                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-3-2005

USA v. Ritter
Precedential or Non-Precedential: Precedential

Docket No. 04-3489




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                                       PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 04-3489


      UNITED STATES OF AMERICA;
   GOVERNMENT OF THE VIRGIN ISLANDS,
                           Appellants

                        v.

                ERNIE RITTER;
                REGGY RITTER;
                 DALE RITTER


           Appeal from the District Court
                of the Virgin Islands
     (District Court Criminal No. 04-cr-00007)
      District Court Judge: Raymond L. Finch


              Argued: April 20, 2005

Before: NYGAARD*, RENDELL and SMITH, Circuit
                  Judges
*Honorable Richard L. Nygaard assumed senior status on
                     July 9, 2005

                  (Filed: August 3, 2005)

Bruce Z. Marshack
Office of the U.S. Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820

Richard A. Friedman [ARGUED]
U.S. Department of Justice, Room 1264
Criminal Division, Appellate Section
10 th Street & Constitution Avenue N.W.
Washington, DC 20530
   Counsel for Appellants
     United States of America;
     Government of the Virgin Islands

Jomo Meade [ARGUED]
112 Queen Cross Street
Frederiksted, St. Croix
USVI, 00840
  Counsel for Appellee Ernie Ritter

Martial A. Webster
116 Queen Cross Street
Frederiksted, St. Croix
USVI, 00851
  Counsel for Appellee Reggy Ritter

                              -2-
(continued)

Thurston T. McKelvin [ARGUED]
Kirsten G. Downs
Office of Federal Public Defender
P.O. Box 223450
Christiansted, St. Croix
USVI, 00822
  Counsel for Appellee Dale Ritter




                 OPINION OF THE COURT




RENDELL, Circuit Judge.

       The United States of America and the Government of the
Virgin Islands (collectively, the “government”) appeal from the
order of the District Court of the Virgin Islands granting
brothers Ernie, Reginald and Dale Ritter’s motion to suppress
physical evidence. We will vacate the order of the District
Court and remand for further findings consistent with this
opinion.




                             -3-
                       I. B ACKGROUND

A.     Facts

        In August of 2002, while conducting aerial surveillance,
Officer Christopher Howell of St. Croix, Virgin Islands,
working jointly with the Federal Drug Enforcement
Administration High Intensity Drug Trafficking Area Task
Force (“Task Force”), observed marijuana growing in a roofless
stable at the rear of a house in Fredericksted, St. Croix. A man
could be seen tending the plants. Officer Howell notified Task
Force ground units, who entered the premises without a warrant,
destroyed the growing marijuana plants and apprehended the
gardener. The gardener admitted cultivating and tending the
plants but denied residing in the house; no charges were filed
against him. Three additional plots of marijuana plants growing
in a field behind the house were also discovered and destroyed
during the raid.

        The following Spring, on April 24, 2003, Officer Howell
received the first of two anonymous calls relating to the property
previously surveilled and indicating that its residents were
growing marijuana on the premises. The unidentified female
caller advised Officer Howell that the “occupants of the house”
– no names were provided – were growing marijuana “to the
rear of their residence.” She advised that there were “‘hundreds
of plants’ located in the horse stables and the field adjacent to



                              -4-
the stables.” (Howell Affidavit.) Officer Howell noted the
information but took no immediate action.

        Two weeks later, on May 7, 2003, Officer Howell
received a second call. Again, the caller remained anonymous,
but Officer Howell testified that he believed it to be the same
person who had placed the April call. The second call provided
additional information: the informant repeated the allegation that
marijuana was being grown in the back of the residence but
added that she had personally observed someone carrying plants
into the house, and she had heard from another person that there
were at least two indoor grow rooms inside the house. The
tipster, however, did not name or describe any of the residents
of the house, nor did she indicate precisely where in the house
plants were growing. Officer Howell did not remember asking
for more specific information.

       Following the second call, Officer Howell immediately
applied for a warrant, basing his affidavit in support of probable
cause on both the 2002 raid and the information provided by the
anonymous tipster. Other than to draw upon his previous
experience in 2002, Officer Howell did not undertake any
additional corroborative investigation to determine, inter alia,
how many individuals resided in the house at issue. The
affidavit identified the property by reference to an aerial




                              -5-
photograph (“Attachment ‘A’”),1 which shows a large main
structure or residence with at least two outside doors visible,
along with two additional structures on the premises. The
warrant subsequently issued by the Magistrate Judge identified
the premises to be searched as “No known number New Street
Frederiksted St. Croix U.S.V.I. further pictured on Attachment
‘A’”,2 and authorized the government to search for “marijuana
and items used to process, and facilitate the growing of
marijuana, i.e., lighting, air-conditioning units, ventilation units,
scales and packaging materials.”

       Howell was one of many law enforcement officers
present for the execution of the warrant the following day.
However, at the suppression hearing before the District Court,




      1
    At no time have the parties disputed that Attachment “A”
features the Ritters’ property and is the same property that was
the subject of the 2002 raid initiated by Officer Howell’s aerial
surveillance.
  2
   The parties now agree that the property’s correct description
is 87 Mars Hill. However, Officer Howell testified that Mars
Hill “is part of New Street” and that confusion as to addresses
on the island illustrated the need to attach a photograph of the
premises to be searched.

                                -6-
he was the only witness to testify regarding the raid.3 Officer
Howell explained that those present on the scene included
various “teams” – entry teams (who conduct an initial sweep of
the premises for people), perimeter teams (who secure the
perimeter) and search teams (who conduct a more thorough
search and actually seize evidence). At some point during the
warrant’s execution, entry team members, who were the first to
infiltrate the premises, realized that the property’s main structure
was not a single dwelling but, rather, consisted of at least four
separate apartments. The record indicates that each of the
defendant brothers – Ernie, Dale and Reginald – occupied
separate apartments, although it is not clear which of the
brothers, other than Dale, was home at the time of the raid.
 Despite the discovery of multiple units in the residence, after
the entry teams finished their preliminary sweep, search teams
were sent in to more thoroughly search the premises and collect
evidence. While the record does not make clear whether Officer
Howell even entered the house, he testified as to the evidence
observed and seized inside.4




   3
    Only two witnesses testified in total – Howell and Andre
Peterson, an investigator for the Office of the Public Defender.
  4
    Howell himself was on a perimeter team. He described his
responsibility as the “affiant on the search” by stating: “You
might say that I, I decided who would do what during the course
of the search.”

                               -7-
       Howell’s testimony concerning the sequence of events is
imprecise, but ultimately, marijuana, guns and cash were
collected from various locations within the building, including
the brothers’ respective apartments. As predicted by the
anonymous tipster, two indoor grow rooms, one downstairs and
one upstairs, were discovered. Marijuana was also found
growing in at least two more areas either in or outside the home.
In addition, a rifle was found either laying or hanging on the bed
of Ernie Ritter along with a second gun in his closet; money and
drugs were found in the oven or broiler of Dale Ritter; and
marijuana was discovered on Dale Ritter’s person after a pat-
down by officers.

B.       District Court Proceedings

       The District Court granted the defendants’ motion to
suppress all physical evidence.5 Although the District Court
rejected defendants’ contentions that the warrant was not
supported by probable cause and that it failed to adequately
describe the location to be searched, the Court found that, based
on what the officers discovered as to the true character of the
residence, the warrant did not describe with particularity the
place to be searched. Citing to the Supreme Court’s opinion in
Maryland v. Garrison, the District Court held that the warrant



     5
    The motion was filed by defendant Ernie Ritter, and then
joined by his brothers Reginald and Dale Ritter.

                              -8-
was facially deficient – in other words, the entry teams’
discovery of multiple units inside the residence had essentially
functioned to retroactively invalidate the search warrant. 480
U.S. 79, 86-87 (1987). According to the District Court, Howell
and his fellow officers enjoyed a “windfall” but should not have
acted upon it – “Once the police officers realized the building
was a multi-unit dwelling, the Court holds that the search
warrant was defective for failing to specify which unit(s) were
to be searched.”

