©2010 Brian S. Battertion, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) United States v. Thurman (8th Cir. Decided November 22, 2010)
At times, addresses of homes are ambiguous or difficult to determine. Law enforcement officers seeking to obtain search warrants must rely on common sense, tax records and other information available to them in order to determine the proper address for the warrant. What happens, however, if the law enforcement officer applying for the search warrant uses the incorrect address? While cases such as this often are determined by the specific facts before the court, the Eighth Circuit Court of Appeals recently decided the United States v. Thurman [i] which may help answer the question above.
The facts of Thurman, taken directly from the case, are as follows:
In October 2006, Conservation Officer Jeremy King began to investigate illegal deer-baiting activity on property located at 1035 Zeller Avenue in Marshall County, Iowa. King determined that the property, which spanned approximately 39 acres of land, was owned by Thurman’s father. On the property were a two-story frame house and a mobile home, roughly 200 yards apart, and several outbuildings. Near the frame house, there was a green sign labeled “1025” above a mailbox. Near the mobile home, there was a mailbox marked “1035 Zeller.”
On December 2, King observed Dale Thurman and his son in separate tree stands on the property. After speaking with the two Thurmans, King issued a citation to Dale Thurman for illegal baiting activity and confiscated Thurman’s muzzleloader. On the citation, King listed Thurman’s address as “1035 Zeller Avenue.”
After issuing the citation, King discussed hunting regulations with Thurman. According to King, Thurman asked whether he could hunt deer with a pistol. When King responded that a pistol could be used, Thurman stated that he had a few of those and pointed at the frame house.
King encountered Thurman again on December 5, 2006, when Thurman was hunting deer from his truck. King believed that Thurman was using a two-way communication device to hunt deer, so he explained to Thurman that this was impermissible. During the encounter, Thurman told King that he heard that King’s house had been “shot to hell.” When King asked if Thurman was threatening him, Thurman responded: “I have been in jail for 10 f—ing years and I would do 10 f—ing more for your ass.” Thurman then drove away.
After running a criminal history check and discovering that Thurman was a convicted felon, King met with Detective Wade Ruopp of the Marshall County Sheriff’s Office about his encounters with Thurman. Ruopp confirmed that Thurman was a convicted felon and that his right to possess firearms had not been restored. He began to prepare a search warrant application for Thurman’s house. While preparing the application, Ruopp consulted the Marshall County Assessor’s website. Ruopp testified that the website’s listing for 1035 Zeller Avenue contained depictions of both the mobile home and the frame house. There was no listing on the website for 1025 Zeller Avenue.
The search warrant application stated that the premises to be searched was “the two story framed residential dwelling and outbuilding of 1035 Zeller Ave. located approximately one & two thirds mile north of Hwy. 96 on Zeller Avenue.” The application also stated that the premises were “[p]ossessed by . . . Dale Franklin Thurman.” In the application, Ruopp noted that Thurman had told King that he had pistol firearms in his house, that Thurman was a convicted felon, and that there was no record that Thurman’s rights had been restored. Ruopp also attached King’s reports describing King’s two encounters with Thurman, and a page from the Marshall County Assessor’s website. The attached website page pictured and described a two-story frame house at 1035 Zeller Avenue.
An Iowa magistrate judge issued a search warrant for the premises described in the application. Officers then searched the frame house, and they discovered several firearms and ammunition. [ii]
Thurman was indicted on federal weapons charges, and he filed a motion to suppress the evidence discovered during the execution of search warrant. The district court denied the motion, and Thurman was convicted by a jury.
Thurman appealed the denial of his motion to suppress to the Eighth Circuit Court of Appeals. At the outset, the court noted that Thurman was arguing that the frame house that was searched was not his house. The court of appeals, for the sake of the appeal, first stated that they would assume (without deciding) that Thurman possessed a reasonable expectation of privacy in the home that he now claims was not his. [iii] This is important, because, if he did not have a reasonable expectation of privacy in this home, he would not have standing to argue a Fourth Amendment violation at the home.
