E.D.Va.: SW that mentioned no persons did not permit a search of persons found on the premises

The search warrant for property failed to include persons in the description of the place to be searched, and the warrant thus did not permit a search of defendant’s person. The good faith exception did not save it because the search warrant was facially deficient for a search of the person. United States v. Gregg, 833 F. Supp. 2d 535 (E.D. Va. 2011), Magistrate’s recommendation at United States v. Gregg, 2011 U.S. Dist. LEXIS 87129 (E.D. Va., July 20, 2011):

On the basis of Groh, the Court concludes the August 31 warrant did not provide Mills a basis for searching Gregg’s person. In order for the warrant to permit Mills to search Gregg, she needed “written assurance that the Magistrate actually found probable cause” to search Gregg. Id. at 560. The warrant provided no such assurance. The warrant contained neither language empowering Mills to search Gregg nor any reference to another document demonstrating the magistrate’s belief that there was probable cause to search Gregg. On its face, then, the warrant and the supporting affidavit are in conflict, because it appears the magistrate rejected the language in the affidavit permitting officers to search persons inside the home. Without a reference to that language, the warrant lacked any indication that the magistrate found probable cause to search any persons inside the home.

. . .

Furthermore, to the extent Leon sheds light on these facts, it expressly weakens the government’s argument. Among the circumstances under which the Supreme Court noted that the good faith exception would not apply is when a warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Id. at 924. See United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995). That language describes the situation leading up to the execution of the August 31 warrant. As the Court has explained, the warrant omitted any reference to persons inside the home, making it unreasonable for an officer to conclude from the warrant that there was probable cause to search anyone inside.