United States of America Government of the Virgin Islands v. Ernie Ritter Reggy Ritter Dale Ritter

NYGAARD,* Before RENDELL and SMITH, Judges. Circuit RENDELL, Judge. Circuit The United of America States and the (collec- Government of Virgin Islands tively, the “government”) appeal from the order of the District Court of Virgin Islands granting Ernie, brothers Reginald and Dale Ritter’s suppress motion to phys- ical evidence. We vacate will the order of the District Court and remand for further findings consistent opinion. with this BackgRound I.

A. Facts In August conducting ae- while surveillance, rial Officer Christopher How- Croix, ell of Islands, St. Virgin working * Nygaard Honorable Richard L. assumed sen- July ior status on 9, car- observed someone personally she had Drug Enforce- Federal with jointly house, and she had Drug into the Intensity rying plants High Administration ment (“Task there were person Force another from Area Task heard Trafficking in a marijuana growing grow rooms inside Force”), two indoor observed at least of a however, the rear house did not name tipster, stable roofless house. The A man could be Fredericksted, St. Croix. any of the residents or describe Howell plants. Officer tending the seen where house, precisely indicate nor did she units, who en- ground Force notified Task growing. Officer plants were in the house warrant, de- without a premises tered the for more asking not remember Howell did plants growing stroyed the information. specific gardener the gardener. apprehended call, Officer Howell Following the second tending the cultivating plants admitted warrant, basing immediately applied for house; no residing denied but cause support his affidavit him. Three against charges were filed raid and the information the 2002 on both marijuana plants grow- plots of additional anonymous tipster. Other by the provided also house the were in a field behind ing upon previous experience his than to draw during the raid. destroyed and discovered undertake Howell did not Officer April on following Spring, investigation additional corroborative any of two the first received Officer Howell determine, alia, many how individ- inter relating property calls issue. The in the house at uals resided indicating its and previously surveilled by refer- property the affidavit identified marijuana on the growing were residents (“Attachment photograph an aerial ence to female caller unidentified premises. structure ’’j,1 large shows a main ‘A’ which “occupants advised Officer Howell two outside with at least residence provided— names were of the house”—no visible, additional along two doors with marijuana “to the rear growing were The warrant premises. structures advised that there She their residence.” Magistrate issued subsequently “ located in plants’ were ‘hundreds premises Judge identified adjacent and the field stables horse New known number as “No searched Affidavit.) (Howell Officer stables.” fur- St. Croix U.S.Y.I. Street Frederiksted took no information but noted the Howell ”,2 ‘A’ and Attachment on ther (cid:127) pictured action. immediate for government authorized later, May Officer Two weeks process, “marijuana and items used to Again, call. second received a Howell i.e., marijuana, growing of facilitate the anonymous, but Officer caller remained units, ventilation air-conditioning lighting, it to be he believed Howell testified that units, packaging materials.” scales April placed had person the same who enforce- many law was one Howell additional provided call The second call. execution present ment officers repeated the informant information: However, following day. being grown allegation that the Dis- hearing suppression before at the added residence but in the back of the agree property’s that the parties now 2. The parties disputed that time have the 1. At no description Mars Hill. is 87 correct property the Ritters' "A” Attachment features part Hill “is that Mars testified Officer Howell subject was the property that the same and is ad- as to and that confusion New Street” by Officer Howell's 2002 raid initiated of the need to the island illustrated dresses on aerial surveillance. photograph premises of the attach a searched. Court, trict closet; he was the money witness to his drugs were found testify regarding the raid.3 Officer Howell Ritter; the oven or broiler of Dale explained that present those on the scene marijuana was discovered on Dale Ritter’s entry included various teams person patdown after a by officers. “teams” — (who conduct an initial sweep prem- Proceedings B. (who District Court people), perimeter ises for teams se- (who cure perimeter) and search teams The District granted the defen- conduct a thorough more search and actu- dants’ motion to suppress physical all evi- evidence). ally seize At point during some Although dence.5 the District Court re- execution, the warrant’s entry team mem- jected defendants’ contentions that bers, who were the first to infiltrate the warrant was not supported by probable premises, realized that the property’s main cause and that it adequately failed to de- structure single but, was not a dwelling searched, scribe the location to be rather, consisted of at least four separate that, Court found based on what the offi- apartments. The record indicates that cers discovered as to the true character of each -Ernie, of the defendant brothers-— residence, the warrant did not describe Dale and Reginald occupied separate — particularity with place to be searched. apartments, although it is not clear which Citing to the Supreme opinion Court’s brothers, Dale, other than was home Garrison, Maryland v. the District Court at the time of the raid. Despite the dis- held that the warrant facially defi- covery of multiple residence, in units words, cient—in other entry teams’ entry after the teams finished prelim- their discovery of multiple units inside the resi- inary sweep, search teams were sént in to dence essentially had functioned to retro- more thoroughly search premises actively invalidate the search warrant. collect evidence. While the record does 79, 86-87, 480 U.S. 107 S.Ct. 94 not make clear whether Officer Howell (1987). L.Ed.2d 72 According to the Dis- house, even entered the he testified as to Court, trict Howell and his fellow officers the evidence observed and seized inside.4 enjoyed a “windfall” but should not have testimony Howell’s concerning the se- upon acted it—“Once officers quence of events is imprecise, but ulti- realized the building was a multi-unit mately, marijuana, guns and cash were dwelling, the Court holds that the search collected from various locations within the warrant was defective for failing specify building, including the respective brothers’ unit(s) which were to be searched.” apartments. predicted by As the anony- government contended that tipster, mous rooms, two grow indoor one warrant should nonetheless be downstairs deemed upstairs, and one were discov- sufficient Marijuana “good ered. because the faith” excep- was also found growing in at least tion should applied. two more have areas either in or District outside addition, rejected the home. In this argument, rifle was noting that found laying either hanging or on the bed there are four situations in gen- which the of Ernie Ritter along with a gun second eral presumption faith, good gen- which Only I, two witnesses testified in total —How- I decided during who would do what Peterson, ell and Andre investigator an for the the course of the search.” Office of the Public Defender. 5.The motion was filed defendant Ernie 4. Howell perimeter himself was on a team. Ritter, joined by and then Regi- his brothers responsibility He described his as the “affiant nald and Dale Ritter. stating: search” might say "You

261 order, District factu- Court’s we review issuance on the mere attaches based erally '- error, see for clear United warrant, findings al negated: of a (3d Roberson, 75, 77 90 F.3d v. [judge] issued States (1) magistrate [when] States, Cir.1996) deliberately v. United (citing on a Ornelas in reliance the warrant affidavit; 699-700, 116 S.Ct. recklessly false or 517 U.S. (1996)), plenary and exercise (2) [judge] aban- magistrate L.Ed.2d 911 [when] determinations, per- failed to judicial role and see legal his its doned review over function; and detached neutral form his F.2d Coggins, v. States United (3) Cir.1993). However, on an (3d was based a dis- when warrant [when] proba- in indicia of lacking court, affidavit “so de- reviewing magistrate’s trict official belief to render cause as ble cause, bases its termination unreasonable”; or entirely its existence contained ruling on facts probable cause facially (4) was so the warrant [when] review affidavit, plenary exercise we particularize it failed deficient United court’s decision. over district things to be searched place (3d Conley, F.3d v. States be seized. omitted). Cir.1993) contrast, (citations (3d 301, 308 Cir. 246 F.3d Hodge, v. court exer- our court and district both omitted). 2001) (citation on Based magis- review cise deferential place particularize failure to warrant’s cause determina- initial trate’s searched, Court found District (citing Illinois tion. facially defective based the warrant above, apply declined factor the fourth (1983)). L.Ed.2d 527 po “When the exception. good faith were multi that there realized lice officers B. Discussion the search dwelling ple units of the Amendment unit(s) Fourth as to which The guidance gave them no “The provides: Constitution searched, United States police officers to be were the. in their executing to be secure right people of the to have been not be said could effects, subsequently houses, and by papers, faith good persons, the warrant residential and sei four different searches searching least unreasonable against pursuant violated, All evidence seized units.” and no zures, War not be shall warrant, thus District Court cause, search issue, probable upon but shall rants concluded, suppressed. should be affirmation, par and or by Oath supported place describing the ticularly Analysis II. things to be searched, persons or and of Review and A. Standard Jurisdiction Const, right The amend. IV. seized.” U.S. un- jurisdiction afford property had and security person The District Court 1612; jurisdiction have § we may be der 48 U.S.C. Amendment Fourth ed appeal pursuant government over this ways different various invaded in § 18 U.S.C. here, defendants and searches seizures — of the magistrate’s issuance challenge suppress, On a motion execu government’s well as warrant as showing the burden bears government however, warrant; must “[i]t tion of that constituting a act individual that each Con what always be remembered the Fourth under seizure and all searches stitution forbids reasonable. United Amendment was. seizures, searches unreasonable (3d but 242, Johnson, 245 63 F.3d v. States States, 364 seizures,” v. United Elkins Cir.1995). suppression to a respect With 262 1437,

