United States v. Russell Bonner, United States of America v. Wayne Bonner

TORRUELLA, (see 1); in Before BOWNES and contained the affidavit footnote CARTER,* address, however, Judges, not includ- Circuit and District the exact warrants, Upon Judge. ed. the issuance of telephoned the “case agent promptly DEA TORRUELLA, Judge. Circuit agent” charge investigation, who premises appeal judg- had conducted surveillance This is a consolidated from question on at least ten occasions. entered in the United States District ments waiting with other case Court for the District Massachusetts * Maine, sitting by property designation. and in the AMC and structures on Of the District of there vehicle described above and below Hornet substances, wit, blue, is located controlled [sic] properties to be searched are a “The precursor phenylacetone amphetamine and style ranch house with white trim wood-frame chemicals, including, but not limited acetic shingles porch printed blue screened and acid, acetate, phenyl anhydride, acetic roof; sodium panels on back and two solar on the others, formamide, glass- hydrochloric house; acid and a barn-like white trailer behind ware, equipment paraphernalia used other dilapidated unpainted condition of structure illegal sub- manufacture controlled aged bearing wood. There is a mailbox stances, books, and other documents records Adja- front name Bonner in residence. showing syn- and methods of chemical formulas is a detached two car cent residence thesizing precursors or controlled substances separate bays separate garage with two two substances, showing orders for or controlled or Both the and barn white doors. trailer purchases equipment precursor or chemicals running a white electrical cable from them illegal paraphernalia manu- or other used to the house." substances, showing facturing of controlled residence or dominion over where is to believe that there con- 2. “I have reason found, Title items are all in violation of Street, such of 444 Slater Attle- cealed at 841(a)(1) and §§ U.S.C. 846.” boro, adjacent buildings and in residence and im- upheld. the Bonner intended location was near mediately the search. commenced 1508. The house had been under surveil- lance, the warrant was executed Shortly after the search participated officer who had in the surveil- issued, the omis- Magistrate discovered lance, that were searched ordered the search sion of the He address. actually Turner, were those intended. suspended; point, at 45 minutes into that prong F.2d at 1511. The first search, suffi- the items had been ob- several hour, ciency test was met the the because “the served and seized. Within verbal Magistrate description a second which contained in the warrant de- address, and the search was included the the great scribed house to be searched with agents The searched the entire resumed. particularity.” Id. The above factors are residence, garage, the two-car Bonner present in the instant Additionally, case. barn, and a trailer. physical description the here is even more limiting, because it includes a mailbox with any that appellants The contend evidence the name “Bonner” front of the resi- during found the initial search must be dence. assert there are suppressed because was seized re- telephone directory listings thirteen They liance on a defective search warrant. Attleboro, Bonner in also assert that the evidence found in the the garage suppressed however, highly unlikely, because the area. It is description was included the the residences of these other Bonners places Finally, they particularized fit physical the de- improperly began contend that the search scription provided for in the warrant. actually before the search warrant arrived case, although In the Gitcho the on the scene. description of the location to be searched The Omission the Address was an incorrect street the court The Fourth Amendment states that “no found it to be sufficient because it was issue, upon probable warrants shall unlikely wrong premises would be cause, particularly describing ... and searched, agents executing place to be The searched....” manifest personally knew the location to be purpose particularity requirement Here, agent executing searched. the case prevent Fourth Amendment is to wide- the warrant had conducted surveillance of ranging general police. the Bonner residence on at least ten 897, 963, United States v. Gitcho, occasions. 601 F.2d at 372. Sim- (Ste ilarly, Hassell, the war- vens, J., dissenting) (1984). only description rant’s place to be determining The test for adequacy searched was “the Howard Hassell farm.” description of the location to be description The court held that this was searched is description whether the is suffi sufficient to allow officers to ascertain the cient “to enable the officer to searched, place especially where three identify locate and with rea officers remained at the scene while one effort, sonable and whether there is officer obtained the search warrant. Unit- reasonable probability premise that another Hassell, (6th ed F.2d might mistakenly be searched.” United Cir.1970). Turner, McCain, United States v. here, considering (8th Cir.1982); circumstances of its issuance and execu Gitcho, (8th Cir.), cert. tion, minor, suffered from a technical omis- denied, 62 sion. There was no risk that federal agents would be confused and stumble into Turner, house, having wrong advantage an incorrect or would take street address two-tenths a mile from their unforeseeable windfall and search legal. indiscriminately. agents, hav- was Id. houses surveillance, 3429. ing previously conducted exactly house wanted knew which In the instant also took search, accurately in detail described it step every expect- that could be affidavit, only that and searched

