affidavit identified premises as two-story duplex and specifically requested authority to search both upper and lower levels
How later courts described this case
- affidavit identified premises as two-story duplex and specifically requested authority to search both upper and lower levels
- upholding search warrant covering more than one apartment where defendant’s exercise of dominion over otherwise vacant apartment not his own was a regular occurrence
- "[H]ere '[t]he affidavit was incorporated into the warrant, and we shall not require that the facts stated in the affidavit be recited again on the face of the warrant when they are served together.’ "
- warrant valid for entire residence where defendant had “dominion and control” over the first floor and used it for access to second-floor gambling ring
Written by the judges who cited it.
The opinion
SWYGERT, Circuit Judge,
concurring.
I agree with the majority that “[t]he sole issue in this appeal is whether the search warrant contravened the Fourth Amendment by not describing the place to be searched with sufficient particularity.” In resolving this issue, however, the court should look only to whether the affidavit accompanying the search warrant demonstrated that there was probable cause to search the entire premises at 1172 Harrison Boulevard at the time the warrant was issued. In making this inquiry, we may consider facts that must have been apparent to the police at the time they sought the warrant, even if they were not specified in the affidavit. But we may not permit the police or trial courts to use facts that only became apparent after the warrant was issued to support a finding of probable cause for the issuance of the warrant in the first place. See United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967).
Therefore, I am disturbed by the majority’s extensive reliance on facts that were adduced at the hearing on defendant’s motion to suppress. They should be considered only if they must have been obvious to the police at the time the warrant was presented to the magistrate. Under this standard, the defendant’s behavior after he was arrested and the fact that the second floor apartment at 1172 Harrison Boulevard could be entered from the porch door marked “1172” only by first going through the first floor apartment are irrelevant in determining whether probable cause existed.
Even if this evidence is excluded, however, I agree with the majority that there was probable cause to search the entire premises at 1172 Harrison Boulevard. The affidavit reveals that the police had seen the defendant, who was legitimately under suspicion for illegal gambling activities, stop at 1172 Harrison Boulevard on three separate occasions. It is very likely that he used the 1172 door on those occasions. The police would have reported that he had stopped at 1176 Harrison Boulevard if he had used the 1176 door, since there is no reason to think that the police knew during the course of surveillance that the second floor apartment at 1172 could be entered through the 1176 door. Given the existence of a single mailbox at the 1172 end of the porch, the police had probable cause at the time the warrant was issued to think that the defendant had dominion and control over both the first and the second floor at the 1172 address. To invalidate the warrant now because the police failed to perceive that the first floor contained an unoccupied separate apartment would be to demand certainty rather than probable cause.