U.S. 80 4 S.Ct. tips mous L.Ed.2d that such information does (1960). 1669 not form an adequate for basis the issu- ance of a warrant under Gates its 1. Probable Cause 233, progeny. 462 U.S. 103 2317 S.Ct. requirement threshold (replacing two-prong “totality test with a issuance of a probable cause. approach circumstances” for deter- However, in reviewing the issuance of a mining tip informant’s established warrant and given the historic preference cause). probable government coun- expressed by our courts for the warrant ters Howell’s appropriately affidavit process, States, see Johnson v. United 333 incorporated past personal his experience 10, 13-14, 367, 68 92 L.Ed. S.Ct. having seized from the prop- (1948), we are to determine whether the erty question in 2002 to corroborate the magistrate had a “substantial basis” for more recent anonymous tips. To some concluding probable pres cause was extent, think, we parties’ both assertions ent, Gates, 213, Illinois v. have merit. (1983). hand, On the one a warrant Fourth “[T]he requires Amendment no may direct, issue even in the absence of more.” Court, Id. The District viewing first-hand evidence. See United States v. “totality id., circumstances,” Burton, (3d Cir.2002) 288 F.3d deferring to a principle oft articulated by (noting that “direct evidence linking the this Court —that “after-the-fact scrutiny residence to activity criminal is not re should not take the form of de novo re quired to cause”); establish view,” see, e.g., United States Ninety- Jones, United States v. Two Thousand F.2d Four Twenty- Hundred (3d Cir.1993) (“While ($ 92,- Two Dollars and Fifty-Seven ideally every Cents 422.57), (3d Cir.2002) 307 F.3d affidavit would contain direct evidence (quoting linking U.S. at place be searched to the 2317) “not find that crime, the search war it is —could well established that direct rant application was devoid of evidence required is not for the issuance of cause,” notwithstanding Officer Howell’s warrant.”). a search Gates requires that a admission that nothing he did indepen court considering sufficiency of an dently corroborate caller’s agent’s affidavit look at “totality tips. conclusion, think, This we requires circumstances,” and, in employing this discussion. standard, flexible the Supreme Court has explained that the “task of the issuing

Ernie and Reginald Ritter claim magistrate simply is to practical, make a appeal on that the District Court erred in whether, common-sense concluding decision given that there existed all cause to the support circumstances magistrate the forth in judge’s set the affidavit him, issuance of a They warrant.6 before including assert ‘veracity’ the Officer Howell’s affidavit was based on ‘basis of knowledge’ of persons supplying nothing more than anony- uncorroborated hearsay information, there is a fair proba- It is 545, "well established that 883, the prevailing 330 U.S. 67 S.Ct 91 L.Ed. 1088 party (1947)). below need cross-appeal not to entitle Because the Ritters have attacked support him the judgment in his appeal favor on on the reasoning, Court's District grounds expressly rejected by achieved, the court be the they result are not barred from Lennox, low.” Swarb v. 405 U.S. revisiting 92 the cause issue here. See (1972) (White, J„ S.Ct. 31 L.Ed.2d 138 Mass. Mut. Ludwig, Ins. Co. v. 426 U.S. Life concurring) Co., (citing Walling v. Gen. Indus. (1976).

263 activity, not conduct of unlawful did edge of a evidence that contraband bility area, had any visual reconnaissance particular place.” in a found will be crime hearsay on mari- (citations information third-party 238-39, S.Ct. juana-growing operation property, omitted). words, issuing an court In other himself). warrant detective executed be rea- that it would only conclude need objects in sought-after to seek the sonable in Here, these like the officer-affiants affidavit; a designated place the Howell, an cases, receiving after Officer the evidence not determine court need call, attempt anonymous tip made no Conley, See premises. is in fact on allegations through verify the informant’s in mind that (“Keeping at 1205 F.3d But, investigation. independent further simply to issuing magistrate task of cases, Howell officers those unlike the proba- a ‘fair there is whether determine expe- previous relevant arguably did have aof or evidence contraband bility that question property rience with place’ particular in a will be found crime [re- “historical included information this uphold reviewing court is ... August previous seizure garding] the a substantial there is long as warrant question affidavit. in his 2002” that evidence probability a fair basis sufficiently experience was whether this found.”) (quoting bewill tip pre- give so as to corroborative 2317). 238,103 S.Ct. value. It could be said dictive was tenu- previous to the raid connection however, hand, the other On actual corroboration'—it in terms of ous White, v. Alabama before, the mari- months occurred seven (1990), where L.Ed.2d 301 area, grown in the stable juana being “totality of the adopted the Supreme Court gardener apprehended was person whether to determine circumstances” test premis- did not live on the apparently who reasonable provide could anonymous tip an no es, to have been appears and there Terry stop,7 for a suspicion to the or its inhab- direct connection house (1) ability officer’s an stressed two factors: previ- Officer Howell’s itants. aspects of the significant to corroborate observation, type similarity ous (2) fu predict tip’s ability tip, offense, tip current the fact that or inde corroboration Where ture events. and the surround- the house involved both an receipt of investigation after pendent area, inference logical and the ing outdoor lacking thus anonymous tip is —and author- might been gardener have that the tip goes untested value of the predictive house to inhabitants ized have is issued —courts a warrant before plausi- marijuana, point all grow the reliance subsequent found officers’ previous relationship between ble See, e.g., unreasonable. United an see how tip. We can event and (4th Wilhelm, 121-22 F.3d States tip view the magistrate could officer and Cir.1996) (reliance unreasonable because pattern of establishing identifiable stamp by ap as rubber acted magistrate activity premises. on solely based bones” affidavit proving “bare we a close Were anonymous tip); This is case. uncorroborated upon de Weaver, 1372, magistrate’s decision reviewing the 99 F.3d v. States United result. (reliance novo, reach a different (6th Cir.1996) might we unreasonable 1380 charged has Supreme Court knowl- personal had no because detective required suspicion course, demanding than level of requires rea- stop, Terry 7. A Ohio, probable U.S. Terry v. cause. suspicion, see to establish sonable (1968), 1868, 1, a less 20 L.Ed.2d 88 S.Ct. (cid:127) us, when reviewing sufficiency judicial officer, of an by policeman not a warrant, resulting affidavit and not 'to en- government agent. enforcement gage scrutiny” “after-the-fact States, Johnson United v. U.S. 13- “take[s] the form- of de novo review.” 14, 68 S.Ct. 367. Gates, 235, 103 S.Ct. 2317. magistrate’s A “determination proba- Moreover, we review for a “substantial paid ble should be great cause deference for concluding basis” cause by reviewing Spinelli courts.” [v. Unit- existed, (citation 236, id. at 103 S.Ct. 2317 States, ed 393 U.S. 89 S.Ct. omitted), which step is one removed from a (1969) 584, 21 L.Ed.2d 637 “A grudg- ]. directed inquiry cause applicable ing or negative by reviewing attitude reviewing when stops and warrantless warrants,” courts toward is inconsistent Here, searches.8 the deferential standard with the Fourth Amendment’s strong with which we view magistrate’s initial preference for pur- searches conducted probable cause tips determination warrant; suant to a “courts should not of determining scale favor mag- by invalidate interpreting [warrants] [af- istrate had a “substantial for finding basis” hypertechnical, in a fidavits] rather than probable cause existed. In so concluding, commonsense, a manner.” we are mindful of the Supreme Court’s Gates, 462 U.S. at 103 S.Ct. 2317 consistent admonitions over the course of (quoting Ventresca, and United States v. century the last half our regarding prefer- 102, 108, 109, 380 U.S. 85 S.Ct. n ence for and the nature warrants of our (1965)). L.Ed.2d 684 in reviewing task by judi- warrants issued clearly has indicated that the conclusions ,, cial . officers: of a neutral magistrate regarding probable point of the Fourth ... Amendment cause are great entitled to a deal of defer- it not that denies law enforcement the by court, ence a reviewing tempta- and the support of the usual which inferences tion to. second-guess those conclusions reasonable men draw from evidence. should be avoided. 462 U.S. at protection Its consists in requiring that 103 S.Ct. 2317. Accordingly, we find the those inferences be drawn a neutral issuance of the warrant to have prop- been magistrate detached instead of be- er. Acknowledging the to at- susceptibility ing judged by engaged the officer tack of tips when dissected de competitive enterprise often ferreting Judge novo—as Smith forcefully urges— out Any crime. assumption that evi- we note that even the issuance of the dence sufficient to support a magis- faulty warrant were under the appropriate trate’s disinterested determination to is- standard, Officer Howell’s reliance on it is sue search warrant justify will clearly subject attack, States United officers in making a search without Leon, v. warrant would reduce the Amendment (1984), L.Ed.2d 677 as Judge Smith readily to a nullity and leave people’s homes concedes. only in secure the discretion Particularity Requirement officers.... When the right of privacy reasonably yield