in their prepared ed of them. An affidavit was is- delay after the without house magistrate. presented neutral After residence the Bonner We hold that sued. grammatical corrections were made particularity, described sufficient was who concluded that although was inadvertent- the address established, cause search warrant omitted, proba- issued, no reasonable ly there was detailed physical with the de- mis- premises might bility scription another taken from the thus, searched; takenly search warrant affidavit attached onto warrant. At point, had an objective, valid. this rea- basis sonable to believe that the fourth assuming Even requirement warrant amendment’s was sat- to due the omission invalid The for responsibility isfied. the inadver- ad properly the evidence the omission of tent the address on the warrant exception faith good under the itself, mitted be must the as borne And, requirement. reviewing authority. See United the the final as the Leon, 897, exclusionary 468 U.S. not v. rule does serve to deter (1984), remand, judges, errors of but rather the errors 82 L.Ed.2d 677 on the officers, Cir.); police this court must conclude 1488 746 F.2d Leon, here. inappropriate it is 468 82 S.Ct. Sheppard, U.S. 3418. at (1984). Supreme In the L.Ed.2d by police held that evidence seized Court Scope The the Warrant objectively reasonable acting officers the DEA went contend on a good faith reliance search scope the of the search warrant beyond magis by a and detached neutral detached two-door when searched the trate, unsup ultimately found to be appellants, ga- According to garage. cause, sup by probable need not be ported descrip- included in the rage was exclusionary The pressed. rule (see in the warrant and affidavit tion remedi where its limited those situations 1) help property, locate footnote served, i.e., objectives to deter al are best an area to be searched. not as conduct, illegal police not mistakes The amendment serves fourth Id., U.S. at magistrates. and judges privacy. interest in protect the individual’s 3418. 3413 and intruding upon privacy Any search Leon Sheppard, the Court In justified by probable must be interest in the to a search warrant deficient test satisfy particularity and must cause The description of items to be seized. limits the requirement, which police presented by the detective affidavit intensity of the search. United States (D.C.Cir.1981). sufficiently described items Heldt, 668 F.2d however, seized, magistrate failed investigators fail to limit themselves When into the warrant. incorporate the affidavit in the both the particulars to the requirement held that and the The Court particularity signif for their mistak- all reasonable basis are drained of objective, cause mechanisms, restraining warrant authorized belief that icance as en nul practical outlined limitation becomes for the materials The concern here is lity. Id. at 1257. Sheppard, affidavit. on requirement’s limitation particularity noted the offi- The Court S.Ct. opera by the reasonably to be covered step area every that could took cers that the tion. expected them ensure Heldt, authority granted by ble. United States v. 668 F.2d to search The (D.C.Cir.1981), language specific places to the is limited given “suite of offices of Mr. Heldt” was it, not extend to and does described interpretation just “premis- as broad an as See, places. e.g., or different additional Asselin, given in supra. es” was Principe, 499 F.2d United States question court looked at the whether Keiningham v. United free-standing office, not a mentioned (D.C.Cir.1960). warrant, belonging person who did However, and affidavits search warrants Heldt, reasonably not work could sense in a common should be considered searching agents been viewed as manner, readings hypertechnical constituting part of “the suite of offices Spinelli v. United should be avoided. Heldt, Mr. Heldt.” at 1263. office was considered (1969); 21 L.Ed.2d 637 of, searching agents part appur- as or even 102, 108-109, Ventresca, to, “properties” tenant 741, 745-746, For Id. at 1265. See also United authorizing example, a search warrants (1st Cir.1974) Principe, 499 F.2d 1135 “premises” at a certain address authorize a (where partic- warrant authorized search of standing buildings on that search of the apartment building, ular and cabinet was Williams, 687 F.2d land. away six three to feet from entrance to (9th Cir.1982); apartment hallway opposite in small door (8th Cir.1969). Meyer, 417 F.2d apartment, executing officers search court, by this a In a recent decision war reasonably suppose could cabinet authorizing of “the rant a search appurtenant apartment). single family trailer known as a ... apparent preceding It is from the case carport was held to include a attached ...” garage” that if the “detached car law two car, adjacent parked disabled to the car warrant, mentioned in the never been port, hanging from a tree and a birdhouse it have considered been steps. about 15’ from the trailer United scope of the It should within the warrant. Asselin, States precluded not be from the Cir.1985). simply because it was included in a Napoli, In United States v. manner, giving rise to the ambi careless (5th Cir.1976), the court guity merely it was intended as of whether specifying held a “on the descriptor property, or as an area Napoleon Ave known as But it is clear from the nue,” language although limited did intend to affidavit “being large, multiple story, in a wooden- garage. The affidavit contains search dwelling,” frame sufficient residential the observation that one of defendants parked to embrace the vehicle in the drive garage after drove his car into the he was way in premises. purchased quantity on those The warrant known to have a small Granting particular the instant case was likewise sufficient of a chemical. some ambiguity, imprecision not leave so located on the Bonner did embrace exe much to the discretion of the officers property. Long, See also United States v. warrant, fairly can cuting the that it Cir.1971) (trash 449 F.2d 288 barrel authorized an said the warrant unbounded building part “premis of outside held to be particu in general search violation es” where warrant contained address larity requirement. See Marron United one-story struc description of “a red brick 72 L.Ed. ...”). ture (1927). “proper- present In the the word Possession Warrant was used the warrant instead ties” sufficiently Finally, appellants contend that the “premises”; these words are sup- been interchangea- seized should have synonymous to be considered evidence type prej- have shown neither the search warrant pressed because possession at agents’ physical not in udice. disagree. entry. We time “[T]he Accordingly, district correctly Procedure Rules of Criminal [do Federal appellants’ suppress. denied motion to impose an inflexible not] Affirmed. 41(d) feder- require does notice. Rule person upon serve