       The government contended that the warrant should
nonetheless be deemed sufficient because the “good faith”
exception should have applied. The District Court rejected this
argument, noting that there are four situations in which the
general presumption of good faith, which generally attaches
based on the mere issuance of a warrant, is negated:

       (1) [when] the magistrate [judge] issued the
       warrant in reliance on a deliberately or recklessly
       false affidavit;

       (2) [when] the magistrate [judge] abandoned his
       judicial role and failed to perform his neutral and
       detached function;

       (3) [when] the warrant was based on an affidavit
       “so lacking in indicia of probable cause as to



                              -9-
       render official belief in its existence entirely
       unreasonable”; or

       (4) [when] the warrant was so facially deficient
       that it failed to particularize the place to be
       searched or the things to be seized.

U.S. v. Hodge, 246 F.3d 301, 308 (3d Cir. 2001) (citation
omitted). Based on the warrant’s failure to particularize the
place to be searched, the District Court found the warrant
facially defective and based on the fourth factor above, declined
to apply the good faith exception. “When the police officers
realized that there were multiple dwelling units and the search
warrant gave them no guidance as to which unit(s) were to be
searched, the police officers could not be said to have been
executing the warrant in good faith by subsequently searching
at least four different residential units.” All evidence seized
pursuant to the search warrant, the District Court thus
concluded, should be suppressed.

                        II. A NALYSIS

A.     Jurisdiction and Standard of Review

      The District Court had jurisdiction under 48 U.S.C.
§ 1612; we have jurisdiction over this government appeal
pursuant to 18 U.S.C. § 3731.



                             - 10 -
       On a motion to suppress, the government bears the
burden of showing that each individual act constituting a search
or seizure under the Fourth Amendment was reasonable. United
States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). With
respect to a suppression order, we review the District Court’s
factual findings for clear error, see United States v. Roberson,
90 F.3d 75, 77 (3d Cir. 1996) (citing Ornelas v. United States,
517 U.S. 690, 699-700 (1996)), and exercise plenary review
over its legal determinations, see United States v. Coggins, 28
V.I. 241, 986 F.2d 651, 654 (3d Cir. 1993). However, w hen a
district court, in reviewing a magistrate’s determination of
probable cause, bases its probable cause ruling on facts
contained in an affidavit, we exercise plenary review over the
district court’s decision. United States v. Conley, 4 F.3d 1200,
1204 (3d Cir. 1993) (citations omitted). In contrast, both our
court and the district court exercise a deferential review of the
magistrate’s initial probable cause determination. Id. at 1205
(citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).

B.     Discussion

       The Fourth Amendment of 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 Warrants 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.” U.S. Const. amend. IV. The right of

                             - 11 -
security in person and property afforded by the Fourth
Amendment may be invaded in various different ways by
searches and seizures – here, defendants challenge the
magistrate’s issuance of the warrant as well as the government’s
execution of that warrant; however, “[i]t must always be
remembered that what the Constitution forbids is not all
searches and seizures, but unreasonable searches and seizures,”
Elkins v. United States, 364 U.S. 206, 222 (1960).



       1.     Probable Cause

       The threshold requirement for issuance of a warrant is
probable cause. However, in reviewing the issuance of a
warrant and given the historic preference expressed by our
courts for the warrant process, see Johnson v. United States, 333
U.S. 10, 13-14 (1948), we are to determine whether the
magistrate had a “substantial basis” for concluding that probable
cause was present, Illinois v. Gates, 462 U.S. 213, 236 (1983).
“[T]he Fourth Amendment requires no more.” Id. T he District
Court, viewing the “totality of the circumstances,” id., and
deferring to a principle oft articulated by this Court – that
“after-the-fact scrutiny should not take the form of de novo
review,” see, e.g., United States v. Ninety-Two Thousand Four
Hundred Twenty-Two Dollars and Fifty-seven Cents ($
92,422.57), 307 F.3d 137, 146 (3d Cir. 2002) (quoting Gates,
462 U.S. at 235) – could “not find that the search warrant
application was devoid of probable cause,” notwithstanding

                             - 12 -
Officer Howell’s admission that he did nothing to
independently corroborate the anonymous caller’s tips. This
conclusion, we think, requires discussion.

       Ernie and Reginald Ritter claim on appeal that the
District Court erred in concluding that there existed probable
cause to support the magistrate judge’s issuance of a warrant.6
They assert that Officer Howell’s affidavit was based on
nothing more than uncorroborated anonymous tips and that such
information does not form an adequate basis for the issuance of
a warrant under Gates and its progeny. 462 U.S. at 233
(replacing two-prong test with a “totality of the circumstances”
approach for determining if an informant’s tip established
probable cause). The government counters that Howell’s
affidavit appropriately incorporated his past personal experience
of having seized marijuana from the property in question in
2002 to corroborate the more recent anonymous tips. To some
extent, we think, both parties’ assertions have merit.


  6
    It is “well established that the prevailing party below need
not cross-appeal to entitle him to support the judgment in his
favor on grounds expressly rejected by the court below.” Swarb
v. Lennox, 405 U.S. 191, 202 (1972) (White, J., concurring)
(citing Walling v. Gen. Indus. Co., 330 U.S. 545 (1947)).
Because the Ritters have attacked on appeal the District Court’s
reasoning, not the result achieved, they are not barred from re-
visiting the probable cause issue here. See Mass. Mut. Life Ins.
Co. v. Ludwig, 426 US 479 (1976).

                             - 13 -
        On the one hand, a warrant may issue even in the absence
of direct, first-hand evidence. See United States v. Burton, 288
F.3d 91, 103 (3d Cir. 1992) (noting that “direct evidence linking
the residence to criminal activity is not required to establish
probable cause”); United States v. Jones, 28 V.I. 375, 994 F.2d
1051, 1056 (3d Cir. 1993) (“While ideally every affidavit would
contain direct evidence linking the place to be searched to the
crime, it is well established that direct evidence is not required
for the issuance of a search warrant.”). Gates requires that a
court considering the sufficiency of an agent’s affidavit look at
the “totality of the circumstances,” and, in employing this
flexible standard, the Supreme Court has explained that the
“task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and
‘basis of knowledge’ of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Id. at 238-39 (citations
omitted). In other words, an issuing court need only conclude
that it would be reasonable to seek the sought-after objects in
the place designated in the affidavit; a court need not determine
that the evidence is in fact on the premises. See Conley, 4 F.3d
at 1205 (“Keeping in mind that the task of the issuing magistrate
is simply to determine whether there is a ‘fair probability that
contraband or evidence of a crime will be found in a particular
place’ . . . a reviewing court is to uphold the warrant as long as
there is a substantial basis for a fair probability that evidence
will be found.”) (quoting Gates, 462 U.S. at 238)).