must to the right of Apart from requiring probable is, rule, aas cause, decided clause of the Fourth Judge questions Smith raises excellent example, re- Judge in the case Smith finds analo- garding the placed Roberson, reliance Officer gous, Howell United States 90 F.3d anonymous tips might persua- (3d Cir.1996). which we find reviewing we are conducting sive if we were novo de review deferentially for magis- substantial basis for a situation, for cause as was the for trate’s conclusion that cause existed. warrant to search ing to execute the requires unambiguously also Amendment they were able to apartment, McWebb’s describe particularly must that warrants apartment to the into both McWebb’s see searched, persons to place “the Const, right, to the as the and Garrison’s left U.S. things to be seized.” open. only It was after to both were doors requirement particularity amend. IV. entered and con- apartment was Garrison’s searches, but general only prevents any discovered that had been traband proper- whose the individual also “assures floor that the third the officers realized the lawful au- ty or seized is searched until that apartments; up two contained officer, need to his thority executing reasonably be- all of the officers point, search, power of his and the limits they searching that were McWebb’s lieved Chadwick, 433 v. United States search.” they became “As soon as apartment. 53 L.Ed.2d 97 S.Ct. fact, discon- of that the search was aware omitted). (citation (1977) 79,107 Id. at S.Ct. tinued.” Here, Supreme Court’s relying on the outset, At the the Garrison Court Garrison, the Dis- Maryland decision presents separate “the case noted that two govern- that concluded trict Court issues, concerning one constitutional dwellings on multiple discovery of ment’s warrant the other con validity of the retroactively invali- property defendants’ reasonableness of the manner cerning the essence, rendered warrant —in dated the at it was in which executed.” the start for from warrant defective us, case 1013. In the before 107 S.Ct. to be place particularize failure that the officers’ Court concluded District Maryland that agree multiple we inside defen discovery While units searched. issue, retroactively invalidated we the instant residence controls dants’ v. Garrison particularity. lack of warrant for interpre- Court’s the District disagree with police officers realized build “Once the grant defen- of that case tation and use the Court dwelling, multi-unit ing was a dants’ motion. was defec the search that holds Garrison, officers (cid:127) police In Baltimore unit(s) which failing specify tive a warrant to search and executed obtained Garrison, But, in to be searched.” were and “the of Lawrence McWebb person perform directs us to Supreme Court Park Avenue as 2036 known premises fact, rejects the In it analysis. different Id. at apartment.” third floor invalidity that of retroactive concept applied for 1013. When order for the District Court’s basis they conducted and when the warrant motion suppression defendants’ granting warrant, they instead, rea- us, pursuant to the to examine instructs only execution. there was one sonably that warrant’s believed reasonableness McWebb’s, lo- premises, apartment present circumstances Similar in the as described on the third floor cated Garrison, here, point there came a had investigation A preliminary warrant. the officers warrant when execution making undertaken, included which been hindsight [knew] the benefit “[w]ith to confirm utility company calls to the place description [the dwelling. only had one appropriate third floor than was broader searched] into two be- fact, floor was divided the mistaken the third based on it was because [dwelling on one McWebb there was occupied one apartments, lief Garrison, 480 property].” police arrived When defendants’ one Garrison. question “The floor of the build- U.S. of the third the vestibule is whether that factual mistake invalidated 3. Execution of the Warrant undoubtedly a warrant would have Although lawfully the officers embarked if completely been valid it had reflected a upon premises the search of the awith understanding accurate of the building’s cause, supported by probable did plan.” floor Id. Considering question, this there come a time when their execution Supreme nega- Court answered in the beyond permitted went what the warrant tive, emphasizing constitutionality and, thus, ran afoul of the Fourth Amend- officers’ conduct in the execution prohibition ment’s unreasonable validity of the warrant —not necessarily searches? Garrison informs issue, warrant —is the crucial and it must inquiry. this From the Court’s judged light be “in of the information case, opinion in that prin- several relevant they available to them at the time acted.” distilled, ciples can be all of which focus Id. the conduct of a reasonable officer and the emerge