al officers re- warrant and a copy searched CARTER, Judge (dissenting District obtained, describing the material ceipt concurring part). part and require this be invariably does not it majority’s I concur conclusion that Katz place.” takes done before seized under the evidence issued 356 n. v. United containing proper- herein no address of the (1967). 19 L.Ed.2d 576 n. ty suppressed to be searched need not be Woodring, United also See good- because officer’s (9th Cir.1971). upon reliance faith a warrant repeatedly Courts neutral, magistrate detached under the doc- no- enforcement officials conducted law trine of by telephone or radio once the tified See, e.g., issued. dissent, however, from the (suit- Marx, (5th Cir.1981) adoption of the rationale that the first war- time defendant’s seized at the cases rant issued was not defective because agent tele- searched DEA after arrest possessed who executed in their from DEA who phone call particular premis- minds information and warrant and received es intended to be searched sufficient day given to defendant after an unreasonable likelihood of a mis- obviate Cooper, search); wrong premises pursu- taken search of (federal (W.D.Tenn.1976) F.Supp. the warrant. ant to by radio house after told officers searched fourth law It is fundamental amendment mag- federal that search warrant protections afforded the amend that istrate, and a and warrant arrives an hour facial lan ment are to be secured started); United after half when issued. Mar guage supra, 444 F.2d at 751 Woodring, v. States States, 48 ron v. United 275 learn- (police officers searched house after 76, (1927); United 74, L.Ed. 231 72 police ing over radio that search warrant (8th Johnson, 1311, 1315 v. F.2d 541 States way premises, its had issued and was on to Marti, 421 F.2d v. United States an hour and a half and warrant arrives denied, Cir.1970), 1263, (2d 404 cert. started). 1268 after 287, 30 92 S.Ct. L.Ed.2d ap- fully The rationale of these decisions sufficiency of a is to 41(d) are here. “Violations of Rule plies attach judged from the warrant and its a mo- essentially in nature and ministerial Academy, E.g., Lafayette In re ments. granted only to tion Inc., (1st Cir.1979); United F.2d 4-5 legal the defendant demonstrates when (1st Klein, n. 3 v. 565 F.2d States Marx, su- States prejudice ...” United 1315; Cir.1977); Johnson, 541 F.2d at See also United F.2d pra, Womack, United States Dauphinee, F.2d denied, 422 U.S. (D.C.Cir.1974), cert. Cir.1976). prejudice, To show defendants (1975); 2644, 45 L.Ed.2d 681 they subjected “were must show that United have or might not occurred that Huffman reh’g on (D.C.Cir.1971), rev’d on n. 7 not have so abrasive been [Rule Moore (1974); ground, F.2d 419 other followed.” 41(d)] been (D.C. v. v. United 441; Marx, 635 F.2d at Cir.1972). analytical I valid reason Burke, (2d Cir.1975). see no principles in measur- these 3423. The Court further depart “[Djepend from noted: sufficiency the first ing ing on the circumstances particular principles If are here. those be issued may facially a warrant be so defi apparent it is this i.e., in failing particularize cient— premises autho- it does not describe place things to be searched or the to be particu- with sufficient rized to be searched seized—that the officers cannot any