                              - 14 -
        On the other hand, however, in Alabama v. White, 496
U.S. 325 (1990), where the Supreme Court adopted the “totality
of the circumstances” test to determine whether an anonymous
tip could provide reasonable suspicion for a Terry stop,7 the
Court stressed two factors: (1) an officer’s ability to corroborate
significant aspects of the tip, and (2) the tip’s ability to predict
future events. Where corroboration or independent investigation
after receipt of an anonymous tip is lacking – and thus the
predictive value of the tip goes untested before a warrant is
issued – courts have found officers’ subsequent reliance on the
warrant unreasonable. See, e.g, United States v. Wilhelm, 80
F.3d 116, 121-22 (4th Cir. 1996) (reliance unreasonable
because magistrate acted as rubber stamp by approving “bare
bones” affidavit based solely upon uncorroborated anonymous
tip); United States v. Weaver, 99 F.3d 1372, 1380 (6th Cir.
1996) (reliance unreasonable because detective had no personal
knowledge of unlawful activity, did not conduct any visual
reconnaissance of area, had only third-party hearsay information
on marijuana-growing operation on property, and detective
executed warrant himself).

     Here, like the officer-affiants in these cases, Officer
Howell, after receiving an anonymous tip call, made no attempt


  7
   A Terry stop, of course, requires only reasonable suspicion,
see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868
(1968), a less demanding level of suspicion than is required to
establish probable cause.

                               - 15 -
to verify the informant’s allegations through further independent
investigation. But, unlike the officers in those cases, Howell did
have arguably relevant previous experience with the property in
question and included this “historical information [regarding]
the previous seizure in August 2002” in his affidavit. The
question is whether this experience was sufficiently
corroborative so as to give the tip predictive value. It could be
said that the connection to the previous raid was tenuous in
terms of actual corroboration – it occurred seven months before,
the marijuana was being grown in the stable area, the person
apprehended was the gardener who apparently did not live on
the premises, and there appears to have been no direct
connection to the house or its inhabitants. However, Officer
Howell’s previous observation, the similarity of the type of
offense, the fact that the current tip involved both the house and
the surrounding outdoor area, and the logical inference that the
gardener might have been authorized by the inhabitants of the
house to grow the marijuana, all point to the plausible
relationship between the previous event and the tip. We can see
how an officer and a magistrate could view the tip as
establishing an identifiable pattern of activity on the premises.

       This is a close case. Were we reviewing the magistrate’s
decision de novo, we might reach a different result. However,
the Supreme Court has charged us, when reviewing the
sufficiency of an affidavit and resulting warrant, not to engage
in “after-the-fact scrutiny” that “take[s] the form of de novo
review.” Gates, 462 U.S. at 235. Moreover, we review for a

                              - 16 -
“substantial basis” for concluding that probable cause existed,
id. at 236 (citation omitted), which is one step removed from a
directed probable cause inquiry applicable when reviewing
warrantless stops and searches. 8 Here, the deferential standard
with which we view the magistrate’s initial probable cause
determination tips the scale in favor of determining that the
magistrate had a “substantial basis” for finding probable cause
existed. In so concluding, we are mindful of the Supreme
Court’s consistent admonitions over the course of the last half
century regarding our preference for warrants and the nature of
our task in reviewing warrants issued by judicial officers:

       The point of the Fourth Amendment . . . is not
       that it denies law enforcement the support of the
       usual inferences which reasonable men draw from
       evidence. Its protection consists in requiring that
       those inferences be drawn by a neutral and
       detached magistrate instead of being judged by
       the officer engaged in the often competitive


 8
   Judge Smith raises excellent questions regarding the reliance
Officer Howell placed on anonymous tips which we might find
persuasive if we were conducting a de novo review for probable
cause as was the situation, for example, in the case Judge Smith
finds analogous, United States v. Roberson, 90 F.3d 75, 77 (3d
Cir. 1996). However, we are reviewing deferentially for
substantial basis for a magistrate’s conclusion that probable
cause existed.

                             - 17 -
       enterprise of ferreting out crime. Any assumption
       that evidence sufficient to support a magistrate’s
       disinterested determination to issue a search
       warrant will justify the officers in making a
       search without a warrant would reduce the
       Amendment to a nullity and leave the people’s
       homes secure only in the discretion of police
       officers. . . . When the right of privacy must
       reasonably yield to the right of search is, as a rule,
       to be decided by a judicial officer, not by a
       policeman or government enforcement agent.

Johnson v. United States, 333 U.S. at 13-14.

       A magistrate’s “determination of probable cause
       should be paid great deference by reviewing
       courts.” Spinelli [v. United States, 393 U.S. 410,
       419 (1969)]. “A grudging or negative attitude by
       reviewing courts toward warrants,” is inconsistent
       with the Fourth Amendment’s strong preference
       for searches conducted pursuant to a warrant;
       “courts should not invalidate [warrants] by
       interpreting [affidavits] in a hypertechnical, rather
       than a commonsense, manner.”

Gates, 462 U.S. at 236 (quoting and United States v. Ventresca,
380 U.S. 102, 108, 109 (1965)). The Supreme Court has clearly
indicated that the conclusions of a neutral magistrate regarding

                               - 18 -
probable cause are entitled to a great deal of deference by a
reviewing court, and the temptation to second-guess those
conclusions should be avoided. Gates, 462 U.S. at 236.
Accordingly, we find the issuance of the warrant to have been
proper.    Acknowledging the susceptibility to attack of
anonymous tips when dissected de novo – as Judge Smith
forcefully urges – we note that even if the issuance of the
warrant were faulty under the appropriate standard, Officer
Howell’s reliance on it is clearly not subject to attack, United
States v. Leon, 468 U.S. 897 (1984), as Judge Smith readily
concedes.

       2.     Particularity Requirement

        Apart from requiring probable cause, the warrant clause
of the Fourth Amendment also unambiguously requires that
warrants must particularly describe “the place to be searched,
and the persons or things to be seized.” U.S. Const. amend. IV.
  The particularity requirement not only prevents general
searches, but also “assures the individual whose property is
searched or seized of the lawful authority of the executing
officer, his need to search, and the limits of his power to
search.” United States v. Chadwick, 433 U.S. 1, 9 (1977)
(citation omitted).

      Here, relying on the Supreme Court’s decision in
Maryland v. Garrison, the District Court concluded that the
government’s discovery of multiple dwellings on defendants’

                             - 19 -
property retroactively invalidated the warrant – in essence,
rendered the warrant defective from the start for failure to
particularize the place to be searched. While we agree that
Maryland v. Garrison controls the instant issue, we disagree
with the District Court’s interpretation and use of that case to
grant defendants’ motion.

        In Garrison, Baltimore police officers obtained and
executed a warrant to search the person of Lawrence McWebb
and “the premises known as 2036 Park Avenue third floor
apartment.” Id. at 80. When the police applied for the warrant
and when they conducted the search pursuant to the warrant,
they reasonably believed that there was only one apartment on
the premises, McWebb’s, located on the third floor as described
in the warrant.      A preliminary investigation had been
undertaken, which included making calls to the utility company
to confirm that the third floor had only one dwelling. Id. In
fact, the third floor was divided into two apartments, one
occupied by McWebb and one by Garrison. When police
arrived at the vestibule of the third floor of the building to
execute the warrant to search McWebb’s apartment, they were
able to see into both McWebb’s apartment to the left and
Garrison’s to the right, as the doors to both were open. It was
only after Garrison’s apartment was entered and contraband had
been discovered that any of the officers realized that the third
floor contained two apartments; up until that point, all of the
officers reasonably believed that they were searching McWebb’s



                             - 20 -
apartment. “As soon as they became aware of that fact, the
search was discontinued.” Id. at 79.

        At the outset, the Garrison Court noted that “the case
presents two separate constitutional issues, one concerning the
validity of the warrant and the other concerning the
reasonableness of the manner in which it was executed.” 480
U.S. at 80.     In the case before us, the District Court concluded
that the officers’ discovery of multiple units inside defendants’
residence retroactively invalidated the warrant for lack of
particularity. “Once the police officers realized the building was
a multi-unit dwelling, the Court holds that the search warrant
was defective for failing to specify which unit(s) were to be
searched.” But, in Garrison, the Supreme Court directs us to
perform a different analysis. In fact, it rejects the concept of
retroactive invalidity that was the basis for the District Court’s
order granting defendants’ suppression motion and instructs us,
instead, to examine the reasonableness of the warrant’s
execution.