Those items of evidence that reasonableness of his belief as to whether after the warrant is issued have no bear- proceeding beyond the search at issue is ing on whether or not a warrant was the four corners of the warrant. validly discovery issued. Just as the First, the officers had contraband cannot validate a warrant known, known, or should have that there issued, equally invalid when so is it clear separate were dwellings contained in the that the discovery demonstrat- of facts property pictured in “A” Attachment ing that a valid warrant ivas unneces- affidavit, they Officer Howell’s would have sarily broad does not in- retroactively obligated “been to exclude [those areas for validate validity.of the warrant. The which cause was not established] the warrant must be assessed on the scope from the requested warrant.” basis of the information that the officers 480 U.S. at 107 S.Ct. 1013. Officer disclosed, duty or had a to discover and Howell testified that the multi-unit nature disclose, issuing Magistrate. of defendants’ residence was not known to (footnote omitted) added). (emphasis prior officers to execution of the warrant. The Garrison Court thus concluded that a Second, entry mere into the building’s warrant, search “insofar itas authorized common areas was reasonable and lawful out to ambiguous turn[s] be because the officers carried a valid war will, nevertheless, in scope,” upheld authorizing entry rant upon premises. against particularity challenge if the Id. at 107 S.Ct. 1013. As discussed warrant described the structure as it was above, the warrant to search defendants’ known or should have been known to the residence was valid and it undisputed inquiry officers after reasonable under the that the warrant was directed specifically circumstances. Id. at 107 S.Ct. 1013. toward the property that officers did Therefore the suppression District Court’s Third, fact enter. once the officers knew order cannot be upheld on the basis of its or should have known the error in what proffered reasoning that the officers’ dis- they encountered versus what was author covery of multiple units within the resi- by warrant, they ized obligated were dence invalidated the warrant. Accord- either limit the search to those areas clear ingly, Garrison, as directed we must ly covered the warrant or to discontinue evaluate the officers’ in carrying conduct entirely their search. Id. at out the warrant. Here, 1013.9 notwithstanding their discov- at issue in Garrison Insofar as the warrant named opposed merely an individual (Brief at building.” Appellant of the units, not of the officers did multiple of ery 17.)10 govern- the agree. We This search. their discontinue limit or out, “It not clear from points ment itself however, result necessarily, not does apart evidence from the record what [ ] discov- evidence physical of all suppression and mini-14 marijuana-growing rooms two of the entire course during the ered discovered the house assault rifle was di- ultimate Court’s The Garrison search. that the house officers realized officers’ con- before “The salient: remains rective (Brief dwelling of multiple had units.” search [are] limits of the duct and go Again,-we agree, but would Appellant.) available as information on the based further, not certain that the we are even as principle, Id. This proceed[s].” search government to which the refers evidence recognition of “the need a along with realized the officers was viewed before honest latitude for mistakes some allow property. in a multi-unit they were dangerous are made officers that granting defendants’ order District Court’s making arrests process difficult any not include suppression motion does Garrison, warrants,” executing search on which we could make findings factual (footnote omit- on Nor does appeal. a determination such determining us in ted), guide must is what of the cold record elucidate reading our awry. went the execution if and when when, during happened, and exactly what argues that government That of the which the execution warrant. before the realiza discovered any evidence finds that members the District Court defendants’ that residence tion officers or entry team observed in shared residence'— n be units should not multiple comprised areas of defendants’ common that “once but concedes the residence suppressed they concluded that before mul multiple apartments— the house had actually comprised discovered officers evidence, any, should units, longer what they could no will dwelling dictate tiple cannot discern We avoid justify suppression.11 their search rely on the warrant Nevertheless, address, government states that it clearly facts of our case listing Garrison, argue right Su- on remand that preserving its Under the facts differ. officers, depend- recognized requirement, preme exception some discovered, will circumstances, error is ing upon when the justified exigent such as (which as- their search to limit have either individual search defendants' continued is noticed warrant’s mistake before sumes 17.) (Brief Appellant apartments. area) entry an unrelated discontinue into (assuming, as was the case search addition, although entry teams’ Garrison, already have mistaken- that officers deter- sweep premises was to function premises outside ly search undertaken present, any persons were mine whether warrant). scope In the instant thorough conduct rather than case, multiple defendants where there are contraband, certainly were members team prop- search a generalized probable cause to plain For view. to evidence in not oblivious specific individual's erty opposed to weapons seized from Er- example, two were clearly delin- lines are not so apartment, the closet, apartment from the nie Ritter’s —one Luckett, Ill.App.3d People v. See eated. suppressed, and one clearly be which should 652 N.E.2d 210 Ill.Dec. hanging laying bed or either (1995) ("[T]he require- probable cause plain- might bedpost, have been which virtually meaning- would rendered ment vantage a lawful ly to officers from visible legally liv- search several police could less if necessarily require point thus would not showing that one of the ing upon a mere units identified, units, suppression. specifically contained (citing sought.”) United States contraband Cir.1982)). Busk, (3d 693 F.2d 28 record, such determinative facts from the cer Howell testified that “there was a trail and we will REMAND to the District leading from the front of Court for fact-finding further in this re- oven,” but, the residence to the when coun- gard. sel him if asked that trail what was led officers to look in the just money, broiler for do supply “we not testimony reiterated, government “Again, Officer Howell I failed to didn’t during suppression it, elicit hearing,” agent that did would be Myers, United States v. 308 F.3d 255 better, be a better one ques- to ask these (3d Cir.2002), government should not tions.” We will REMAND for the District be afforded a second opportunity carry Court to make findings and conclu- render its burden that the challenged evidence sions on this issue based on the evidence suppressed. should not be Accordingly, presently in the record and Officer How- government must live with its decision ell’s credibility. offer one witness—Officer How- Second, the District Court ell'—-tomake a record of May the events of agreed with defendant Dale Ritter that the 8, 2003. testimony, Based on his and that person discovered on his as a witness, Peterson, of defendants’ Andre result of a patdown Court, suppressed. should be the District it assuming can do so that, The Court Ybarra v. it, from the reasoned under already evidence before must Illinois, make factual findings 85, 92-93, consonant with both U.S.

the Supreme Court’s decision Garrison (1979), the officers needed opinion. and this Should the District suspicion reasonable that Dale Ritter was Court need further elucidation or clarifica- armed dangerous, of gov which the tion, however, in light analysis of our Ybarra, proof. ernment offered no po given time, passage may it on re- officers, lice who had obtained a warrant to mand request that previous- the witnesses search a tavern and its owner for evidence ly testify again called once in order for the drugs, announced upon entering the tav Court to requisite make the findings. ern that all present subject would be to a “cursory weapons.” search for at Sup- Other Evidence Seized and 88, 100 S.Ct. 338. One of the officers pressed frisked the defendant and felt “a cigarette We turn now to the additional conclu- pack objects it”; with after frisking sions of law by made the District Court patrons, other the officer returned to regarding defendant Dale Ritter’s claims defendant, cigarette removed the pack 1) scope of the search warrant from defendant’s pocket and found it to was exceeded the government’s search contain heroin. Id. 88-89,100 S.Ct. 338. 2) of his oven and broiler and he should In reviewing the constitutionality of the patted have been down absent reason- patdown, defendant’s suspicion able that he was armed and dan- explained: gerous. claim, As to the first the District Terry case exception created an Court determined that the issue was moot requirement cause, based on its conclusion that the entire exception whose “narrow scope” this Garrison, search was unlawful. Under Court “has been careful to however, maintain.” only that evidence seized after Under that officers doctrine a law have enforcement discovered the multi-unit officer, premises character of the for his own protection should sup- safe- pressed. Here, again, ty, may we need the patdown Dis- conduct a weap- to find trict Court to make findings. factual Offi- ons that he reasonably believes or sus- argues that evi- Finally, government possession are then pects from “the stable” and “else- in dence seized Nothing has accosted. person he lawful notwith- grounds” where on the a gen- to allow can be understood Terry standing discovery multiple units weapons” “cursory search for eralized (Brief Appellant inside the house. indeed, any- for or, any search whatever 17.) Because the record is devoid de- scope” The “narrow weapons. thing but concerning discovery tails of this addi- exception permit does not Terry evidence, will REMAND for fur- tional we on less than reason- weapons frisk District fact-finding ther Court. directed at the suspicion or able belief frisked, though even that person III. Conclusion premises where to be on person happens in undertaken reliance search taking is narcotics search an authorized was reasonable. Not- the warrant issued place. discovery of a withstanding subsequent (footnote 93-94, 100 S.Ct. 338 Id. at concerning in the warrant factual mistake omitted).12 suppression At citation number, dwellings com- of individual case, testified Office Howell hearing in this residence, Maryland under prised on the are encountered people that when Garrison, the warrant was not defective dur- to be searched property premises particularity lack of for a search war- executing ing the course REMAND this case we will “pad- rant, they are “secured” usually fact-finding relating gov- further to the for weapons” primarily for down [sic] ded warrant. Al- execution of the ernment’s safety. Though he officers’ ensure law enforcement though it is clear that Dale Ritter was in area where limit or discontinue their officers did not down, which Officer patted apparently apart- of defendants’ individual “more towards the described as Howell require, would certain ments as Garrison front,” that he assumed testified Howell a result of officers’ evidence observed as for this patted been down Dale Ritter had may be ad- entry premises onto the valid Ybarra, “cursory this reason. Under can make District Court missible clearly permit- is not weapons” search for before findings as to evidence observed suspicion or a reasonable belief ted absent apartments entry into individual —whether armed, encountered that an individual plain pursuant areas or common There- 100 S.Ct. 338. had rea- view doctrine—while fore, on Dale Rit- evidence discovered was in com- that the search sonable belief See suppressed. should be person ter’s the warrant. pliance with (3d F.3d Groody, Doe v. also Cir.2004) (“A required also premis- fact-finding search warrant for Additional discovery of contraband both the a license to search to resolve does not constitute es inside.”). stable and the residence —in the AFFIRM this outside everyone We will Rit- and Dale grounds,” “elsewhere District Court’s order. aspect of the be "compact” to be searched can areas concluding, Supreme also ent on In so suspi- argu- drugs reasonable rejected government’s alternative based on searched that, governmental drug interest in based on with they ment are somehow connected cion controlling dangerous, “effectively Ybarra, traffic in U.S. 100 S.Ct. trafficking. Terry drugs,” "reasonable belief Re, hard v. Di (citing United States 343-44 applica- suspicion” be made standard should 581, 583-587, 92 L.Ed. evidence-gathering function of aid the ble "to (1948)). pres- persons warrant” such the search ter’s claim that evidence seized from anonymous tip i.e., his bones” tipa consist- — oven and suppressed. broiler should be ing only conclusory allegations illegal- ity- majority misapplies anony- —-the We will AFFIRM the District Court’s tip jurisprudence mous determination that the discover- Court, Court and this and misconceives the ed on Dale person pursuant Ritter’s to a role plays corroboration evaluating such patdown should suppressed under tips. Both of these factors weigh strongly Ybarra v. Illinois.

