When the officer arrived at plaintiff’s address with a search warrant for apartment 1, he instead found apartments 1A and 1B. The officers attempted to clear up the ambiguity before the search, and they searched 1A finding nothing, and the occupant of 1A sued them. “Warrants with similar errors or ambiguities are not new.” Here, they get qualified immunity for the search because, going in to the affidavit process and the search of the building, nobody knew there were two apartments until they got there, and it was a reasoned belief that 1A was the one described. “Search first, check later, is not a sound policing strategy,” but the officers weren’t that reckless on these facts. Muhammad v. Pearson, 2018 U.S. App. LEXIS 22992 (7th Cir. Aug. 17, 2018):
When Officer Del Pearson and other Chicago police officers executed a search warrant for “apartment 1” at a Chicago address, there was a problem with the warrant. Apartment 1 did not exist. The building contained an apartment 1A and an apartment 1B. Pearson and the other officers actually searched apartment 1A. They did not find the drugs and related items they were seeking.
The occupants of apartment 1A then filed this suit against Officer Pearson under 42 U.S.C. § 1983 for violating their Fourth Amendment rights through unlawful entry and false arrest. Both sides moved for summary judgment. The district court denied plaintiffs’ motion and granted Pearson’s. We affirm the judgment but on narrow grounds. Law enforcement officers who discover that a search warrant does not clearly specify the premises to be searched must ordinarily stop and clear up the ambiguity before they conduct or continue the search. See Maryland v. Garrison, 480 U.S. 79, 86, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987); United States v. Kelly, 772 F.3d 1072, 1083 (7th Cir. 2014). If they do not, they may lose the legal protection the warrant provides for an invasion of privacy and accompanying restraints on liberty.
As we explain below, however, we conclude that summary judgment for the officer was appropriate here. Defendant Pearson testified that he did not know there were two apartments, including an apartment 1B, and he has offered undisputed, reliable, and contemporaneous documents confirming his after-the-fact testimony that the address searched was in fact the correct target of the search authorized by the ambiguous warrant. Summary judgment on the unlawful entry claims was correct. Also, Officer Pearson had arguable probable cause to arrest plaintiff Muhammad for suspected drug trafficking, though Pearson quickly confirmed that Muhammad was not the right suspect and released him within fifteen minutes. Summary judgment based on qualified immunity was also correct on that unlawful arrest claim.
. . .
Warrants with similar errors or ambiguities are not new. When the police go forward with a search without checking back with the issuing judge, litigation is likely. Sometimes there is just a mistake in the papers. In other cases, officers seeking search warrants cannot obtain accurate information (especially about the interiors of multi-unit buildings), at least not without alerting the targets of the investigation. See, e.g., Maryland v. Garrison, 480 U.S. 79, 80, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987) (warrant was for “third floor apartment” but third floor had two apartments); United States v. McMillian, 786 F.3d 630, 634 (7th Cir. 2015) (typographical error in warrant and affidavit where target street address for search was “6333” but detective typed “6633”); United States v. Kelly, 772 F.3d 1072, 1076 (7th Cir. 2014) (warrant for “upper apartment” but building did not have upper and lower apartments and was instead “bisected into front and rear multi-story units”). And sometimes information is lost in communications between two police officers. E.g., Jones v. Wilhelm, 425 F.3d 455, 459 (7th Cir. 2005) (one officer obtained warrant for “upstairs apartment on the right,” but executing officer realized that phrase described two apartments because building had two staircases on opposite sides of building).
Officers executing warrants like these may violate the Fourth Amendment if they know or should know, before execution, that the warrant has an error or critical ambiguity that risks a search of the wrong location. Garrison, 480 U.S. at 86. At the same time, typographical errors or other mistakes will “not invalidate a warrant if the affidavit otherwise identifies the targeted premises in sufficient detail and there is no chance that another location might be searched by mistake.” McMillian, 786 F.3d at 640, citing Kelly, 772 F.3d at 1081.
. . .
Search first, check later, is not a sound policing strategy. Jones teaches that officers need to read the warrant before executing it, and they should call a judge if there is a discrepancy between the affidavit and the warrant. See, e.g., McMillian, 786 F.3d at 634 (officer on scene called judge after noticing error in address listed on warrant and affidavit). If they do not, they risk both personal civil liability and suppression of evidence in any criminal prosecution.
This case, however, is different from Jones in a critical way. Unlike the officer in Jones, who knew there were two apartments, knew that the warrant was ambiguous, and essentially took his best guess about which one to search, Officer Pearson testified that when he applied for the warrant he did not know there was an apartment 1B in the building. He also testified that the omission of “A” from the warrant was a clerical omission. Pearson used his knowledge of the case, including information from his source, to search the correct apartment, the one for which he had probable cause.