       Similar to the circumstances present in Garrison, here,
there came a point in the execution of the warrant when the
officers “[w]ith the benefit of hindsight [knew] that the
description of [the place to be searched] was broader than
appropriate because it was based on the mistaken belief that
there was only one [dwelling on defendants’ property].”
Garrison, 480 U.S. at 85. “The question is whether that factual
mistake invalidated a warrant that undoubtedly would have been

                              - 21 -
valid if it had reflected a completely accurate understanding of
the building’s floor plan.” Id. Considering this question, the
Supreme Court answered in the negative, emphasizing that the
constitutionality of police officers’ conduct in the execution of
the warrant – not the validity of the warrant – is the crucial
issue, and it must be judged “in light of the information
available to them at the time they acted.” Id.

       Those items of evidence that emerge after the
       warrant is issued have no bearing on whether or
       not a warrant was validly issued. Just as the
       discovery of contraband cannot validate a warrant
       invalid when issued, so is it equally clear that the
       discovery of facts demonstrating that a valid
       warrant was unnecessarily broad does not
       retroactively invalidate the warrant. The validity
       of the warrant must be assessed on the basis of the
       information that the officers disclosed, or had a
       duty to discover and to disclose, to the issuing
       Magistrate.

Id. (footnote omitted) (emphasis added). The Garrison Court
thus concluded that a search warrant, “insofar as it authorize[s]
a search that turn[s] out to be ambiguous in scope,” will,
nevertheless, be upheld against a particularity challenge if the
warrant described the structure as it was known or should have
been known to the officers after reasonable inquiry under the
circumstances. Id. at 86. Therefore the District Court’s

                              - 22 -
suppression order cannot be upheld on the basis of its proffered
reasoning that the officers’ discovery of multiple units within
the residence invalidated the warrant. Accordingly, as directed
by Garrison, we must evaluate the officers’ conduct in carrying
out the warrant.

       3.     Execution of the Warrant

        Although the officers lawfully embarked upon the search
of the premises with a warrant supported by probable cause, did
there come a time when their execution went beyond what the
warrant permitted and, thus, ran afoul of the Fourth
Amendment’s prohibition of unreasonable searches? Garrison
necessarily informs this inquiry. From the Supreme Court’s
opinion in that case, several relevant principles can be distilled,
all of which focus on the conduct of a reasonable officer and the
reasonableness of his belief as to whether the search at issue is
proceeding beyond the four corners of the warrant.

       First, if the officers had known, or should have known,
that there were separate dwellings contained in the property
pictured in Attachment “A” to Officer Howell’s affidavit, they
would have “been obligated to exclude [those areas for which
probable cause was not established] from the scope of the
requested warrant.” 480 U.S. at 85. Officer Howell testified
that the multi-unit nature of defendants’ residence was not
known to officers prior to execution of the warrant. Second,
mere entry into the building’s common areas was reasonable and

                              - 23 -
lawful because the officers carried a valid warrant authorizing
entry upon the premises. Id. at 86. As discussed above, the
warrant to search defendants’ residence was valid and it is
undisputed that the warrant was directed specifically toward the
property that officers did in fact enter. Third, once the officers
knew or should have known of the error in what they
encountered versus what was authorized by the warrant, they
were obligated to either limit the search to those areas clearly
covered by the warrant or to discontinue entirely their search.
Id. at 87.9 Here, notwithstanding their discovery of multiple


    9
      Insofar as the warrant at issue in Garrison named an
individual as opposed to merely listing an address, the facts of
our case clearly differ. Under the facts of Garrison, the
Supreme Court recognized that officers, depending upon when
the error is discovered, will either have to limit their search
(which assumes the warrant’s mistake is noticed before entry
into an unrelated area) or discontinue the search (assuming, as
was the case in Garrison, that officers have already mistakenly
undertaken a search of premises outside the scope of the
warrant). In the instant case, where there are multiple
defendants and generalized probable cause to search a property
as opposed to a specific individual’s apartment, the lines are not
so clearly delineated. See People v. Luckett, 273 Ill. App. 3d
1023, 1028 (1995) (“[T]he probable cause requirement would
be rendered virtually meaningless if police could legally search
several living units upon a mere showing that one of the units,
not specifically identified, contained the contraband sought.”)
(citing United States v. Busk, 693 F.2d 28 (3d Cir. 1982)).

                              - 24 -
units, the officers did not limit or discontinue their search. This
does not necessarily, however, result in suppression of all
physical evidence discovered during the course of the entire
search. The Garrison Court’s ultimate directive remains salient:
“The officers’ conduct and the limits of the search [are] based
on the information available as the search proceed[s].” Id. This
principle, along with a recognition of “the need to allow some
latitude for honest mistakes that are made by officers in the
dangerous and difficult process of making arrests and executing
search warrants,” Garrison, 480 U.S. at 87 (footnote omitted),
is what must guide us in determining if and when the execution
went awry.

        The government argues that any evidence discovered
before the realization by officers that defendants’ residence
comprised multiple units should not be suppressed but concedes
that “once the officers discovered that the house had multiple
dwelling units, they could no longer rely on the warrant to
justify their search of the building.” (Brief of Appellant at 17.)10
We agree. However, the government itself points out, “It is not
clear from the record [] what evidence apart from the two
marijuana-growing rooms and mini-14 assault rifle was


  10
    Nevertheless, the government states that it is preserving its
right to argue on remand that some exception to the warrant
requirement, such as exigent circumstances, justified the
continued search of defendants’ individual apartments. (Brief
of Appellant at 17.)

                               - 25 -
discovered in the house before the officers realized that the
house had multiple dwelling units.” (Brief of Appellant.)
Again, we agree, but would go further, as we are not even
certain that the evidence to which the government refers was
viewed before the officers realized they were in a multi-unit
property. The District Court’s order granting defendants’
suppression motion does not include any factual findings on
which we could make such a determination on appeal. Nor does
our reading of the cold record elucidate exactly what happened,
and when, during the execution of the warrant. That which the
District Court finds that members of the entry team observed in
the shared or common areas of defendants’ residence – before
they concluded that the residence actually comprised multiple
apartments – will dictate what evidence, if any, should avoid
suppression.11 We cannot discern such determinative facts from
the record, and we will REMAND to the District Court for
further fact-finding in this regard.



 11
    In addition, although the entry teams’ function was to sweep
the premises to determine whether any persons were present,
rather than conduct a thorough search for contraband, certainly
team members were not oblivious to evidence in plain view. For
example, two weapons were seized from Ernie Ritter’s
apartment – one from the closet, which clearly should be
suppressed, and one that was either laying on the bed or hanging
on the bedpost, which might have been plainly visible to officers
from a lawful vantage point and thus would not necessarily
require suppression.

                             - 26 -
        However, just as “we do not supply the testimony that the
government failed to elicit during the suppression hearing,”
United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002), the
government should not be afforded a second opportunity to
carry its burden that the challenged evidence should not be
suppressed. Accordingly, the government must live with its
decision to offer only one witness – Officer Howell – to make
a record of the events of May 8, 2003. Based on his testimony,
and that of defendants’ witness, Andre Peterson, the District
Court, assuming it can do so from the evidence already before
it, must make factual findings consonant with both the Supreme
Court’s decision in Garrison and this opinion. Should the
District Court need further elucidation or clarification, however,
in light of our analysis and given the passage of time, it may on
remand request that the witnesses previously called testify once
again in order for the Court to make the requisite findings.