against magistrate’s probable cause SMITH, Judge, dissenting Circuit determination.

part and concurring judgment. Staleness Because I believe even under a majority does not confront the fact review, deferential standard of magis- the time of the first tip, judge’s probable trate cause determination Howell’s information from August stand, should not I dissent from por- marijuana eradication effort had aged tion majority’s opinion validating the eight months. The staleness of this infor- issuance of the warrant. be- mation renders it of probative minimal val- cause under the rule of United States v. ue. Leon reasonably Officer Howell could rely It is well-established that staleness is a warrant, on the invalid I reach the same contextual inquiry and simply not a matter majority: result as the they Before discov- measuring of age of information con ered that building to be searched con- tained an affidavit. United States v. multiple apartments, tained the conduct of Harvey, (3d Cir.1993) 2 F.3d 1322 and the other warrant-executing Howell (noting that speed with which informa officers did not violate the Fourth Amend- tion supporting a warrant becomes stale ment. varies with the nature of the crime and the majority, Unlike the I do not view.this type evidence); United States v. of case,” as a “close where our deferential Williams, (10th 897 F.2d 1039 Cir. review “tips the scale in favor” of validat- 1990). By token, the same im staleness ing magistrate’s finding of plies no frontier between full-potency fresh cause. marginal This is not a case of information and worthlessly stale. probable cause that governed by should be With varying by context, half-lifes the reli a preference for warrants. See United ability of dissipates information over time Ventresca, States v. 85 point that such information must be (1965). Rather, L.Ed.2d 684 disregarded. instance, For information precedent under the regarding alleged burglar’s possession Court, and this I am doubtful that readily fenced music CDs will dissipate supports affidavit even finding that rea- than, faster say, an alleged burglar’s pos existed, suspicion sonable much less proba- session of a stolen Cezanne view, painting that ble cause. In my the majority’s may suspected take the years thief analysis in to un concluding that the warrant Further, load. was we have properly recognized, quite issued is flawed in two ways. First, sensibly, information majority does not regarding discount for re peated staleness unlawful the information conduct contained in over an extended period Howell’s May suggests regarding offense,” affidavit “continuing August Second, project. eradication thus is more durable than information of and more fundamentally, by crediting Urban, discrete offenses. United States v. supposed Howell’s (3d corroboration of Cir.2005) (“[W]here a “bare 404 F.3d it has never been discovered. How- support probable where adduced facts ever, pattern ongo- contains no infor- a course or Howell’s affidavit describe cause criminality, passage marijuana repeatedly continuous was ing and mation that facts occurrence location, of time between the it is grown equally at the affidavit and the submis- forth set not posit people again will sensible signifi- the affidavit itself loses sion already in a location cultivate Zimmerman, United States cance.”); authorities. Because there was known to Cir.2002). (3d 426, 434 277 F.3d here, I believe the pattern illegality no Here, August Howell used information from the eradi- the information weak anonymous tip was time corroborate cation effort had become stale matter,13 and the nature of an initial May Howell included it his 2003 affida- type of evidence indicates crime and vit. susceptible to becom- information was Second, no connection be- ing stale. grow operations and the tween the outdoor First, marijuana growing on Howell saw August even if main house made By occasion. defini- property on one one were to infer such connection then tion, a “con- sighting cannot constitute one existed, Howell made no effort to deter- that the information tinuing offense” such continuity mine whether there was a relatively at a slow become stale would ownership occupancy property. Zimmerman, Compare 277 F.3d rate. majority proper- terms “Ritters’ What the viewing por- of a (concluding that one ty,” ante enough n. 1-—a fair characteriza- clip ten months before nographic video May-2003 considering in the Ritters’ tion stale), with Ur- the information rendered ownership if of the com- residency ban, that a (determining 404 F.3d at thing no such in pound may have been — extortion, and years-long pattern graft of simply no inves- August 2002. There was from of which was Octo- the last evidence (1) who, anyone, if lived in the tigation of 1999, a at the time of was not stale ber it) (or who owned at the time building Harvey, affidavit), and February 2000 (2) eradication; marijuana August the (concluding that information F.3d at 1323 occupants the or owners whether por- fifteen child concerning receipt the August the building were connected to mailings period over a from two nography (3) marijuana or growing; outdoor appli- the warrant to fifteen months before any changes occupancy in or own- whether stale). The Au- was not cation was made August 2002 ership had occurred between grow an outdoor discovery gust Moreover, the apart from May and 2003. event, and the was a discrete operation Howell had no evidence anonymous tips, sure, destroyed. To be one

