U.S. v. Dahlman

• Decision Date: 22 December 1993
• Docket Number: No. 92-2136,92-2136
• Citation: 13 F.3d 1391
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark James DAHLMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1391

13 F.3d 1391

UNITED STATES of America, Plaintiff-Appellee, v. Mark James DAHLMAN, Defendant-Appellant.

No. 92-2136.

United States Court of Appeals, Tenth Circuit.

Dec. 22, 1993.

John B. Leyba, Las Cruces, NM, for defendant-appellant.

Don J. Svet, U.S. Atty., for the District of New Mexico, and Tara C. Neda, Asst. U.S. Atty., Albuquerque, NM, for plaintiff-appellee.

Before McKAY, Chief Judge, TACHA, Circuit Judge, and KANE, District Judge. ^*

McKAY, Chief Judge.

In October of 1991, Defendant was charged with conspiracy to manufacture psilocybin, manufacturing psilocybin, and manufacturing less than fifty marihuana plants. Defendant was also charged with six counts of carrying and using firearms in relation to the above drug offenses. Defendant pleaded guilty to the drug offenses and consented to a bench trial on the firearms charges where he was subsequently convicted on all counts. Defendant now appeals.

I.

A.

Defendant contends the trial court erred in denying his motion to suppress evidence. He asserts that the search warrant was overbroad in that it did not state with particularity the places to be searched. ¹ Specifically, Defendant asserts the warrant at issue in this case did not authorize a search of the cabin in which he was residing. ² At issue is whether the guns seized in the cabin in which Defendant was residing were properly admitted into evidence.

In this case, the warrant included the following description of the property to be searched: "Location of the search will be Tee Pee Ranch Phase II, Type II Subdivision, Catron County, New Mexico, Lots 128 and 129. Lots 128 and 129 are located at the intersection of Wilderness Lane and Lance Lane." (Def.Ex. A, Attachment "B").

As conducted, the search encompassed a camping trailer, the cabin in which Defendant was residing, and the surrounding grounds. ³ The search of the trailer and its surrounding area revealed the contraband that was the basis for the drug charges to which Defendant pleaded guilty. In the cabin, the officers discovered the firearms that served as the basis for the firearms charges.

Our standard of review for the denial of a motion to suppress is to accept the trial court's findings of fact unless clearly erroneous and to view the evidence in the light most favorable to the government. United States v. Anderson, 981 F.2d 1560, 1566 (10th Cir.1992). However, the determination of the sufficiency of a warrant under the Fourth Amendment is a conclusion of law we review de novo. Id.

The Fourth Amendment provides that "no warrants shall issue ... without particularly describing the place to be searched...." The Supreme Court has noted that

the Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one "particularly describing the place to be searched...." The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas ... , the requirement ensures 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.

Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987).

As we have previously stated, a " 'description is sufficient if [it] enables the officers to ascertain the place to be searched' with reasonable effort." United States v. Sturmoski, 971 F.2d 452, 458 (10th Cir.1992), quoting United States v. DePugh, 452 F.2d 915, 920 (10th Cir.1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805 (1972). Applying this standard, we have held that a partially erroneous description was not fatal where officers nonetheless were able, with reasonable effort, to ascertain the area to be searched. DePugh, 452 F.2d at 920. Likewise, we have ruled that a warrant authorizing the search of a certain premises that is otherwise adequately described permits officers to search vehicles located on the curtilage when the objects of the search might be located in those vehicles, even though the warrant does not specifically authorize the search of vehicles. Sturmoski, 971 F.2d at 458 (authorizing search of horse trailer even though warrant only specifically authorized a search of buildings); United States v. Gottschalk, 915 F.2d 1459, 1461 (10th Cir.1990) (authorizing search of automobiles even though warrant only specifically authorized the search of a residence).

In the instant case, the warrant only authorized the search of specified subdivision lots. No mention was made of any residence or other structures to be searched. Thus at issue is the question of whether a warrant authorizing the search of subdivision lots permits officers to conduct a search of a residence located thereon.

The government attempts to overcome the lack of particularity of the description of the place to be searched by referring to the facts contained in the search warrant affidavit. The government asserts the affidavit specifically mentioned the residence, indicated its owner, and related that prior to applying for the warrant, the officers had surveilled the premises and had become confident of its location.

In addition, the government urges us to adopt the reasoning of the trial court, which denied Defendant's motion to suppress based on United States v. Alexander, 761 F.2d 1294 (9th Cir.1985). In Alexander, the court held that "a warrant is valid when it authorizes the search of 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." Id. at 1301. ⁴

We find both of these positions unpersuasive. In United States v. Leary, 846 F.2d 592, 603 (10th Cir.1988), we noted as follows:

It is true that the particularity of an affidavit may cure an overbroad warrant, but only "where the affidavit and the search warrant ... can be reasonably said to constitute one document. Two requirements must be satisfied to reach this result: first, the affidavit and search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference."

(quoting 2 W. LaFave, Search and Seizure Sec. 4.6(a), at 241 (2d ed. 1987). In the instant case there is no indication in the record that the affidavit was physically attached to the warrant. Furthermore, there are no words of reference in the warrant incorporating the allegations and factual assertions of the affidavit. Accordingly, we hold that the government may not rely on the affidavit to cure the warrant's lack of particularity in describing the place to be searched. See United States v. Williamson, 1 F.3d 1134, 1136 n. 1 (10th Cir.1993).

We likewise find the trial court's reliance on Alexander to be unpersuasive under the circumstances of this case. Unlike the instant case, the warrant in Alexander specifically authorized the search of all buildings located at a particular street address. In the instant case, the location was merely described as two numbered subdivision lots. Where a warrant only identifies the property to be searched by subdivision lots, there is some ambiguity as to the scope of the area to be searched. The description could refer just to the ground itself, or to the ground and all structures, including residences located on the subdivision lot.

We are of the view that under such circumstances and given our well-founded tradition of recognizing the sanctity of the home, a warrant authorizing the search of a lot of land without a more precise definition of the scope of the search is inconsistent with the particularity requirement of the Fourth Amendment, and does not suffice to authorize a search of a residence located on the land. As the Supreme Court has noted the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."

....

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."

Payton v. New York, 445 U.S. 573, 585, 589-90, 100 S.Ct. 1371, 1379, 1381-82, 63 L.Ed.2d 639 (1980) (alterations in original) (citations omitted). Consequently, we conclude that the trial court erroneously ruled that the warrant sufficiently described the scope of the search. We hold that where officers intend to search a residence, the description of the property to be searched may not be so ambiguous as to leave doubt as to the scope of the search.

By our holding, we do not intend to cast doubt on our prior decisions approving of the search of vehicles not specifically mentioned where an otherwise valid search of a residence and surrounding structures has been approved. See Sturmoski, 971 F.2d at 458; Gottschalk, 915 F.2d at 1461. Rather, we wish to emphasize that when officers intend to search a residence, an ambiguous warrant describing only the lot of land to be searched is inconsistent with the Fourth Amendment's particularity requirements given the special sanctity our jurisprudence has placed on the home.

We recognize that the rule of law we announce today is at odds with positions taken by the Eighth and Ninth circuits. United States v. Williams, 687 F.2d 290 (9th Cir.1987); United States v. Meyer, 417 F.2d 1020 (8th Cir.1969). ⁵ However, we view the traditional sanctity given to a residence as requiring law...