United States v. Parmenter

• Decision Date: 11 January 1982
• Docket Number: Crim. No. 81-321-G.
• Court: U.S. District Court — District of Massachusetts
• Parties: UNITED STATES of America v. Charles R. PARMENTER

531 F. Supp. 975

UNITED STATES of America v. Charles R. PARMENTER

Crim. No. 81-321-G.

United States District Court, D. Massachusetts.

January 11, 1982.

Joseph F. Brennan, Jr., Shrewsbury, Mass., for defendant.

James F. X. Dinneen, Asst. U.S. Atty., Boston, Mass., for U.S.

MEMORANDUM AND ORDER SUPPRESSING EVIDENCE

GARRITY, District Judge.

On March 19, 1981, Magistrate Alexander issued a warrant directing the search of a multiple family dwelling in Worcester, Massachusetts, by agents of the Bureau of Alcohol, Tobacco and Firearms (ATF). The warrant described the place to be searched as "11 and 13 Benefit St., Worcester, Massachusetts, a brick three story duplex dwelling along with the cellar of said structure and the garage on said property located on the east side of Benefit St., Worcester." The issuance of the warrant was supported by an affidavit (attached as Exhibit A) by ATF Special Agent Douglas Wenner which indicated that, based on information obtained from two confidential informants and surveillance by ATF agents, he had reason to believe that unlawfully possessed firearms were being concealed on the premises.

The apartment of the defendant, Charles Parmenter, was searched pursuant to the warrant described above on March 20, 1981. Three firearms were seized and the defendant was subsequently charged with the unlawful possession of firearms in violation of 18 U.S.C. Appendix, § 1202(a)(1). Defendant now moves to suppress the evidence seized on the ground that the warrant under which it was obtained did not particularly describe the place to be searched as required by the Fourth Amendment to the United States Constitution. Specifically, he contends that since the warrant authorized the search of the entire premises of a multiple-occupancy structure, when probable cause existed to search only some of the apartments within that structure, the warrant was invalid.

At a hearing held on defendant's motion on November 27, 1981, the following facts were developed. The building located at 11 and 13 Benefit St. is a large 3 story duplex which is divided into eight separate apartments and one or two cellars. Four apartments, two on the first floor, and one on each of the second and third floors, are located at each of 11 Benefit St. and 13 Benefit St. At the time the warrant was executed, seven of the eight apartments were occupied. Defendant lived alone in an apartment on the first floor at the rear of 13 Benefit St. The occupants of the apartments, who were not related to each other, were as follows:

                A. 11 Benefit St
                1. First floor, front ......... Ray Johnson
                2. First floor, rear .......... Gary Zarr
                3. Second floor ............... Robert Walkiewicz
                4. Third floor ................ Susan Candell
                B. 13 Benefit St
                1. First floor, front ......... "A Woman named Sue"1
                2. First floor, rear .......... Defendant Parmenter
                3. Second floor ............... Melvin Eriksen
                                                (owner and landlord)
                4. Third floor ................ Vacant
                

There are four separate entrances to the building, at the front and side of 11 Benefit St., and at the front and side of 13 Benefit St.² There is no access between the two sides of the building, i.e., there is no way a person can go between 11 and 13 Benefit St. without leaving by the first floor outdoor entrance of one and entering by the first floor outdoor entrance of the other. Photographs admitted into evidence by the defendant showed that outside the front entrance to 11 Benefit St. there were 4 separate mailboxes and that outside the front entrance to 13 Benefit St. there were 3 separate mailboxes. Defendant testified that each tenant also had his/her own doorbell located outside one of the two front entrances.

The ATF Bureau had had the building under surveillance for six months prior to the search. Agent Wenner testified that although he had never entered the building prior to the warrant's execution, he knew that several individuals lived inside the building. He did not, however, know exactly where each resident lived. He further testified that at the time of the search, the separate mailboxes at each entrance were visible from the road. Wenner also testified that after he entered the building, he saw no common living areas. There were a series of separate rooms or residences connected only by hallways and stairs. Although the residences, within each side of the duplex building, were not separately numbered, they had separate doors and locks.