marijuana was housed an indoor building that the ever marijuana more like- that may speculate Any con- marijuana growing operation. in the same location ly regrown grow opera- in nection between the outdoor place found than where it has been notes, and the field Both the horse stables majority saw the area made. the Howell 13. As being as ap- in Howell’s affidavit helicopter, are described question one time from in Where, house. if submitting “at rear” of the main eight proximately months before all, appear the aerial by in the roofless stables person interviewed his affidavit. The one affidavit) (“Attachment A” to the photograph ground August in the officers best, cultivator, between At the connection living is unknown. marijuana denied in house, grow operation and marijuana the outdoor between the main and no connection imputed, nearby building be and growing must building marijuana and the August 2002. tenuous even in ever thus was or in the field was roofless horse stables category, must In the former the cases allow grow tion and an indoor room be Yet, majority transports tip’s pre- that corroboration of the imputed. eight-month target’s across the interim the connec- future regarding dictions they necessarily tion draw between the tip’s lawful actions can bolster the credit- activity suspected illicit and that ability, may outdoor and create the reasonable in August to have occurred indoors suspicion or cause needed to view, my the connection between the a seizure and search of the tar- support and that outdoor cultivation get property and his for evidence of ille- majority presumes which the to have oc- gal activity. The rationale of these deci- curred indoors was weak and was anonymous tip proves sions is that if the worthlessly by May People are stale target’s predicted correct about the licit changes hands. property mobile. Real “A, B, C,” tip’s pre- actions then the target engaged diction will be Anonymous Tips Corroboration activity “D” illegal is more creditable. In Illinois v. 462 U.S. 2317; Spinelli 103 S.Ct. see (1983), S.Ct. 2317 States, United that, tips from known in- stressed unlike (1969) (White, J., provided formants who have reliable infor- (“[Bjecause concurring) an informant past, tips mation from identified right things, about some he is more charged filing citizens who could be with - facts, probably right usually about other faulty, report tip proved false facts.”). critical, po- unverified veracity reliability anonymous tip- anonymous lice tip’s corroboration unknown, “by hypothesis largely sters is details, teach, innocent the cases bolsters Id. at 103 S.Ct, unknowable.” veracity reliability tip, 2317. Gates also observed the same suggests tipster well as is a deficiency regarding the means obtains target, trusted intimate of the and thus which an informant came may privy to inside- information con- tip, in a what information contained cerning target’s alleged lawbreaking. the Court termed the “basis of knowl- 246, anonymous tip the edge.” only In Where contains Id. at 103 S.Ct. 2317. allegations “bare illegality, bones” of how- expounding “veracity,” “reliability,” on the ever, police the have no basis on which to knowledge” inquiries, and “basis of Gates creditability tip’s illegal evaluate the of the progeny distinguish and its between anon- ymous by corroborating predic- content the tips predic- tip’s that contain detailed target’s tions of the target’s tions of the future activities from future innocent ac- merely wrongdo- conclusory anonymous tips those that assert criminal tions. Such do ing occurring past or at the of not amount to suspicion, time reasonable much cause, tip. the police may less and Gates, Supreme incorporated pendent necessary crediting 14. In Court and elements to reasoning Aguilar Rather, of its decisions in v. tips. affirming Aguilar in and Texas, 378 U.S. Spinelli tip's criteria as relevant indicia of a (1964), Spinelli L.Ed.2d 723 and United value, inquiry the Court established that the States, 21 L.Ed.2d issues, treat should these criteria as related (1969), totality-of-the-circum into a deficiency may such that "a in one be com- approach evaluating stances informants' for, pensated determining in overall relia- tips. stovepipe approach Gates eschewed a bility tip, by strong showing of a as to the "veracity,” that treats an informant's "relia other, reliability.” some other indicia of bility,” knowledge” and "basis of —criteria Gates, 462 U.S. at 103 S.Ct. 2317. developed Aguilar Spinelli in and inde- —as verified, issued, so when the warrant them.15 As be or search on a seizure base anony- predictive tip valué of the was nil. bones” tips, “bare predictive with investigation, trigger can tip mous Anonymous Tip Predictive Cases tip’s placing surveillance

such as suspi- may independent reveal target, empha- in Gates police can activity upon which the cious value of the independent police sized the illegality nothing but the then act. With investigation corroborating the details of however, con- investigation of verify, predicted the Gateses’ narcotics run as suspi- must reveal elusory allegations itself anonymous By letter. he had time activity independently sufficient cious affidavit the magistrate, submitted his a seizure and search. support had the officer Gates corroborated sev- predictions eral of the contained Here, anonymous tips only contained letter, including flight Lance from Gates’ the resi- allegations illegality bare —that Beach, Florida, Chicago to West Palm his culti- building of the identified were dents there, collecting family car and his locations marijuana in two outdoor vating quick departure driving back north. rooms, that an grow in two indoor 103 S.Ct. 2817. carrying the house was seen occupant of anonymous correctly That the letter had building. marijuana plants inside facts, predicted these innocent the Court no of innocent tips predictions contained reasoned, reliability increased activity Howell could corroborate bol- trunk of tipster’s prediction that the reliability; there was tip’s ster the overall marijuana. car would contain Id. except for the ille- nothing to corroborate Yet, majority, rely- Similarly, knowledge the basis activity gal itself. anonymous letter writer ing “predictive inapposite was.unassessable caselaw, details were corroborated. As erroneously concludes that before the tip” criteria, distinguished to this be- viewing of Gates Howell’s outdoor “easily obtained facts and conditions building eight months tween growing near anony- existing tip,” at the time of the which are earlier somehow “corroborated” predicted future events approach, deprecated, I with this tip. disagree mous target of the tip’s an intimate unprecedented, I believe it is because know, knowledge for would about which corroboration prior it Howell’s substitutes investigation can by police innocent details any testing reliability and basis tip’s that the con- probability bolster the knowledge tipster and her informa- concerning illegality is accurate. a fundamental tent tion. This strikes me as 244-46, 2317. That several of implica- at 103 S.Ct. potentially dangerous error with of the un- analyzed predictions the letter’s Gateses’ Supreme The Court has tions. times, plans proved true increased in each usual travel anonymous tips three and probability that the letter contained emphasized tip’s case the Court has only to the a information known Gateses accuracy predicting in future events as theirs, or a trusted intimate of credibility. themselves assessing means of its overall mari- namely, they transporting that were nothing that could tip predicted here 1375, (2000). 254 suggested po- 146 L.Ed.2d Supreme has that 15. Court here, may rely anonymous tip anonymous tips regarding to conduct lice on an as target tip's and search on the special seizure not constitute such narcotics do danger alleged great, as a bomb such circumstance. 273-74, J.L., 266, threat. Florida v. 529 U.S. 274 246, Dobey’s it

juana begin driving in the trunk of their car. Id. at ter toward Noting predicted. 103 S.Ct. 2317. the substantial Motel within the time frame difficult-to-predict corroboration of details Id. at 2412. As the vehicle S.Ct. letter, hotel, that observing contained in the police neared the effected a Ter- suggestive car, the Gateses’ actions were “as of ry stop of the and a of consent search run, as it of an prearranged drug [was] attache case found nar- inside revealed ordinary trip,” vacation the Court held 326,110 cotics. Id. at 2412. S.Ct. . . magistrate proper that the had a basis for Applying approach the same in the rea- 243-46, issuing the warrant. Id. at suspicion context it in sonable did S.Ct. analysis, cause Gates’ Court majori- highlights illogic of the Gates again importance personal stressed the of ty’s reliance here on Howell’s ex ante “cor- by in corroborating observations officers anonymous tip justify roboration” of the predictions some of lawful con- behavior the issuance of the search warrant: The anonymous tip tained to establish majority at face tip credits the reliability tip’s information con- value its cause calculus without cerning target’s alleged illegal activi- requiring veracity, reliability, that its 331-32, ties. Id. at 2412 (noting S.Ct. knowledge basis of all. In- yetted be at that proposition Gates credited “the that deed, Gates, quoting majority mentions because an informant is right shown knowledge” “basis of as a factor in a mag- things, probably right about some he is “practical, proba- istrate’s common-sense” other facts that in- alleged, about he has decision, yet ble cause never returns to cluding object the claim that the tip apply it to the facts this case. engaged activity,” in criminal and con- cluding that independent “the corrobora- White, Alabama police tion significant aspects (1990), S.Ct. predictions imparted the informer’s some applied anonymous tip its degree reliability allega- other analysis from suspi Gates a reasonable caller”). Likewise, tions made White anonymous tip cion context. The in White teaching iterated that, Gates’ confir- time, given indicated at a Vanessa mation a tip’s hard-to-predict details Plymouth White would drive a brown sta helps to establish the “insider” basis of wagon tion with a taillight broken from her informant’s apartment knowledge. Id. at Dobey’s on a direct route to (“When Motel, significant S.Ct. posses aspects White would be in verified, predictions sion of a the caller’s containing brown attache case were there and heroin. was reason to believe not 2412. Following up caller was honest but tip, the also that he was well informed, police located the wagon station at the at least well enough justify given, address and observed a woman stop.”).16 en- The Court considered White Also, White, again anonymous phone as it did the Court tip. 496 U.S. at distinguished "easily view, between obtained facts 110 S.Ct. 2412. In the Court's existing tip” important conditions the time of the ability "[w]hat was was the caller’s behavior, parties easily and "future predict actions of third not future [White’s] because White, predicted.” 496 U.S. at special it demonstrated inside information —a Gates, (quoting familiarity 462 U.S. at respondent's with affairs.” Id. 2317). Here, anyone S.Ct. anonymous tips any Court noted that the pre- lacked whatsoever, "predicted” wagon could have that the station dictive information the corrobo- parked given was at a augmented location because it was ration of which could have the presumably existing a condition tips’ creditability. at the time of case,” finding. majority that “under the trate’s then “close but frames to be a anony- the circumstances the totality question as Au- here whether Howell’s corroborated, exhibited suffi- tip, mous as gust experience sufficiently “was cor- justify the reliability cient indicia give tip predictive roborative so as to Id. stop of car.”17 investigatory [White’s] value.” Illustrating the difference between majority The fundamental error suspicion

