Discussion Thread: Search and Seizure
In a case where a warrant was issued specifying a search for marijuana and other drugs
“in the second floor dwelling” of a yellow and red house, the police arrived and saw the second
floor divided into two separate apartments, one marked “A” and one marked “B,” and proceeded
to search both apartments and found marijuana in both apartments. Must such evidence be
suppressed? Why or why not? And what evidence is needed to make the search and seizure
legal? Relevant to the answers is the similar case of Maryland v. Garrison, 480 U.S. 79 (1987).
In Garrison, a warrant commanded police to search “the premises known as 2036 Park
Avenue third floor apartment.” Garrison, 480 U.S. at 80. Police applying for and executing the
warrant reasonably believed there was only one apartment on the third floor. Only after
executing the warrant, conducting the search, and finding illegal contraband (evidence later used
to convict Garrison), the officers learned there were two separate apartments on the third floor,
one occupied by Garrison and another by McWebb. In upholding the legality of the search, the
Court noted the warrant was validly issued upon undisputed probable cause, and that the Fourth
Amendment has a particularity requirement— that warrants only issue particularly describing the
place to be searched and the persons or things to be seized—and was enacted to “prevent general
searches [b]y limiting the authorization to search to…specific areas and things for which there is
probable cause to search,” thereby “ensur[ing] that the search will be carefully tailored to its
justifications, and will not take on the character of the wide-ranging exploratory searches the
Framers intended to prohibit.” Garrison, 480 U.S. at 84. Although it was clear “with the benefit
of hindsight” that the warrant’s description of the place to be searched “was broader than
appropriate” since based on a mistaken belief only one apartment existed on the third floor, the
court held such mistake did not invalidate the warrant or the search pursuant thereto and that it
“must judge the constitutionality of the[ officer’s] conduct in light of the information available to
them at the time they acted.” Ibid, Garrison. In so holding, the Court expressed a few things
relevant to answering above questions:
(a) first, “if the officers had known, or even if they should have known, that there
were two separate dwelling units on the third floor…they would have been
obligated to exclude [Garrison’s] apartment from the scope of the requested
warrant.” Id, 480 U.S. at 85;
(b) second, “the discovery of facts demonstrating that a valid warrant was
unnecessarily broad does not retroactively invalidate the warrant. The validity of
the warrant must be assessed on the basis of the information that the officers
disclosed, or had a duty to discover and to disclose, to the issuing Magistrate.”
Garrison, 480 U.S. at 85;
(c) third, “[i]f the officers had known, or should have known, that the third floor
contained two apartments before they entered the living quarters on the third floor,
and thus had been aware of the error in the warrant, they would have been
obligated to limit their search to McWebb's apartment.” Garrison, 480 U.S. at 86;
(d) fourth, courts must recognize “the need to allow some latitude for honest mistakes
that are made by officers in the dangerous and difficult process of making arrests
and executing search warrants.” Garrison, 480 U.S. at 87;
(e) fifth, prior precedent holding that “an officer's reasonable misidentification of a
person does not invalidate a valid arrest is equally applicable to an officer's
reasonable failure to appreciate that a valid warrant describes too broadly the
premises to be searched.” Garrison, 480 U.S. at 87-88. Under such reasoning,
“the validity of the search of [an] apartment pursuant to a warrant authorizing the
search of the entire third floor depends on whether the officers' failure to realize
the overbreadth of the warrant was objectively understandable and reasonable.”
Garrison, 480 U.S. at 87-88; and
(f) Sixth, where objective facts available to officers at the time of a search suggest no
distinction between an apartment and the third-floor premises authorized to be
searched by a warrant, the search of the entire third floor is reasonable and lawful.
Id, at 87-88.
Applying Garrison to answer above questions, under reasoning in (a) and (c), supra, the
officers should not conduct a search of the entire second floor (including Apartments A and B)
unless they perceive, based on all objective facts before them at the time and in the warrant and
probable cause application and affidavit supporting the warrant, that contraband exists
throughout the entire second floor or that Apartments A and B are one and the same dwelling, as
stated in (f), supra. Id, Garrison, 480 U.S. at 87-88. Assuming the officers had no reason to
believe both apartments were one and the same dwelling, the search would appear to be illegal
under Garrison for reasons in (a) and (c), supra, thus requiring the evidence to be suppressed.
The officers learned and knew before the search that there were two separate apartments. This
fits with Garrison’s instructions that such a search should not proceed. See (a) and (c), supra.
