source] in the affirmative. First, Detective Slawson’s decision to apply for the second warrant was completely unrelated to what executing officers saw or learned in the initial, unlawful search. Her decision was prompted solely, and indisputably, by Detective Heilman’s observation that the first warrant failed to list the items to be seized. Second, no information obtained during the unlawful search was presented to Judge Miller with the second warrant application. The same probable cause affidavit provided in support of the first warrant was provided in support of the second warrant. In addition, Detective Slawson compiled the list of items to be seized based on her viewing of video footage of the Americana robbery, information obtained from other officers immediately after the robberies, and her interviews of bank employees. All of this information was known to Detective Slawson before she applied for the first warrant. Thus, there is no tainted information to redact.

The Court is aware that seized items may have already been in the police’s possession when the second warrant was signed, but as Murray recognized, the “re-seizure” of evidence does not foreclose the application of the independent source doctrine. See 487 U.S. at 542. Faced with situations where evidence remained in the police’s possession between the unlawful and lawful seizures, courts have not required the police to return the evidence and literally “re-seize” it. See United States v. Brooks, 715 F.3d 1069, 1075-76 (8th Cir. 2013) (where cell phone was seized and searched unlawfully, and retained by the police pending trial, finding that a search warrant issued a mere eight days before trial was an independent source for the evidence); United States v. Maxwell, No. 11-cr-369 (PAM/FLN), 2012 WL 2861372, at *6 n.4 (D. Minn. May 10, 2012) (finding admissible, under the independent source doctrine, evidence illegally seized from a vehicle during an inventory search and then legally “re-seized” pursuant to a search warrant obtained while the car remained impounded by the police), report and recommendation adopted by 2012 WL 2859921 (D. Minn. July 11, 2012); United States v. Terry, 41 F. Supp. 2d 859, 865 (C.D. Ill. 1999) (where seized currency was kept in the police’s possession between unlawful and lawful searches, finding that the police’s error was not “the sort the law needs to deter”).

In accordance with Murray’s direction, the Court has focused on whether the later “re-seizure” was genuinely independent of the earlier one, and has found that it was. Furthermore, applying the independent source exception in these circumstances gives effect to the rationale underlying the doctrine: to put the police in the same position they would have enjoyed, if no police error had occurred. Whether the list of items to be seized had been included from the start, or the scene had been frozen and the search suspended until a valid warrant was obtained, the evidence would have been present on the premises of 1341 Knox Avenue North and would have been validly seized.

Defendant does not contest the constitutionality of the second warrant, and the Court finds it was sufficiently particular and supported by probable cause. Accordingly, the second search warrant provided an independent source for the evidence seized from 1341 Knox Avenue North.