On appeal, Thurman first argued that the there was insufficient probable cause to believe that evidence of a crime would be located in the frame house and that he possessed that house. The court of appeals held that there was a sufficient basis for the magistrate that issued the warrant to conclude that probable cause present in this case. For example, Thurmond, when speaking to the conservation officer, stated that he had firearms in his house and he pointed toward the frame house. Further, the tax assessor’s records indicated that the frame house was owned by Thurman’s father. Thus, Thurman’s status as a convicted felon, plus his admission that he possessed pistols in “his” house provided sufficient probable cause for the search warrant.
Thurman also argued that the warrant did not identify the source and basis for the belief that Thurman possessed the frame house at issue. However, the court of appeals stated
Even assuming, moreover, that the warrant application was technically deficient for failing adequately to identify the source and basis of the assertion that Thurman “possessed” the two-story frame house, it is clear that the searching officers acted in objectively reasonable good-faith reliance on the warrant… when assessing whether officers acted in objectively reasonable good-faith reliance on a warrant, we consider in this circuit the totality of the circumstances, including what the affiant knew but did not include in the application for the warrant… In this case, Detective Ruopp knew from Officer King that when Thurman stated that he had a couple of pistols, Thurman pointed to the two-story frame house, not to the mobile home. This additional information bolsters the officers’ good-faith reliance on the warrant. [iv]
Lastly, Thurmond argued that the address of the framed house at issue was actually 1025 Zeller as opposed to 1035 as it was listed on the search warrant. As such, he argued that the search warrant should be held “invalid” since it did not particularly describe the place to be searched. To this issue, the court of appeals first noted that the “particularity” requirement refers to “’practical accuracy’ rather than a hypertechnical” accuracy.” [v] The court of appeals then stated
[A]n incorrect street address of the place to be searched is not necessarily fatal. Instead, [w]here one part of the description of the premises to be searched is inaccurate, but the description has other parts which identify the place to be searched with particularity, searches pursuant to such warrants have been routinely upheld. [vi] [internal quotations omitted]
The court of appeals then applied the facts of Thurman to the rule above and stated
Here, the warrant contained sufficient information to identify the particular frame house at issue as the premises to be searched. The warrant directed law enforcement officers to a specific location on Zeller Avenue, one and two-thirds mile north of Highway 96. Once the officers arrived at this general area, there was a mobile home and a two-story frame house roughly 200 yards apart. The area was rural, with only one other residence within a one block mile. Although the officers were confronted with a green sign near the frame house labeled “1025,” which conflicted with the address of “1035” on the warrant, the warrant identified the place to be searched as a two-story framed residential dwelling, and this specification ensured that officers would enter the correct premises at the Zeller Avenue location. [vii]
Therefore, the Eighth Circuit affirmed the denial of the motion to suppress.
NOTE: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
SEE RELATED ARTICLES:
Search Warrants: Mistakes Can Be Prevented (Includes Free Search Warrant Checklist)
Untruthful or Purposefully Misleading Information on Warrant Request (Legal Question 2007)
Service of Arrest Warrants at Third Party Premises (2009)
Consent Search by Co-Occupant: Georgia v. Randolph (2007)
Persons with Disabilities (2007)
Handling of the Mentally Ill and Emotionally Disturbed Persons (2007)
Use of Force in Dealing with the Mentally Ill and Emotionally Disturbed (2006)
[i] No. 09-3545, 2010 U.S. App. LEXIS 23933 (8th Cir. Decided November 22, 2010)
[ii] Id. at 2-4
[iii] Id. at 5 (citing Minnesota v. Carter, 525 U.S. 83, 88-90, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998))
[iv] Id. at 7-8 (internal citations omitted)
[v] Id. at 9 (citing United States v. Peters, 92 F.3d 768, 769-70 (8th Cir. 1996))
[vi] Id. at 9-10 (citing United States v. Ridinger, 805 F.2d 818, 819 (8th Cir. 1986))