However, this raises special concerns that undermine the administration of justice when officers
just learn of the different apartments merely seconds prior to executing the search and after
already executing the warrant to enter the house. Specifically, if officers enter a house pursuant
to a valid warrant to search for drugs on the second floor, then while going upstairs to the second
floor learn for the first time that there are two separate second floor apartments, and they do not
know from the warrant which one to search and initially understood the warrant to require
searching the entire second floor, if they were to then and there stop and turn around and return
to the police department to seek a new warrant, any evidence in either of such apartments could
be destroyed or relocated by the suspect. This scenario would seriously undermine and pose
numerous problems for law enforcement and for rooting out crime, and would even jeopardize
the lives of child and adult abductees held in such an apartment who the police were going to
rescue with such warrant. If the crime did not involve drugs, but the abduction of a 5-year-old
child, and there was probable cause for the warrant to issue to search “the second floor dwelling”
for the child and suspect, yet a straightforward application of Garrison would preclude searching
either apartment until a new warrant could be obtained specifying which apartment to search. In
the meantime, the child could be raped, murdered, or relocated. I do not think Garrison or the
Fourth Amendment require such a result.
The officers could have understandably and reasonably interpreted the warrant’s phrase
“second floor dwelling” to mean the entire second floor dwelling area, whether it included one or
several apartments. Also, the mere labeling of different second floor doors as A and B, or
otherwise creating what appear to be separate apartments, is not conclusive that they are actually
two separate apartments. The “second floor dwelling” could be comprised of two apartments (in
this case what appear to be Apartments A and B). A dwelling is usually comprised of multiple
different rooms. Some home owners use great variation in renting rooms of their houses, and
such variation can exist in a way where what appear to be separate apartments may altogether be
one dwelling unit/residence. This type of scenario is common among homeowners renting their
rooms and floors. 1 In such a case, the letters (or numbers) on the doors could remain on the
doors, suggesting two different apartments or even previously being two different apartments,
even though there was, in fact, only one dwelling place comprised of two separate apartments. If
the objective facts and evidence before the officers executing the search warrant indicated
Apartments A and B were altogether one dwelling place, under Garrison it would be proper and
permissible for them to search both apartments. Id, Garrison, 480 U.S. at 87-88. In this regard,
the warrant itself refers not to multiple dwellings, but to “the second floor dwelling” in a specific
house, thereby referring to the entire second floor as one dwelling. It is possible that the entire
second floor could still be one dwelling, even though it gives the appearance of containing or
actually contains two separate apartments (A and B). Moreover, the warrant (and/or its
supporting application or affidavit) may indicate probable cause to believe the drugs are used or
scattered throughout the entire second floor, thus justifying a search of the entire second floor. In
this scenario, the evidence should not be suppressed.
Additionally, warrants may issue authorizing the search of one place that includes
multiple dwellings. See, e.g., U.S. v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985)(warrant
authorizing the search of an entire ranch was not overbroad, even though there were multiple
dwellings on the ranch, because the entire property was under the suspect's control). “[A] warrant
is valid when it authorizes the search of a street address with several dwellings if the defendants
are in control of the whole premises, if the dwellings are occupied in common, or if the entire
property is suspect.” Blight v. City of Manteca, 944 F.3d 1061, 1066-1067 (9th Cir. 2019)
(internal citations and quotation marks omitted). Here, from the information given we have no
way of knowing whether the entire second floor was controlled by the suspects, or was occupied
in common, or if the entire second floor is suspect. If any of these scenarios existed, the search of
both apartments would be lawful and evidence from such not suppressed.
Separately, it is my belief that the phrase “second floor dwelling” place in a house, as
here, contains a reasonably certain and specific area to conduct a search in, whether it contains
separate rooms labeled Apartments A and B or otherwise, and sufficiently narrows the scope of a
search and satisfies the Fourth Amendment’s particularity requirement. We are not talking about
a second floor of an apartment building with hundreds or dozens of apartments on it, but a house
with a very limited second floor that putatively only has two ostensible apartments on such. The
search here was not the kind of broad ranging, arbitrary, ruthlessly rummaging, unlimited
warrantless searches conducted over entire communities and towns that the Founders knew of in
England and elsewhere in Europe and enacted the Fourth Amendment to prohibit, so I think the
Founders would conclude it was a narrow and particular search and reasonable to search both
apartments. Moreover, if the officers executed it with regard to either Apartment A or B, it would
be within the warrant’s scope, for no matter which apartment they searched it would still be “the
1 For example, one could get an AirBnB rental to a Room 101 on the second floor in someone’s house, and see a
Room 102 sign on the door next to Room 101, and then later learn from the homeowner that he or she rents both
Room 101 and Room 102 altogether as one unit, Unit 100. In this later scenario, Room 101 and Room 102 would
together make up Unit 100 and would altogether constitute one dwelling when one is renting Unit 100. If someone
rented Unit 100, they would get both Room 101 and Room 102 combined to be their one dwelling place, though
they would have what appear to be separate apartments. Also, some criminals could merely affix apartment letters or
numbers to room doors in a house, or even rearrange such, merely to try to illegitimize an imminent search and to
try to get any evidence found by such search suppressed by claiming each apartment letter or number on a room
door was a separate dwelling, and that a search of all such rooms was illegal, overbroad, and not authorized by the
warrant. Courts must be aware of this and give police latitude to overcome such criminal schemes to try to
illegitimize reasonable searches conducted pursuant to lawful warrants issued upon probable cause.