probable cause and reasonable is that it fails to recognize makes standards, tip at White noted absolutely nothing “predictive” there is detailed, was not as and the corrobo- issue anonymous tip about the in this ease to Gates, thorough, ration was not as as corroborate, as that term is understood demanding the less reasonable but the caselaw. Because the of the basis of the suspicion standard lowers sum tipster’s knowledge was not and could not quality and of the information quantity likely tested to show that she was in- Id. at that must be established. insider, veracity deed an and because the Gates, Also, unlike in White’s S.Ct. reliability tip’s and substance was independently predicted activities were (i.e., not and could not be corroborated it a Though was borderline suspicious. “A, B, there was no innocent prediction case, concluded that the police the Court that, corroborated, if provide C” would suspicion necessary to had the reasonable a substantial basis to that predic- conclude stop. effect the traffic illegal activity tion “D” of was also accu- Here, majority notes that the Su- rate), magistrate permitted was not that an preme Court White stressed rely anonymous tip probable on the in its ability tip, to corroborate a officer’s view, my cause calculus.18 reference to ability, tip’s predictive are the two magistrate’s duty “practical, to make important most considerations the total- decisions,” commonsense 462 U.S. ity inquiry circumstances used to refuge no S.Ct. offers anonymous tip determine whether an could legal error evident here. See United necessary provide suspicion the reasonable Leon, 897, 915, 104 States v. support Terry stop. Despite observ- (1984) (“Even requires a ing suspicion that reasonable application supported quantum proof lesser than the affidavit, than a a re- more ‘bare bones’ here, noting despite cause standard that, viewing may properly court conclude predictive tip that “the value of the [went] issued, notwithstanding magis- the deference that untested” before the warrant deserve, majority upset magis- still refuses to trates the warrant was invalid predictive anony suggesting predicted government cites a the hidden recess 17. The case, Padro, short, aspects tip tip. 52 F.3d 124. In several mous United States Id. at (6th Cir.1995), tip proposition the informant’s were verified before the for the that a search, proba- may thus the Padro court held that law enforcement officer use information anony ble cause existed to search for the narcotics already possesses to he corroborate being anonymous tipster alleged were tip, justify requiring mous and thus a search transported. Tellingly, cause. the Sixth Circuit in specifically Padro noted that before the search notes, place majority took the officer had corroborated “We can see how an 18. The regarding magistrate tip predictions the vehicle could view the informant's officer and route, activity timing, occupants. establishing pattern of used and its an identifiable Leon, Moreover, stop, premises.” during I submit that under panel infra, protruding Officer Howell is allowed officer had seen armrest discussed view, mistakes, magistrate plain but the is not. and electronic release hook in such gun nor plained how he knew about magistrate’s probable-cause because improper analy- any believing an for he had supplied determination reflected basis totality of circum- of Id. “If was a sis inside information.” White ”). anonymous tip is .... stances Once reliability anonymous close case on the discredited, that is left of the affidavit is all concluded, one sure- tips,” the Court “this and eradication of out- sighting Howell’s ly falls on the other side of the line.” Id. marijuana “at the rear” of the build- door White, repeating that like J.L. It bears before, months and this is ing eight case, suspicion a not a was reasonable nearly enough support probable cause case as here.19 a issuance of war- cause standard for the view, my the facts of this case are rant. v. analogous to those United States (3d Cir.1996) (Beck- Roberson, 90 F.3d 75 Tip Anonymous “Bare Bones” Cases JJ.). Lewis, er, J., joined by Nygaard and J.L., 266, 120 S.Ct. Florida There, anticipated Supreme this Court (2000), an 146 L.Ed.2d 254 involved concluding Court’s decision J.L. young that a black male anonymous tip anonymous tip that an uncorroborated standing at a wearing plaid a shirt and readily contains information observa- carrying a con- particular stop bus was tip was made does not ble at the time the weapon in violation of Florida law. cealed justify Terry stop. a Id. at 80. The Ro- Acting Id. at 120 S.Ct. 1375. on this tip that an individual identified berson was the tar- tip, police skeletal identified build, race, clothing, his and location tip Terry stop- and conducted a get selling drugs was on a corner known to gun. him a Id. and-frisk of that revealed spot” a narcotic police as “hot sales.20 White, exclusively oh a Relying almost Though Id. at 75-76. brief surveillance unanimous invalidated the Search. Court suspicious activity by revealed no 1375. Unlike the individual, police identified nonethe- post-tip corroboration essential Terry stop-and-frisk less conducted a decision, '“anonymous call con- White tip’s target, narcotics. discovered no cerning provided predictive J.L. infor- Id. at 76. held that suspi- We reasonable police mation and therefore left the with- lacking anonymous cion where a bare out a means to test the informant’s tip illegal activity only readily contains knowledge credibility.” Id. at i.e., apparent tip does independent cor- 120 S.Ct. 1375. Absent information — that, predictive not contain information roboration, impermissibly relied corroborated, unknown, suggest would the source is report on the “bare of an unac- target informant who neither ex- a intimate of the countable reliable —and Indeed, suggested anonymous tip lacking has indicia relia- known, tip repeat a that an unverified from bility justify stop-and-frisk does not under informant alone does not create Terry). Williams, cause. Adams v. (1972). spot” I view the “hot characterization in required verification to credit an weight approximately equal Roberson tip necessarily greater. Compare id. at totality-of-the-circumstances analysis in the 146-47, (holding tip 92 S.Ct. 1921 from majority the connection the makes between provided a known informant who had reliable marijuana plots “at the outdoor eradicated past sup information in the sufficient August the rear” of the main house in port Terry stop-and-frisk gun), for a with grow alleged operations and the indoor J.L., (distin 529 U.S. at 120 S.Ct. 1375 tip eight to have existed months later. guishing concluding Adams and White and affidavit, suspi- majority do not themselves observe Howell’s police guts the To cious behavior. Id. at 80. hold other- honor, warrant it requirement purports to reasoned, wise, subject anyone we would recognize and fails to the status tradition- “say-so anony- to a on the of an ally accorded the home in Fourth Amend- rival, in- or misinformed prankster, mous jurisprudence. ment 21 Id. at 80-81. dividual.” Summary major anything, distinguishing If against