       4.     Other Evidence Seized and Suppressed

       We now turn to the additional conclusions of law made
by the District Court regarding defendant Dale Ritter’s claims
that 1) the scope of the search warrant was exceeded by the
government’s search of his oven and broiler and 2) he should
not have been patted down absent reasonable suspicion that he
was armed and dangerous. As to the first claim, the District
Court determined that the issue was moot based on its
conclusion that the entire search was unlawful. Under Garrison,
however, only that evidence seized after officers have

                              - 27 -
discovered the multi-unit character of the premises should be
suppressed. Here, again, we need the District Court to make
factual findings. Officer Howell testified that “there was a trail
of the marijuana leading from the front of the residence to the
oven,” but, when counsel asked him if that trail was what led
officers to look in the broiler for money, Officer Howell
reiterated, “Again, I didn’t search it, the agent that did would be
better, be a better one to ask these questions.” We will
REMAND for the District Court to make findings and render
conclusions on this issue based on the evidence presently in the
record and Officer Howell’s credibility.

        Second, the District Court agreed with defendant Dale
Ritter that the marijuana discovered on his person as a result of
a patdown should be suppressed. The Court reasoned that,
under Ybarra v. Illinois, 444 U.S. 85, 92-93 (1979), the officers
needed reasonable suspicion that Dale Ritter was armed and
dangerous, of which the government offered no proof. In
Ybarra, police officers, who had obtained a warrant to search a
tavern and its owner for evidence of drugs, announced upon
entering the tavern that all present would be subject to a
“cursory search for weapons.” 444 U.S. at 88. One of the
officers frisked the defendant and felt “a cigarette pack with
objects in it”; after frisking other patrons, the officer returned to
the defendant, removed the cigarette pack from defendant’s
pocket and found it to contain heroin. Id. at 88-89. In
reviewing the constitutionality of the defendant’s patdown, the
Supreme Court explained:

                               - 28 -
The Terry case created an exception to the
requirement of probable cause, an exception
whose “narrow scope” this Court “has been
careful to maintain.” Under that doctrine a law
enforcement officer, for his own protection and
safety, may conduct a patdown to find weapons
that he reasonably believes or suspects are then in
the possession of the person he has accosted.
Nothing in Terry can be understood to allow a
generalized “cursory search for weapons” or,
indeed, any search whatever for anything but
weapons. The “narrow scope” of the Terry
exception does not permit a frisk for weapons on
less than reasonable belief or suspicion directed at
the person to be frisked, even though that person
happens to be on premises where an authorized
narcotics search is taking place.




                       - 29 -
Id. at 93-94 (footnote and citation omitted).12 At the suppression
hearing in this case, Office Howell testified that when people
are encountered on the premises of property to be searched
during the course of executing a search warrant, usually they are
“secured” and “padded [sic] down for weapons” primarily to
ensure officers’ safety. Though he was not in the area where
Dale Ritter was apparently patted down, which Officer Howell
described as “more towards the front,” Howell testified that he
assumed Dale Ritter had been patted down for this reason.
Under Ybarra, this “cursory search for weapons” clearly is not
permitted absent a reasonable belief or suspicion that an
individual encountered is armed, 444 U.S. at 88, 96. Therefore,
the evidence discovered on Dale Ritter’s person should be
suppressed. See also Doe v. Groody, 361 F.3d 232, 243 (3d Cir.
2004) (“A search warrant for a premises does not constitute a
license to search everyone inside.”). We will AFFIRM this
aspect of the District Court’s order.



    12
       In so concluding, the Supreme Court also rejected the
government’s alternative argument that, based on governmental
interest in “effectively controlling traffic in dangerous, hard
drugs,” the Terry “reasonable belief or suspicion” standard
should be made applicable “to aid the evidence-gathering
function of the search warrant” such that persons present on
“compact” areas to be searched can be searched for drugs based
on reasonable suspicion they are somehow connected with drug
trafficking. Ybarra, 444 U.S. at 343-44 (citing United States v.
Di Re, 332 U.S. 581, 583-587 (1948)).

                              - 30 -
        Finally, the government argues that evidence seized from
“the stable” and “elsewhere on the grounds” was lawful
notwithstanding the discovery of multiple units inside the house.
(Brief of Appellant at 17.) Because the record is devoid of
details concerning the discovery of this additional evidence, we
will REMAND for further fact-finding by the District Court.



                      III. C ONCLUSION

       The search undertaken in reliance on the warrant issued
was reasonable. Notwithstanding the subsequent discovery of
a factual mistake in the warrant concerning the number of
individual dwellings comprised by the residence, under
Maryland v. Garrison, the warrant was not defective for lack of
particularity

       However, we will REMAND this case for further fact-
finding relating to the government’s execution of the warrant.
Although it is clear that law enforcement officers did not limit
or discontinue their search of defendants’ individual apartments
as Garrison would require, certain evidence observed as a result
of officers’ valid entry onto the premises may be admissible if
the District Court can make findings as to evidence observed
before entry into individual apartments – whether in common
areas or pursuant to the plain view doctrine – while the police
had a reasonable belief that the search was in compliance with
the warrant.

                             - 31 -
       Additional fact-finding is also required to resolve both
the discovery of contraband outside the residence – in the stable
and “elsewhere on the grounds,” and Dale Ritter’s claim that
evidence seized from his oven and broiler should be suppressed.

      We will AFFIRM the District Court’s determination that
the marijuana discovered on Dale Ritter’s person pursuant to a
patdown should be suppressed under Ybarra v. Illinois.

_________________




                             - 32 -
SMITH, Circuit Judge, dissenting in part and concurring in the
judgment.

        Because I believe that even under a deferential standard
of review, the magistrate judge’s probable cause determination
should not stand, I dissent from the portion of the majority’s
opinion validating the issuance of the warrant. However,
because under the rule of United States v. Leon Officer Howell
could reasonably rely on the invalid warrant, I reach the same
result as the majority: Before they discovered that the building
to be searched contained multiple apartments, the conduct of
Howell and the other warrant-executing officers did not violate
the Fourth Amendment.

       Unlike the majority, I do not view this as a “close case,”
where our deferential review “tips the scale in favor” of
validating the magistrate’s finding of probable cause. This is
not a marginal case of probable cause that should be governed
by a preference for warrants. See United States v. Ventresca,
380 U.S. 102, 109 (1965). Rather, under the precedent of the
Supreme Court and this Court, I am doubtful that the affidavit
even supports a finding that reasonable suspicion existed, much
less probable cause. In my view, the majority’s analysis in
concluding that the warrant was properly issued is flawed in two
ways. First, the majority does not discount for staleness the
information contained in Howell’s May 2003 affidavit regarding

                             - 33 -
the August 2002 eradication project. Second, and more
fundamentally, by crediting Howell’s supposed corroboration of
a “bare bones” anonymous tip – i.e., a tip consisting only of
conclusory allegations of illegality – the majority misapplies the
anonymous tip jurisprudence of the Supreme Court and this
Court, and misconceives the role corroboration plays in
evaluating such tips. Both of these factors weigh strongly
against the magistrate’s probable cause determination.

Staleness

       The majority does not confront the fact that by the time
of the first anonymous tip, Howell’s information from the
August 2002 marijuana eradication effort had aged eight
months. The staleness of this information renders it of minimal
probative value.

