{"id":1742,"date":"2008-01-31T07:03:34","date_gmt":"2008-01-31T07:03:34","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-01-31T07:03:34","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1742","title":{"rendered":"Known ambiguity in particularity clause voided search warrant"},"content":{"rendered":"

Ambiguous particularity clause in a search warrant made it defective. The officers knew it was ambiguous and elected which apartment to enter. Unlike Garrison<\/em><\/a>, the ambiguity was known before the search, not after. The fact the officers entered the correct apartment cannot be a factor. Motion to suppress granted. United States v. Fahey, 2008 U.S. Dist. LEXIS 6319 (N.D. Ill. January 29, 2008):<\/p>\n

The government also attempts to analogize the facts of this case to those in United States v. Owens<\/em>, 848 F.2d 462 (4th Cir. 1988), in which a court upheld the constitutionality of a search because the executing officers were able to resolve the ambiguity with respect to the intended premises by relying on other information known to them outside the affidavit. In Owens<\/em>, officers obtained a warrant authorizing them to search an occupied apartment on the third floor of a particular building. Id.<\/em> at 465. Upon arriving at the building, however, they discovered that there were two apartments on the third floor, one of which appeared to have never been occupied, and searched the other apartment. Id.<\/em> at 463, 465. As the Seventh Circuit explained in Jones<\/em>,<\/p>\n

While officers executing a warrant must generally suspend their search if they discover information that renders the warrant ambiguous, Garrison<\/em>, 480 U.S. at 87, … the Fourth Circuit upheld the officers’ actions in Owens, as the affidavit supporting the warrant clearly identified the apartment to be searched as one that was occupied, and no other apartment fit that description.<\/p><\/blockquote>\n

Jones<\/em>, 425 F.3d at 464-65 (citing Owens<\/em>, 848 F.2d at 465).<\/p>\n

Just as the facts in Owens<\/em> were distinguishable from those that the Seventh Circuit confronted in Jones<\/em>, so too are they distinguishable from the facts in this case. Here, as in Jones<\/em> but unlike in Owens<\/em>, “the evidence establishes that the description given in both the warrant and the affidavit fit the description of two separate apartments.” Jones<\/em>, 425 F.3d at 465. Thus, here, as in Jones<\/em>, “Owens does not apply to this case because the key facts in Owens were that the affidavit supporting the warrant specifically targeted an occupied apartment, and no other apartment fit the description given in the affidavit.” Id<\/em>.<\/p>\n

The government further notes that “of course, [Thomas] turned out to be right because the officers did, in fact, execute the warrant only in Urbina and Fahey’s apartment. The officers never entered Apartment D.” Gov. Resp. at 9. But just as “the discovery of contraband cannot validate a warrant invalid when issued,” Garrison<\/em>, 480 U.S. at 85-86, neither does it validate a search that was unconstitutional because the officers conducting that search knew that the warrant lacked sufficient particularity.<\/p>\n

Finally, the government argues that even if the search violated Fahey and Urbina’s Fourth Amendment rights, the evidence obtained pursuant to the search should not be suppressed because the officers acted in good faith in executing the search warrant. As discussed above, however, the good-faith exception does not apply here, where, as in Jones<\/em>, the officers (1) executed a warrant they knew to be facially ambiguous prior to the execution of the warrant and (2) circumvented the magistrate judge and resolved the ambiguity amongst themselves based on information that was not disclosed to the magistrate who issued the warrant. See 425 F.3d at 465.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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