second floor dwelling” of such house. If a warrant issued to search an entire house is reasonably
specific by merely listing its address in the warrant, and it is, then a warrant issued to search the
second floor dwelling of the house is even more specific, even if it has multiple dwellings on
such second floor. I believe such describes a reasonably certain and particularized location for a
search to be executed at, even if there is some overbreadth based on how the homeowner divides
up the second floor, and, given that homeowners can divide up their residences in ways
authorities have difficulty ascertaining and “the need to allow some latitude for honest mistakes
…made by officers in the dangerous and difficult process of making arrests and executing search
warrants,” Garrison, 480 U.S. at 87, I believe the execution of the warrant to search both
apartments was not objectively unreasonable in the circumstances and that it was lawful under
the Fourth Amendment. 2 For these reasons, I do not think the evidence needs to be suppressed
based on the very limited facts given to us for this assignment, especially since the warrant
directs the search of the “second floor dwelling” and such could reasonably be construed to mean
the entire second floor even if there are multiple separate apartments on such.
From a Christian perspective, the evidence is admissible, so one of my answers (that the
evidence should be suppressed based on Garrison if the facts warranted such) would change, but
my other answers (indicating that the evidence need not be suppressed) remain the same.
Everyone is accountable to God for their sins. “Nothing in all creation is hidden from God’s
sight; everything is uncovered and exposed before the eyes of Him to whom we must give
account.” Hebrews 4:13 (Berean Study Bible). The laws of humans do not supersede God’s laws.
Thus, if there is evidence of sin/crime, God already knows about it and the mere fact that an
illegal search and seizure reveals such evidence to other humans is of little import to God. God
will punish each person for their sin, unless they repent (which means acknowledging and
confessing such sin and seeking atonement for it) and have faith in and strive to obey the
Messiah. While the Bible does establish principles and values of liberty in one’s person and
property and rights to be secure in such, the concept of an illegal search and illegal seizure of
evidence of crime is foreign to the Bible. The judges of ancient Israel routinely engaged in what
we would now consider to be illegal searches and seizures, and there was no warrant requirement
back then. From a biblical perspective, these officers acted in good faith to reasonably execute a
lawfully issued search warrant on a second floor dwelling at a particular house with specific
paint colors at a specified address, and such uncovered evidence of drugs and drug activity in
both apartments, and such evidence is admissible in God’s court and eyes. From a biblical
perspective, the evidence should not be suppressed and it is unsuppressible to God.
This search and seizure were already legal for reasons aforementioned or, if not, could
potentially be made legal in a few different ways:
(1) the officers showing the phrase “second floor dwelling” can be reasonably understood to
mean the entire second floor as a place of dwelling, which is possible for above reasons, or that
the “second floor dwelling” included both apartments;
2 Some criminals and criminal homeowners may divide up their residences into multiple separate “dwellings” in
an effort to obstruct or prevent police from obtaining more precise warrants for searches, and police may not be
expected to be able to seek more specific warrants in these situations and others. If Mr. Criminal Homeowner has
drugs in his living room and sees police coming to his residence for a search, he can just move the drugs into a spare
bedroom and claim it is a separate dwelling and thus a warrant to search his residence did not include the search of
the separate dwelling, and the evidence must be suppressed. Were courts to countenance such by granting
suppression, it would result in increasingly more crafty criminals diving up their houses or residences in even more
crafty ways so as to be able to seek suppression of evidence if caught with such. In these scenarios, police need to be
given extra latitude to reasonably execute a warrant in the face of criminal efforts to undermine searches.
(2) the officers showing Apartments A and B were altogether one dwelling place or that they had
reasonable cause to perceive such as one dwelling place; or
(3) something in the warrant or its supporting application or probable cause affidavit indicating
the illegal drugs were suspected of being throughout the second floor, or that the entire second
floor was used for criminal activity or under the control of someone who was the suspect, or both
apartments were rented by the same individual or occupied in common, or that the entire second
floor property is suspect, or that the home owner did not have anyone residing on the second
floor and it was used for drug operations, or something at the housing indicating that the labeling
of rooms on the second floor as Apartments A and B appeared to be a fraudulent effort to
obstruct justice and to prevent the officers from carrying out the search commanded by the
warrant (with such constituting evidence of the crime of obstruction of justice being perpetuated
in front of the officers, the officers could seize such evidence and then conduct searches of both
rooms falsely labeled as apartments).
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