       It is well-established that staleness is a contextual inquiry
and not simply a matter of measuring the age of information
contained in an affidavit. United States v. Harvey, 2 F.3d 1318,
1322 (3d Cir. 1993) (noting that the speed with which
information supporting a warrant becomes stale varies with the
nature of the crime and the type of evidence); United States v.
Williams, 897 F.2d 1034, 1039 (10 th Cir. 1990). By the same
token, staleness implies no frontier between full-potency fresh
information and the worthlessly stale. With half-lifes varying by
context, the reliability of information dissipates over time to the
point that such information must be disregarded. For instance,

                               - 34 -
information regarding an alleged burglar’s possession of readily
fenced music CDs will dissipate faster than, say, an alleged
burglar’s possession of a stolen Cezanne painting that may take
the suspected thief years to unload. Further, we have
recognized, quite sensibly, that information regarding repeated
unlawful conduct over an extended period suggests a
“continuing offense,” and thus is more durable than information
of discrete offenses. United States v. Urban, 404 F.3d 754, 774
(3d Cir. 2005) (“[W]here the facts adduced to support probable
cause describe a course or pattern of ongoing and continuous
criminality, the passage of time between the occurrence of the
facts set forth in the affidavit and the submission of the affidavit
itself loses significance.”); United States v. Zimmerman, 277
F.3d 426, 434 (3d Cir. 2002).

     Here, the information Howell used to corroborate the
anonymous tip was weak as an initial matter,13 and the nature of



  13
     As the majority notes, Howell saw the area in question one
time from a helicopter, approximately eight months before
submitting his affidavit. The one person interviewed by the
officers on the ground in August 2002, the marijuana cultivator,
denied living in the house, and no connection between the main
building and the marijuana growing in the roofless horse stables
or in the field was ever made. Both the horse stables and the
field are described in Howell’s affidavit as being “at the rear” of
the main house. Where, if at all, the roofless stables appear in
the aerial photograph (“Attachment A” to the affidavit) is

                               - 35 -
the crime and type of evidence indicates that the information
was susceptible to becoming stale.

        First, Howell saw marijuana growing on the property on
one occasion. By definition, one sighting cannot constitute a
“continuing offense” such that the information would become
stale at a relatively slow rate. Compare Zimmerman, 277 F.3d
at 434 (concluding that one viewing of a pornographic video
clip ten months before rendered the information stale), with
Urban, 404 F.3d at 775 (determining that a years-long pattern of
graft and extortion, the last evidence of which was from October
1999, was not stale at the time of a February 2000 affidavit),
and Harvey, 2 F.3d at 1323 (concluding that information
concerning the receipt of fifteen child pornography mailings
over a period from two to fifteen months before the warrant
application was made was not stale). The August 2002
discovery of an outdoor grow operation was a discrete event,
and the marijuana was destroyed. To be sure, one may speculate
that marijuana is more likely to be regrown in the same location
where it has been found than in a place where it has never been
discovered.       However, Howell’s affidavit contains no
information that marijuana was repeatedly grown at the location,
and it is equally sensible to posit that people will not again
cultivate marijuana in a location already known to authorities.


unknown. At best, the connection between the outdoor
marijuana grow operation and the nearby building must be
imputed, and thus was tenuous even in August 2002.

                             - 36 -
Because there was no pattern of illegality here, I believe the
information from the August 2002 eradication effort had
become stale by the time Howell included it in his May 2003
affidavit.

        Second, not only was no connection between the outdoor
grow operations and the main house made in August 2002, even
if one were to infer such a connection then existed, Howell
made no effort to determine whether there was a continuity of
ownership or occupancy of the property. What the majority
terms “Ritters’ property,” ante n.1 – a fair enough
characterization in May 2003 considering the Ritters’ residency
if not ownership of the compound – may have been no such
thing in August 2002. There was simply no investigation of (1)
who, if anyone, lived in the building (or who owned it) at the
time of the August 2002 marijuana eradication; (2) whether the
occupants or owners of the building were connected to the
August 2002 outdoor marijuana growing; or (3) whether any
changes in occupancy or ownership had occurred between
August 2002 and May 2003. Moreover, apart from the
anonymous tips, Howell had no evidence that the building ever
housed an indoor marijuana growing operation. Any connection
between the outdoor grow operation and an indoor grow room
must be imputed. Yet, the majority transports across the eight-
month interim the connection they necessarily draw between the
illicit outdoor activity and that suspected to have occurred
indoors in August 2002. In my view, the connection between
the outdoor marijuana cultivation and that which the majority

                            - 37 -
presumes to have occurred indoors was weak in 2002, and was
worthlessly stale by May 2003. People are mobile. Real
property changes hands.

Corroboration of Anonymous Tips

        In Illinois v. Gates, 426 U.S. 213 (1983), the Supreme
Court stressed that, unlike tips from known informants who
have provided reliable information in the past, or tips from
identified citizens who could be charged with filing a false
report if the tip proved faulty, the veracity and reliability of
anonymous tipsters is “by hypothesis largely unknown, and
unknowable.” Id. at 237. Gates also observed that the same
deficiency obtains regarding the means by which an anonymous
informant came by the information contained in a tip, what the
Court termed the “basis of knowledge.” 14 Id. at 246. In

  14
     In Gates, the Supreme Court incorporated the reasoning of
its decisions in Aguilar v. Texas, 378 U.S. 108 (1964), and
Spinelli v. United States, 393 U.S. 410 (1969), into a totality-of-
the-circumstances approach for evaluating informants’ tips.
Gates eschewed a stovepipe approach that treats an informant’s
“veracity,” “reliability,” and “basis of knowledge” – criteria
developed in Aguilar and Spinelli – as independent and
necessary elements to crediting tips. Rather, in affirming the
Aguilar and Spinelli criteria as relevant indicia of a tip’s value,
the Court established that the inquiry should treat these criteria
as related issues, such that “a deficiency in one may be
compensated for, in determining the overall reliability of a tip,

                              - 38 -
expounding on the “veracity,” “reliability,” and “basis of
knowledge” inquiries, Gates and its progeny distinguish
between anonymous tips that contain detailed predictions of the
target’s future activities from those that merely assert criminal
wrongdoing occurring in the past or at the time of the tip.

        In the former category, the cases allow that police
corroboration of the tip’s predictions regarding the target’s
future lawful actions can bolster the tip’s creditability, and may
create the reasonable suspicion or probable cause needed to
support a seizure and search of the target and his property for
evidence of illegal activity. The rationale of these decisions is
that if the anonymous tip proves correct about the target’s
predicted licit actions “A, B, and C,” then the tip’s prediction
that the target will be engaged in illegal activity “D” is more
creditable. Id. at 244; see Spinelli v. United States, 393 U.S.
410, 427 (1969) (White, J., concurring) (“[B]ecause an
informant is right about some things, he is more probably right
about other facts, usually the critical, unverified facts.”). The
police corroboration of the anonymous tip’s innocent details, the
cases teach, bolsters the veracity and reliability of the tip, as
well as suggests that the tipster is a trusted intimate of the target,


by a strong showing as to the other, or by some other indicia of
reliability.” Gates, 462 U.S. at 233.




                                - 39 -
and thus may be privy to inside information concerning the
target’s alleged lawbreaking.

       Where the anonymous tip contains only “bare bones”
allegations of illegality, however, the police have no basis on
which to evaluate the creditability of the tip’s illegal content by
corroborating the tip’s predictions of the target’s future innocent
actions. Such conclusory anonymous tips do not amount to
reasonable suspicion, much less probable cause, and police may
not base a seizure or search on them.15 As with predictive tips,
a “bare bones” anonymous tip can trigger a police investigation,
such as placing surveillance on the tip’s target, that may reveal
independent suspicious activity upon which the police can then
act. With nothing but the illegality to verify, however, the
investigation of conclusory allegations itself must reveal
suspicious activity independently sufficient to support a seizure
and search.