features of Roberson cut the ma By failing distinguish pre- between jority’s magistrate validation of anonymous tips dictive and bare bones judge’s finding of cause here. probable anonymous tips, majority misconceives First, merely Roberson involved reason purpose of corroborating anonymous suspicion, able cause. The tips. purpose verity is to test the of majority’s magistrate’s validation of the information, the tipster and his not the finding cause threatens to blur knowledge of the officer who receives the the distinction between the two standards tip and submits the affidavit to the magis- by drawing what is needed to establish policy trate. The rationale for the distinc- probable cause toward lesser stan readily Except tion is understood: in cases Second, recently dard. as tip “great where the involves danger,” repeated Court has that “the threat, such as a bomb the Fourth Amend- a firm Fourth Amendment ‘draws line at prohibits police ment from effecting a sei- Kyllo the entrance of the house.’” anonymous zure and search based on re- States, 27, 39, 121 United S.Ct. J.L., ports illegal activity.22 of See (2001) (quoting Pay 150 L.Ed.2d 94 at (refusing U.S. 120 S.Ct. 1375 York, ton v. U.S. New recognize weapon exception an automatic (1980)); see S.Ct. “[sjuch reliability analysis because (“One’s Zimmerman, 277 F.3d at 431 exception any an would person enable sacrosanct, gov home is and unreasonable seeking to harass another to set in motion ernment intrusion into the home is ‘the intrusive, embarrassing police an search of against wording chief evil which the targeted person simply by placing an ”) (quoting Fourth Amendment is directed’ falsely reporting call the tar- 1371). Payton, 445 get’s carriage gun”). unlawful of a By approving magistrate’s probable flimsy words, finding showing constitutionally cause on the of other it is unrea- warrant, however, panel, 21. As noted the Roberson istrate issued the he had placed tip’s post-tip qualifying tip’s could have surveillance no indicia over- reliability. tip ultimately target proved would That the on the chance that he exhibit all suspicious justify Terrystop. accurate does not matter. behavior to opportunity 88 S.Ct. 1868. The same here, presented yet opted majority's approach Howell not to 22. The mistaken raises compound any investiga- spectre every visit the or conduct residence that has been seeking illegal activity prior tion before a warrant. Deed and site recent utility being anonymous tip away searches could have determined conti- months an from nuity changes ownership occupancy the issuance of a search warrant. Consistent eight post-tip majority's reasoning, magistrate across the months. A short visit with the presumably validly would have the outdoor a search where an revealed could issue plots marijuana, justifying anony- a warrant affidavit asserts combination entry activity property. investigation tip illegal onto in a build- Further mous certain may produced ing showing or surveillance Howell have with a database “hit” that the properly supportive illegality information of a search address had been the site of similar building. mag- past eight warrant for the At the time the months. probable cause find turning magistrates’ rely on untested alle- police to sonable scrutiny findings, these unwilling ings to after close who are by individuals gations rely to themselves; danger thereby of mischief induce officers reveal affirmed the exceptions, Gates simply great. too warrant is long as the deferential standard “so v. of United States Exception Faith Good ... a basis for magistrate had ‘substantial Leon uncover concluding]’ that a search would proba- magistrates’ to deference Gates’ Fourth wrongdoing, evidence premised on ble cause determinations Gates, requires no more.” Amendment to war- pursuant that searches the notion 236, (quoting 2317 462 U.S. at 103 S.Ct. warrantless to preferable rants are 271, States, 257, v. 362 U.S. Jones United exceptions to based on searches (1960)). 725, 80 S.Ct. require- Amendment’s Fourth in Leon established 236, 103 S.Ct. 462 U.S. at ment. exception faith to the exclu- good a broad pres- that the observed 2317. The Court the introduction of sionary rule that allows “reduces during a a search ence of warrant an executes a search evidence when officer po- or intrusive of unlawful perception found in reliance on a warrant reasonable conduct, assuring the by individual lice by unsupported to have been on review or seized of is searched property whose at 104 probable- cause.23 Id. offi- authority executing the lawful appellate Leon thus enables courts search, cer, and the limits of his need to magistrates on the contours of to instruct (citation omit- power to search.” his requirement without probable cause ted). purpose of Relatedly, primary from discouraging conscientious officers unlawful exclusionary rule is to deter warrants, seeking pre- and it does so while Calandra, conduct, States v. police United criminal serving valuable evidence of 38 L.Ed.2d 414 U.S. id.; Zimmerman, 277 wrongdoing. See (1974), weakly a purpose F.3d at 436. all, served, by after-the-fact severe scrutiny magistrates’ probable cause de- well-designed for a case such as Leon is Leon, States v. terminations. United one, failed to magistrate this where the 897, 919-20, 104 S.Ct. aspect an of Fourth Amend- comprehend (1984). L.Ed.2d 677 synthe- ment'jurisprudence requiring cases, deficiency a that no discourage from sis several

Rather than officers to expected officer could have been seeking prospect warrants with the re Indeed, excluding by recognize, question. over much less viewing courts evidence recognized upholding the evidence not Court has four situations tion exclusion of This withstanding presence apply, of a warrant in in which Leon does not but these are .the unparticularized general applicability of the minor limitations to the volves use of rule, apply purport to allow officers to and none here. See United States warrants that Williams, (3d Cir.1993) (quot explain and for what 3 F.3d search first and where Leon, ing they looking States v. were later. admonition United 92,422.57, (3d case, ordinary Cir. $ S.Ct. 3405: ."In the 307 F.3d 148-49 2002). employing expected question cannot be tire The last limitation- officer determination.”). good "applies magistrate's probable exception cause Leon’s faith which, although Two limitations to the Leon rule involve mis those rare circumstances conduct, writing magistrate by police effectively neutral found that there is either has cause, by submitting lay executing their own warrants deliber officer affidavit, by reasonably ately recklessly warrant could not believe that the or false or Zimmerman, magistrate abandoning magistrate his neutral role was correct.” J., (Alito, dissenting). teaming Id. A situa at 440 with the officers. third F.3d reviewing exception Leon invites courts address last Leon recounted in the mar- questions novel cause before gin, this is not a circumstance which an turning good exception analy- faith officer reasonably could not believe the sis: magistrate’s probable cause determination

If was correct. particular the resolution of a The staleness and corrobora- question Fourth Amendment tion issues either unrecognized neces- went sary guide misapplied by future action law were magistrate, magistrates, Court, enforcement officers and District my and colleagues two nothing prevent reviewing will majority. factors, courts In light of these it from deciding question before would be unrealistic to conclude that Offi- turning good-faith issue. In- cer Howell should recognized, ques- have deed, frequently it will be difficult to tioned, correctly applied the nuances determine whether the officers acted of staleness and tip corrobora- reasonably resolving without view, my tion doctrine. magis- Fourth Amendment issue. Even if trate’s finding cause should be question the Fourth Amendment rejected, and the good excep- Leon faith not one of broad import, reviewing applied tion to Howell’s reliance on the in particular courts could decide cases invalid warrant. magistrates under their supervi-

sion need to informed of er- their

rors and good so evaluate the officers’ finding

faith after violation. ,104 Leon, 3405; 468 U.S. at see CHARLESTON AREA MEDICAL 92,422.57, United States v. 307 F.3d $ CENTER, INCORPORATED, (3d Cir.2002). Plaintiff-Appellee, above,- For the reasons articulated How- adequately support ell’s affidavit did not St. Paul Fire Marine & Insurance magistrate judge’s probable cause de- Company, Intervenor/Plaintiff, Leon, termination. under How- justified relying ell was on the invalid organizing

warrant in the execution of the PARKE-DAVIS, a division of Warner good search.24 No limitation to Leon’s Lambert; Pfizer, Incorporated, its (cid:127) applies. faith rule no hint There is by merger, Defendants-Ap successor duty misconduct or abdication of pellants, part magistrate. of Howell or the deficiency particularity regarding Danny Rader, MD; Miles, RN; A. Terri multiple units of the building ap- did not Doe, MD; Doe, R.N.; warrant; pear on the face of the Jane this defi- John/Jane Doe, Pharmacist; ciency Maryland was of the v. Garrison John/Jane John/ Doe, Pharmacy Technician; variety, majority’s and the Jane discussion Doe, Agency/Corporation, purposes Garrison for the John Third remand is thorough join Party I Regarding it. Defendants. explained by majority, Maryland apartments.

24. As multiple point, tained At this v. Garrison however, issue addressed on remand legally believe I the officers were what, any, will turn on contraband Howell poised despite to enforce the warrant the fact warrant-executing and the officers discovered invalidly that it was issued. they building before realized that con-

Case Details

Case Name: United States of America Government of the Virgin Islands v. Ernie Ritter Reggy Ritter Dale Ritter

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 3, 2005

Citation: 416 F.3d 256

Docket Number: 04-3489

Court Abbreviation: 3rd Cir.