D.Vt.: Street address without town in SW might be curable, but not here; also no GFE

The search warrant listed “39 Twin Oaks” within the “Twin Oaks Terraces” without specifying a city or town within the county. It described a “second building” as being the place to be searched which was not searched. At the suppression hearing, the executing officers testified, not the affiant. “The government argues that the ‘39 Twin Oaks’ within the ‘Twin Oaks Terraces’ is a unique address and contends that Defendant has failed to identify any other address with which it could be confused. However, the government presented no evidence to support a conclusion that the address is, in fact, unique. Instead, it makes this unsupported allegation in its Opposition.” That’s not evidence. This is a close call because this could be curable, but then it turns out that the place to be searched was otherwise misidentified, too, so the motion to suppress is granted. The good faith exception did not apply. United States v. Battle, 2013 U.S. Dist. LEXIS 152689 (D. Vt. October 24, 2013):

Finally, the government contends the warrant was sufficiently particular because the description of the place to be searched was otherwise accurate. Assuming arguendo that a search warrant that omits the town or city in which the residence is located may be cured in this fashion,5 in this case, the court cannot find that the description of the place to be searched was otherwise accurate. The warrant incorrectly describes the location of unit 39 as being in the center of the multi-unit building; inaccurately describes the building as being the “second building” in Twin Oaks Terraces; and describes the building’s color in a manner that differs from the government’s surveillance photograph of it. The description of the place to be searched thus contained inaccurate or confusing information beyond its omission of the city or town in which the residence to be searched was located.

4 Neither party briefed the issue of who bears the burden of establishing that an address is or is not unique. Arguably, the party drafting the search warrant is in the best position and has the greatest incentive to proffer this evidence to establish law enforcement acted lawfully. Some state courts, however, have placed this burden on the defendant. See, e.g., State v. Fisher, 639 P.2d 743, 747 (Wash. 1982) (en banc) (holding that the burden of proof is on the defendant to show that the property searched reasonably could have been confused with another property); People v. Fragoso, 386 N.E.2d 409, 415 (Ill. App. Ct. 1979) (holding that, under the U.S. Constitution, “[d]efendants had the burden of establishing the lack of particularity of description in the warrant yet they have never attempted to establish the existence of another 3445 West Diversey in Chicago, in Cook County, or, indeed, anywhere in the State”). Here, the court need not reach the issue because neither party proffered any evidence or requested the court to take judicial notice of any facts that would establish that the address in question is or is not unique.

5 The government cites United States v. Avarello, 592 F.2d 1339, 1344 (5th Cir. 1979) for the proposition that the omission of the city or town in which the place to be searched is located need not be fatal to a search warrant. In Avarello, the Fifth Circuit upheld a search warrant that erroneously identified the dwelling’s location as Dallas rather than Fort Worth. It observed, however, that although the description in the search warrant was inaccurate, the warrant’s caption provided the full and accurate address on the face of the warrant. Id. Moreover, the warrant provided “thorough physical descriptions of the building and of the individual apartment.” Id. at 1344 & n.8.

In summary, the search warrant’s description of the place to be searched did not ensure that those executing it “could ascertain and identify the target of the search with no reasonable probability of searching another premises in error.” Martin, 157 F.3d at 52 (internal quotation marks omitted). It was therefore, on its face, invalid and cannot be the basis for a lawful search and seizure unless the good faith exception applies. See Massachusetts v.Sheppard, 468 U.S. 981, 988 & n.5 (1984) (“[A] search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.”).