808 F.2d 864 (1st Cir. 1986), 86-1327, United States v. Bonner

Docket Nº:86-1327, 86-1328.
Citation:808 F.2d 864
Party Name:UNITED STATES of America, Appellee, v. Russell BONNER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Wayne BONNER, Defendant, Appellant.
Case Date:December 30, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
FREE EXCERPT

Page 864

808 F.2d 864 (1st Cir. 1986)

UNITED STATES of America, Appellee,

v.

Russell BONNER, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Wayne BONNER, Defendant, Appellant.

Nos. 86-1327, 86-1328.

United States Court of Appeals, First Circuit

December 30, 1986

Argued Sept. 3, 1986.

Page 865

Carmin C. Reiss, Federal Defender Office, and Edward A. Gottlieb with whom Coyne & Gottlieb, Boston, Mass., were on joint brief for defendants-appellants.

Ralph C. Martin, II, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

Before BOWNES and TORRUELLA, Circuit Judges, and CARTER, [*] District Judge.

TORRUELLA, Circuit Judge.

This is a consolidated appeal from judgments entered in the United States District Court for the District of Massachusetts convicting defendants, now appellants, Russell Bonner and Wayne Bonner, of one count alleging the manufacture of amphetamine, a violation of 21 U.S.C. Sec. 841(a)(1), and one count alleging a conspiracy to manufacture amphetamine, a violation of 21 U.S.C. Sec. 846. Defendants are appealing the denial by the district court of their motions to suppress evidence. We affirm the order of the district court.

Background

In September 1985, the Drug Enforcement Administration (DEA) began an investigation of two brothers, Russell and Wayne Bonner. The Bonner residence was placed under regular surveillance. In November 1985, a DEA agent applied to a United States Magistrate for a search warrant and arrest warrants for the Bonners. The affidavit outlined the investigation and contained a detailed physical description of the premises, 1 as well as a detailed description of the items to be seized, and the address. 2 The Magistrate found "more than probable cause" to issue the warrants. Attached to the search warrant was the same description of the premises that was contained in the affidavit (see footnote 1); the exact address, however, was not included. Upon the issuance of the warrants, the DEA agent promptly telephoned the "case agent" in charge of the investigation, who had conducted surveillance of the premises in question on at least ten prior occasions. The case agent was waiting with other

Page 866

agents near the Bonner residence and immediately commenced the search.

Shortly after the search warrant was issued, the Magistrate discovered the omission of the address. He ordered the search suspended; at that point, 45 minutes into the search, several items had been observed and seized. Within the hour, the Magistrate issued a second warrant, which included the address, and the search was resumed. The agents searched the entire Bonner residence, the two-car garage, a barn, and a trailer.

The appellants contend that any evidence found during the initial search must be suppressed because it was seized in reliance on a defective search warrant. They also assert that the evidence found in the garage should be suppressed because the garage was not included in the description of places to be searched. Finally, they contend that the search improperly began before the search warrant actually arrived on the scene.

The Omission of the Address

The Fourth Amendment states that "no warrants shall issue, but upon probable cause, ... and particularly describing the place to be searched...." The manifest purpose of the particularity requirement of the Fourth Amendment is to prevent wide-ranging general searches by the police. United States v. Leon, 468 U.S. 897, 963, 104 S.Ct. 3405, 3430, 82 L.Ed.2d 677 (Stevens, J., dissenting) (1984).

The test for determining the adequacy of the description of the location to be searched is whether the description is sufficient "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. Turner, 770 F.2d 1508, 1510 (9th Cir.1985); United States v. McCain, 677 F.2d 657, 660 (8th Cir.1982); United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979).

In Turner, a warrant having an incorrect street address two-tenths of a mile from the intended location was upheld. 770 F.2d 1508. The house had been under surveillance, the warrant was executed by an officer who had participated in the surveillance, and the premises that were searched were those actually intended. Turner, 770 F.2d at 1511. The first prong of the sufficiency test was met because "the verbal description contained in the warrant described the house to be searched with great particularity." Id. The above factors are present in the instant case. Additionally, the physical description here is even more limiting, because it includes a mailbox with the name "Bonner" in front of the residence. Appellants assert that there are thirteen telephone directory listings for Bonner in the Attleboro, Massachusetts area. It is highly unlikely, however, that the residences of these other Bonners would fit the particularized physical description provided for in the warrant.

In the Gitcho case, although the only description of the location to be searched was an incorrect street address, the court found it to be sufficient because it was unlikely that the wrong premises would be searched, and the agents executing the warrant personally knew the location to be searched. Here, the case agent executing the warrant had conducted surveillance of the Bonner residence on at least ten prior occasions. Gitcho, 601 F.2d at 372. Similarly, in United States v. Hassell, the warrant's only description of the place to be searched was "the Howard Hassell farm." The court held that this description was sufficient to allow officers to ascertain the place to be searched, especially where three officers remained at the scene while one officer obtained the search warrant. United States v. Hassell, 427 F.2d 348, 349 (6th Cir.1970).

The warrant here, considering the circumstances of its issuance and execution, suffered from a minor, technical omission. There was no risk that federal agents would be...

To continue reading

FREE SIGN UP