U.S. v. Turner

• Decision Date: 13 September 1985
• Docket Number: No. 85-5025,85-5025
• Citation: 770 F.2d 1508
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth TURNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1508

770 F.2d 1508

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth TURNER, Defendant-Appellant.

No. 85-5025.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1985.

Decided Sept. 13, 1985.

Judith S. Feigin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Barton C. Sheela, III, San Diego, Cal., for defendant-appellant.

On Appeal From the United States District Court for the Southern District of California.

Before ANDERSON, BEEZER, and BRUNETTI, Circuit Judges.

BEEZER, Circuit Judge:

Turner appeals from the district court's denial of his motion to exclude evidence obtained from the search of a house. He asserts that because the search warrant contained the wrong street address, it did not describe the place to be searched with sufficient particularity to satisfy the Fourth Amendment. We affirm.

FACTS

The Border Patrol had probable cause to believe that a certain house on rural Mountain View Drive in Escondido, California, was being used for the purpose of harboring and smuggling illegal aliens. The house, which was under surveillance, was located in a dense grove of trees on a circular driveway shared with several other houses. At the entrance to the driveway were three mailboxes marked 2800, 2810 and 2756 Mountain View Drive. Because the suspect house did not have a number on its doorway, the agents used a directory and process of elimination to determine that the suspect house was 2762 Mountain View Drive. The affidavit for search warrant and the search warrant itself, which was issued on September 28, 1984, and executed the next day, described the house as follows:

2762 Mountain View, Escondido, California, and further described as a beige two-story stucco and adobe house with an attached two-car garage. The garage has entry doors on either side of a large garage door. The entry door located on the south side of the garage door has a brass-plated deadbolt lock installed. On the south side of this door are two windows covered by tinfoil. The doors and trim of the house are painted brown. The entry to the residence is located on the south side of the residence and the Although the affidavit for search warrant was signed by INS Investigator Alfonso Miranda, the description of the house was prepared by Border Patrol Investigator Lawrence Harlan. Harlan, who had personally seen the suspect house on three occasions, also participated in the execution of the warrant.

garage entry faces west. The driveway to the residence off of Mountain View Drive leads north from Mountain View Drive and is marked by three mailboxes numbered 2800, 2810 and 2756. This driveway leads past these three residences, the last identified by a residence marker of 2756, D.A. Mieir. The driveway then turns to concrete and dead ends at the 2762 Mountain View Drive residence. There is a farm road leading past 2762 Mountain View Drive and into an avocado grove. The driveway leads north from Mountain View Drive. Entry to the 2762 Mountain View Drive residence is located on the south side.

The description of the suspect house turned out to be correct except for the street number. The house that the agents had surveilled, intended to search and actually did search was 2800 Mountain View Drive. Number 2762 Mountain View Drive was located approximately two-tenths of a mile away in a location that the agents did not know existed, and it did not resemble the description of the suspect house.

The district court denied appellant's motion to suppress incriminating evidence found in the search. Appellant then pled guilty to harboring illegal aliens, reserving his right to appeal the evidentiary ruling. This appeal followed.

ANALYSIS

The Fourth Amendment states that "no Warrants shall issue, but upon probable cause, ... and particularly describing the place to be searched...." Both parties agree that the "test for determining the sufficiency of the warrant description is 'whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.' " United States v. McCain, 677 F.2d 657, 660 (8th Cir.1982) (quoting United States v. Gill, 623 F.2d 540, 543 (8th Cir.), cert. denied, 449 U.S. 873, 101 S.Ct. 214, 66 L.Ed.2d 94 (1980) and United States v. Gitcho, 601 F.2d 369, 370 (8th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979) ); cf. United States v. Alexander, 761 F.2d 1294, 1300 (9th Cir.1985) ("The particularity requirement inquires into the sufficiency of the description of the premises to be searched, and tests whether 'the officer with a search warrant can with reasonable effort ascertain and identify the place intended.' ") (quoting Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925) ). In applying this test, we are mindful of the general rule that affidavits for search warrants must be tested and interpreted in a common sense and realistic, rather than a hypertechnical, manner. See United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 745-746, 13 L.Ed.2d 684 (1965); accord Illinois v. Gates, 462 U.S. 213, 235-36, 103 S.Ct. 2317, 2330-31, 76 L.Ed.2d 527 (1983).

In McCain, the warrant described the place to be searched as "4510 Delmar, offices and work area of a machine shop." 677 F.2d at 659. The "offices and work area" that the police intended to search and actually did search were parts of two adjoining buildings with a connecting interior doorway that were...