larity, by reason of the total absence reasonably presume it to be valid.” Id. at municipal street or obviate Thus, S.Ct. at 3422. it would seem risk of a mistaken search of the substantial that because no officer could deduce with in the wrong premises course of the execu- certainty reasonable even the state or mu magistrate’s A tion of the warrant. as- nicipality in which the authorized may if sumptions, we assume that located, to be searched were much less the made, identity in fact as to the were street therein or the lot number of the execute a or as to who will street, premises on such pre this case is particular knowledge such officers what cisely that case excepted the Court may identity as to the holding from the reach of its Leon. applying intended the officer for the am, however, constrained to accede to the logic to be searched is not in upon conclusion based Massa adequate an substitute for the safe- law Sheppard, chusetts v. facially guard of a sufficient warrant. In (1984), terms, that Leon pragmatic assumptions such before does in fact validate the or after the fact of the execution of the execution of the operative warrant are lame and ineffective safe- search in this case. The facts of guards. nearly this case are identical to those in Sheppard. seeking Here the officer I am aware this rationale has been present setting warrant did an affidavit frequently Eighth resorted to forth the address of the attempt uphold Ninth Circuits Nevertheless, through searched. mag seizures. Gitcho, Cir.), inadvertence, 601 F.2d 369 cert. de istrate’s the address did not nied, 62 get incorporated into the warrant. The (1979), and cases cited in the validly officer then received the warrant as majority opinion at 866. I am unable to magistrate proceed executed from the case, however, find in which either the good ed on this record in faith with its Supreme Court or appeals this court of has perceive significant I can execution. no facially insufficient warrant on factual distinction between two cases. fact, appears rationale. that we exclusionary rule is not to be rejected explicitly this rationale in Lafay redress an error of the Academy, ette I at 5. am con Leon, 468 U.S. at S.Ct. at vinced that this court should continue to “ long so as he does not abandon ‘his abjure unwise, a doctrine that is so un ” and detached” function.’ “neutral Id. at founded, and ineffective. (quoting Aguilar 104 S.Ct. at 3417 Because I believe that the warrant is Texas, facially defective, it would seem at first (1964)). blush that its execution could not be Accordingly, uphold order under the doctrine of denying the motion to the district authority on the of Leon and The United States Su- Sheppard. I concur in the reso- preme Court there noted that for the doc- respect lution of the issues to the have, apply, trine to officers must because for the execu- of the warrant and the need objec- of the issuance of the “an ting warrant in their tively officers to have the reasonable belief the existence of possession. cause.” Id. at

Case Details

Case Name: United States v. Russell Bonner, United States of America v. Wayne Bonner

Court Name: Court of Appeals for the First Circuit

Date Published: Dec 30, 1986

Citation: 808 F.2d 864

Docket Number: 86-1327, 86-1328

Court Abbreviation: 1st Cir.