The affidavit in support of the challenged warrant shows that prior to the search, cause existed to search only rooms on the first and third floors of 11 Benefit St., the first floor of 13 Benefit St., and the cellar of either 11 or 13 Benefit St. No mention is made in the affidavit of anything suspicious occurring in rooms on the second floor of 11 Benefit St. or on the second and third floor of 13 Benefit St. Reference is made to observations warranting suspicion which were made on the floor on which defendant Parmenter's apartment was located, viz., the first floor of 13 Benefit St. However, neither the affidavit nor the warrant specifies which of the two apartments located on the first floor the confidential informant was in when he made his observations.

Given the contents of the affidavit, probable cause was not established at the time the warrant was issued to search one of the apartments on the first floor of 13 Benefit St. nor any of the rooms on the second floor of 11 Benefit St., the second floor of 13 Benefit St., and the third floor of 13 Benefit St. Nevertheless a total search of all of the apartments or rooms located on each floor of 11 and 13 Benefit St. was actually conducted by ATF agents. The issue presented is whether the warrant in this case which directed the search of an entire multiple occupancy structure and contained no specification of the particular sub-units to be searched, when probable cause was shown for searching less than all of the sub-units, is invalid under the Fourth Amendment. For the reasons outlined below, we hold that it is and hereby grant defendant's motion to suppress.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. Fourth Amendment, United States Constitution (emphasis added).

Federal courts consistently have held that the Fourth Amendment's requirement that a "place" be particularly described, when applied to dwellings, refers to a single living unit or residence. United States v. Hinton, 7 Cir. 1955, 219 F.2d 324. When a building under suspicion is divided into more than one occupancy unit, probable cause must exist for each unit to be searched, United States v. Whitney, 9 Cir. 1980, 633 F.2d 902 at 907, cert. denied, 1981, Whitney v. United States, 450 U.S. 1004, 101 S.Ct. 1717, 69 L.Ed.2d 208; United States v. Dorsey, 1978, 192 U.S.App.D.C. 313, 591 F.2d 922; United States v. Hinton, supra at p. 326, and a warrant must describe the particular sub-unit or units to be searched. United States v. Higgins, 7 Cir. 1970, 428 F.2d 232 (affidavit for search warrant referring to basement apartment in a building with three separate apartments in basement, was fatally defective for failure to describe with particularity the place to be searched); United States v. Chin On, D.C.Mass.1924, 297 F. 531, 533. The general rule is that a warrant which describes an entire building as the place to be searched when probable cause exists for searching only one apartment unit therein is void. United States v. Whitney, supra; United States v. Votteller, 6 Cir. 1976, 544 F.2d 1355; United States v. Esters, E.D.Mich. 1972, 336 F.Supp. 214 at p. 218; Hinton, supra; United States v. Diange, W.D.Pa. 1940, 32 F.Supp. 994; Annot., 11 A.L.R.3d 1330 (1967) and cases cited therein at pp. 1333-1339.

The most frequently cited case for the general principles outlined above is United States v. Hinton, supra, the case upon which defendant principally relies. In Hinton, defendant-appellants were arrested and convicted of narcotics offenses after a search of the entire building in which they lived. The building, described by its address in the warrant, contained four separate apartments. One of the two defendant-appellants owned the building; the other was a tenant there. The warrant was issued upon an affidavit which indicated that the affiant had seen heroin being sold on the premises by four different persons. Id., at p. 325. The affidavit neither identified the particular apartment or apartments in which the sales were made nor alleged that the sales were made in apartments occupied by any of the alleged sellers. Id., at p. 325. In invalidating the warrant, the Seventh Circuit stated:

... the scope of the warrant to search is dependent upon the extent of the showing of probable cause. The command to search can never include more than is covered by the showing of probable cause to search.

For purposes of satisfying the Fourth Amendment searching two or more apartments in the same building is no different than searching two or more completely separate houses. Probable cause must be shown for searching each house, or in this case each apartment.... A single warrant may cover several different places or residences in a single building. But probable cause must be shown for searching each residence unless it be shown that although appearing to be a building of several apartments the entire building is actually being used as a single unit. Hinton, supra at p. 325-326.

The Hinton court explicitly rejected an argument by the Government that the warrant could be upheld on the ground that its supporting affidavit showed probable cause to search the...