        Here, the anonymous tips contained only bare allegations
of illegality – that the residents of the identified building were
cultivating marijuana in two outdoor locations and in two indoor


  15
     The Supreme Court has suggested that police may rely on
an anonymous tip to conduct a seizure and search on the tip’s
target if the danger alleged is great, such as a bomb threat.
Florida v. J.L., 529 U.S. 266, 273-74 (2000). However, as here,
anonymous tips regarding narcotics do not constitute such a
special circumstance.

                              - 40 -
grow rooms, and that an occupant of the house was seen
carrying marijuana plants inside the building. The tips
contained no predictions of innocent activity Howell could
corroborate to bolster the tip’s overall reliability; there was
nothing to corroborate except for the illegal activity itself. Yet,
the majority, relying on inapposite “predictive anonymous tip”
caselaw, erroneously concludes that Howell’s viewing of
outdoor marijuana growing near the building eight months
earlier somehow “corroborated” the anonymous tip. I disagree
with this approach, and I believe it is unprecedented, because it
substitutes Howell’s prior knowledge for any testing of the
reliability and basis of knowledge of the tipster and her
information. This strikes me as a fundamental error with
potentially dangerous implications. The Supreme Court has
analyzed anonymous tips three times, and in each case the Court
has emphasized the tip’s accuracy in predicting future events as
a means of assessing its overall credibility. The tip here
predicted nothing that could be verified, so when the warrant
issued, the predictive value of the tip was nil.

       Predictive Anonymous Tip Cases

       The Supreme Court in Gates emphasized the value of the
independent police investigation in corroborating the details of
the Gateses’ narcotics run as predicted in an anonymous letter.
By the time he had submitted his affidavit to the magistrate, the
officer in Gates had corroborated several of the predictions
contained in the letter, including Lance Gates’ flight from

                              - 41 -
Chicago to West Palm Beach, Florida, his collecting the family
car there, and his quick departure driving back north. Gates,
426 U.S. at 244. That the anonymous letter had correctly
predicted these innocent facts, the Court reasoned, increased the
reliability of the tipster’s prediction that the trunk of the car
would contain marijuana. Id.

        Similarly, the basis of knowledge of the anonymous letter
writer was unassessable before the details were corroborated.
As to this criteria, Gates distinguished between “easily obtained
facts and conditions existing at the time of the tip,” which are
deprecated, and predicted future events that only an intimate of
the tip’s target would know, about which corroboration of
innocent details by police investigation can bolster the
probability that the tip’s content concerning illegality is
accurate. Id. at 244-46. That several of the letter’s predictions
of the Gateses’ unusual travel plans proved true increased the
probability that the letter contained information known only to
the Gateses themselves or a trusted intimate of theirs, namely,
that they were transporting marijuana in the trunk of their car.
Id. at 246. Noting the substantial corroboration of difficult-to-
predict details contained in the letter, and observing that the
Gateses’ actions were “as suggestive of a prearranged drug run,
as it [was] of an ordinary vacation trip,” the Court held that the
magistrate had a proper basis for issuing the warrant. Id. at 243-
46.




                              - 42 -
        Gates highlights the illogic of the majority’s reliance here
on Howell’s ex ante “corroboration” of the anonymous tip to
justify the issuance of the search warrant: The majority credits
the anonymous tip at face value in its probable cause calculus
without requiring that its veracity, reliability, or basis of
knowledge be vetted at all. Indeed, quoting Gates, the majority
mentions “basis of knowledge” as a factor in a magistrate’s
“practical, common-sense” probable cause decision, yet never
returns to apply it to the facts of this case.

       In Alabama v. White, 496 U.S. 325 (1990), the Supreme
Court applied its anonymous tip analysis from Gates in a
reasonable suspicion context. The anonymous tip in White
indicated that, at a given time, Vanessa White would drive a
brown Plymouth station wagon with a broken taillight from her
apartment on a direct route to Dobey’s Motel, and that White
would be in possession of a brown attache case containing
marijuana and heroin. Id. at 326. Following up on the tip, the
police located the station wagon at the address given, and
observed a woman enter it and begin driving toward Dobey’s
Motel within the time frame predicted. Id. at 331. As the
vehicle neared the hotel, the police effected a Terry stop of the
car, and a consent search of the attache case found inside
revealed narcotics. Id. at 326.

      Applying the same approach in the reasonable suspicion
context as it did in Gates’ probable cause analysis, the Court
again stressed the importance of personal observations by

                               - 43 -
officers in corroborating some predictions of lawful behavior
contained in the anonymous tip to establish the reliability of the
tip’s information concerning the target’s alleged illegal
activities. Id. at 331-32 (noting that Gates credited “the
proposition that because an informant is shown to be right about
some things, he is probably right about other facts that he has
alleged, including the claim that the object of the tip is engaged
in criminal activity,” and concluding that “the independent
corroboration by the police of significant aspects of the
informer’s predictions imparted some degree of reliability to the
other allegations made by the caller”). Likewise, White iterated
Gates’ teaching that police confirmation of a tip’s hard-to-
predict details helps to establish the “insider” basis of the
informant’s knowledge. Id. at 332 (“When significant aspects
of the caller’s predictions were verified, there was reason to
believe not only that the caller was honest but also that he was
well informed, at least well enough to justify the stop.”).16 The



   16
       Also, as it did in Gates, the Court again distinguished
between “easily obtained facts and conditions existing at the
time of the tip” and “future actions of third parties not easily
predicted.” White, 496 U.S. at 332 (quoting Gates, 462 U.S. at
245). The Court noted that anyone could have “predicted” that
the station wagon was parked at a given location because it was
a condition presumably existing at the time of the anonymous
phone tip. White, 496 U.S. at 332. In the Court’s view, “[w]hat
was important was the caller’s ability to predict [White’s] future
behavior, because it demonstrated inside information – a special

                              - 44 -
Court considered White to be a “close case,” but that “under the
totality of the circumstances the anonymous tip, as corroborated,
exhibited sufficient indicia of reliability to justify the
investigatory stop of [White’s] car.” 17 Id.

      Illustrating the difference between the probable cause and
reasonable suspicion standards, White noted that the tip at issue
was not as detailed, and the corroboration was not as thorough,



familiarity with respondent’s affairs.” Id. Here, the anonymous
tips lacked any predictive information whatsoever, the
corroboration of which could have augmented the tips’
creditability.
   17
       The government cites a predictive anonymous tip case,
United States v. Padro, 52 F.3d 120 (6 th Cir. 1995), for the
proposition that a law enforcement officer may use information
he already possesses to corroborate an anonymous tip, and thus
justify a search requiring probable cause. Tellingly, the Sixth
Circuit in Padro specifically noted that before the search took
place the officer had corroborated the informant’s predictions
regarding the vehicle used and its route, timing, and occupants.
Id. at 123. Moreover, during the stop, the officer had seen a
protruding armrest panel and electronic release hook in plain
view, suggesting the hidden recess predicted in the tip. Id. at
124. In short, several aspects of the informant’s tip were
verified before the search, thus the Padro court held that
probable cause existed to search for the narcotics the anonymous
tipster alleged were being transported.

                             - 45 -
as in Gates, but that the less demanding reasonable suspicion
standard lowers the sum of the quantity and quality of the
information that must be established. Id. at 330. Also, unlike in
Gates, White’s predicted activities were not independently
suspicious. Though it was a borderline case, the Court
concluded that the police had the reasonable suspicion necessary
to effect the traffic stop.

