E.D.Mich.: Officers were on notice there were two separate offices nearby, and the warrant for one did not support search for both

Officers violated the Fourth Amendment with a warrant for business premises when they were really on notice two weeks before the search that there were two nearby offices that were separate (Suite 218 & Suite 218A). Garrison is instructive because there the officers discovered that there were two apartments and discontinued the search when they did. United States v. Muse, 729 F. Supp. 2d 905 (E.D. Mich. August 2, 2010):

Rather, the point of distinction of these cases is the information available to the officers at the time they conducted their search. There is no proper way a reasonable person could conclude that Suites 218 and 218A were part of the same unit on May 2, 2006. Suite 218A was distinct, different, separate, discrete, and clearly identified as such. There was no access from one suite to the other. Entry to Suite 218A was restricted by a separate lock and key. The signage was distinct. The name on the door identified a business that was not the focus of the investigation or even mentioned in the search warrant affidavit. The record shows that the agents were not only on constructive notice of the separateness of the units, they had actual notice, which prompted a call to the AUSA.

Unlike the officers in Garrison, the agents in this case did not discontinue their search of Suite 218A when they discovered it was a separate unit. They went ahead anyway, when they could have easily sought and likely obtained judicial authorization to search the separate unit, simply by providing some additional information to the magistrate judge who had issued the search warrant only hours earlier. The search warrant issued in this case did not authorize the search of Suite 218A.

Because the search of Suite 218A was beyond the plain terms of the search warrant, that search was, by definition, warrantless. The Supreme Court has consistently held that in the criminal context, warrantless searches are per se unreasonable unless they fall within a few specifically established and well-delineated exceptions. Payton v. New York, …, Mincey v. Arizona, …. Those exceptions include the seizure of a fleeing suspect, …, prevention of the imminent destruction of evidence, …, searches incident to a lawful arrest, …, and consent, …. The government offers no evidence of any such circumstances and the records suggests none. The search of Suite 218A, therefore, must be deemed unreasonable.