CA2: Warrant said Apt. 2, but officers determined Apt. 1 was correct; search of Apt. 1 was thus warrantless and not in good faith

The search warrant said Apartment 2. The officers searched Apartment 1 because that turned out to be the target apartment. That was a warrantless search. The warrant did not say “Bershchansky’s apartment” or the “one on the right.” The good faith exception also does not apply. United States v. Bershchansky, 2015 U.S. App. LEXIS 9383 (2d Cir. June 5, 2015):

The government contends that the warrant authorized the search of Bershchansky’s apartment, notwithstanding the erroneous apartment number, because the physical description of Bershchansky’s apartment was partially correct. We reject the argument. First, the warrant did not authorize a search of Bershchansky’s apartment, but rather it authorized the search of Apartment 2. Indeed, the warrant itself makes no reference to Bershchansky at all. Second, although the warrant described the apartment “to the right,” it clearly specified Apartment 2. The designation of the apartment number, under the circumstances, was a marker at least as specific and meaningful as the words “to the right.”

This case differs from those in which courts have held warrants valid despite erroneous address numbers. E.g., United States v. Brobst, 558 F.3d 982, 992 (9th Cir. 2009); United States v. Turner, 770 F.2d 1508, 1510-11 (9th Cir. 1985); United States v. McCain, 677 F.2d 657, 660-61 (8th Cir. 1982); State v. Blackburn, 266 Ore. 28, 511 P.2d 381, 385 (Or. 1973). In those cases, other information in the warrant (or the executing officers’ knowledge) strongly indicated a particular location other than the misidentified address. Here, in contrast, the warrant could be read by a reasonable officer as indicating either of two apartments — “[A]partment 2” or the apartment “to the right.” Significantly, most of the government’s evidence in the warrant application pointed to “[A]partment 2.” Under the circumstances and in light of the warrant application, therefore, the apartment number was the more salient descriptor of the location to be searched.

We have previously noted that it may be “enough if the description is such that the officer[s] armed with a search warrant can with reasonable effort ascertain and identify the place intended.” Velardi v. Walsh, 40 F.3d 569, 576 (2d Cir. 1994) (internal quotation marks omitted). Even if the likelihood of error was roughly 50%, however, that is too great a risk under the law, which requires “no reasonable probability of searching another premises in error.” Id. (emphasis omitted). Here, however, based on the information known to Raab, the agents could not have reasonably concluded that Bershchansky actually lived in Apartment 1 and that they were authorized to search Apartment 1.

Our conclusion is supported by our decision in Voustianiouk, which involved similar facts. Indeed, the same agent — Raab — was at the center of that case. In Voustianiouk, Raab obtained a warrant to search the first floor apartment at a location, but when he discovered that the suspect lived on the second floor, he instead searched the second floor apartment without obtaining further authorization to do so. 685 F.3d at 208. We held that, consequently, the agents conducted a warrantless search of the second floor apartment, in violation of the Fourth Amendment. See id. at 208, 211, 214.

. . .

We conclude that the search of Bershchansky’s apartment was not objectively reasonable and that the agents could not have relied on the warrant in good faith. We also hold that the benefits of deterring the agents’ unlawful conduct outweigh the costs of suppressing the evidence obtained.