       Here, the majority notes that the Supreme Court in White
stressed that an officer’s ability to corroborate a tip, and the tip’s
predictive ability, are the two most important considerations in
the totality of the circumstances inquiry used to determine
whether an anonymous tip could provide the reasonable
suspicion necessary to support a Terry stop. Despite observing
that reasonable suspicion requires a lesser quantum of proof
than the probable cause standard here, and despite noting that
“the predictive value of the tip [went] untested” before the
warrant issued, the majority still refuses to upset the magistrate’s
finding. The majority then frames the question here as whether
Howell’s August 2002 experience “was sufficiently
corroborative so as to give the tip predictive value.”

       The fundamental error the majority makes is that it fails
to recognize that there is absolutely nothing “predictive” about
the anonymous tip in this case to corroborate, as that term is
understood in the caselaw. Because the basis of the tipster’s
knowledge was not and could not be tested to show that she
likely was indeed an insider, and because the veracity and

                                - 46 -
reliability of the tip’s substance was not and could not be
corroborated (i.e., there was no innocent prediction of “A, B,
and C” that, if corroborated, would provide a substantial basis
to conclude that prediction “D” of illegal activity was also
accurate), the magistrate was not permitted to rely on the
anonymous tip in its probable cause calculus.18 In my view,
reference to the magistrate’s duty to make “practical, common-
sense decisions,” Gates, 462 U.S. at 237, offers no refuge for
the legal error evident here. See United States v. Leon, 468 U.S.
897, 915 (1984) (“Even if the warrant application was supported
by more than a ‘bare bones’ affidavit, a reviewing court may
properly conclude that, notwithstanding the deference that
magistrates deserve, the warrant was invalid because the
magistrate’s probable-cause determination reflected an improper
analysis of the totality of the circumstances... .”). Once the
anonymous tip is discredited, all that is left of the affidavit is
Howell’s sighting and eradication of outdoor marijuana “at the
rear” of the building eight months before, and this is not nearly
enough to support the probable cause standard for the issuance
of a warrant.

        “Bare Bones” Anonymous Tip Cases


   18
       The majority notes, “We can see how an officer and a
magistrate could view the tip as establishing an identifiable
pattern of activity on the premises.” I submit that under Leon,
discussed infra, Officer Howell is allowed such mistakes, but
the magistrate is not.

                              - 47 -
       Florida v. J.L., 529 U.S. 266 (2000), involved an
anonymous tip that a young black male wearing a plaid shirt and
standing at a particular bus stop was carrying a concealed
weapon in violation of Florida law. Id. at 268. Acting on this
skeletal tip, the police identified the target of the tip and
conducted a Terry stop-and-frisk of him that revealed a gun. Id.
Relying almost exclusively on White, a unanimous Court
invalidated the search. Id. at 269. Unlike the post-tip
corroboration essential to the White decision, the “anonymous
call concerning J.L. provided no predictive information and
therefore left the police without a means to test the informant’s
knowledge and credibility.” Id. at 271. Absent independent
corroboration, the police impermissibly relied on the “bare
report of an unknown, unaccountable informant who neither
explained how he knew about the gun nor supplied any basis for
believing he had inside information.” Id. “If White was a close
case on the reliability of anonymous tips,” the Court concluded,
“this one surely falls on the other side of the line.” Id. It bears
repeating that like White, J.L. was a reasonable suspicion case,
not a probable cause case as here.19


 19
     Indeed, the Supreme Court has suggested that an unverified
tip from a known, repeat informant alone does not create
probable cause. Adams v. Williams, 407 U.S. 143, 147 (1972).
The verification required to credit an anonymous tip is
necessarily greater. Compare id. at 146-47 (holding that a tip
from a known informant who had provided reliable information
in the past was sufficient to support a Terry stop-and-frisk for a

                              - 48 -
        In my view, the facts of this case are analogous to those
in United States v. Roberson, 90 F.3d 75 (3d Cir. 1996) (Becker,
J., joined by Nygaard and Lewis, JJ.). There, this Court
anticipated the Supreme Court’s decision in J.L. in concluding
that an uncorroborated anonymous tip that contains only
information readily observable at the time the tip was made does
not justify a Terry stop. Id. at 80. The Roberson tip was that an
individual identified by his race, build, clothing, and location
was selling drugs on a corner known to police as a “hot spot” for
narcotic sales.20 Id. at 75-76. Though brief surveillance
revealed no suspicious activity by the identified individual, the
police nonetheless conducted a Terry stop-and-frisk of the tip’s
target, and discovered narcotics. Id. at 76. We held that
reasonable suspicion is lacking where a bare anonymous tip of
illegal activity contains only readily apparent information – i.e.,
the tip does not contain predictive information that, if
corroborated, would suggest the source is a reliable intimate of
the target – and the police do not themselves observe suspicious


gun), with J.L., 529 U.S. at 274 (distinguishing Adams and
White and concluding that an anonymous tip lacking indicia of
reliability does not justify a stop-and-frisk under Terry).
  20
      I view the “hot spot” characterization in Roberson to be of
approximately equal weight in the totality-of-the-circumstances
analysis as the connection the majority makes between the
outdoor marijuana plots eradicated “at the rear” of the main
house in August 2002 and the indoor grow operations alleged in
the tip to have existed eight months later.

                              - 49 -
behavior. Id. at 80. To hold otherwise, we reasoned, would
subject anyone to a search on the “say-so of an anonymous
prankster, rival, or misinformed individual.” 21 Id. at 80-81.

        If anything, the major distinguishing features of
Roberson cut against the majority’s validation of the magistrate
judge’s finding of probable cause here. First, Roberson
involved merely reasonable suspicion, not probable cause. The
majority’s validation of the magistrate’s probable cause finding
threatens to blur the distinction between the two standards by
drawing what is needed to establish probable cause toward the
lesser standard. Second, as recently as 2001, the Supreme Court
has repeated that “the Fourth Amendment ‘draws a firm line at


   21
       As noted by the Roberson panel, the police could have
placed surveillance on the tip’s target on the chance that he
would exhibit suspicious behavior to justify a Terry stop. Id. at
81. The same opportunity was presented here, yet Howell opted
not to visit the compound or conduct any investigation before
seeking a warrant. Deed and utility searches could have
determined continuity or changes in ownership and occupancy
across the eight months. A short post-tip visit presumably
would have revealed the outdoor plots of marijuana, justifying
a warrant for entry onto the property. Further investigation or
surveillance by Howell may have produced information properly
supportive of a search warrant for the building. At the time the
magistrate issued the warrant, however, he had no post-tip
qualifying indicia of the tip’s overall reliability. That the tip
ultimately proved accurate does not matter.

                             - 50 -
the entrance of the house.’” Kyllo v. United States, 533 U.S. 27,
39 (2001) (quoting Payton v. New York, 445 U.S. 573, 590
(1980); see Zimmerman, 277 F.3d at 431 (“One’s home is
sacrosanct, and unreasonable government intrusion into the
home is ‘the chief evil against which the wording of the Fourth
Amendment is directed’”) (quoting Payton, 445 U.S. at 585).
By approving the magistrate’s probable cause finding on the
flimsy showing of Howell’s affidavit, the majority guts the
warrant requirement it purports to honor, and fails to recognize
the status traditionally accorded the home in Fourth Amendment
jurisprudence.

        Summary

       By failing to distinguish between predictive anonymous
tips and bare bones anonymous tips, the majority misconceives
the purpose of corroborating anonymous tips. The purpose is to
test the verity of the tipster and his information, not the
knowledge of the officer who receives the tip and submits the
affidavit to the magistrate. The policy rationale for the
distinction is readily understood: Except in cases where the tip
involves “great danger,” such as a bomb threat, the Fourth
Amendment prohibits police from effecting a seizure and search
based on anonymous reports of illegal activity.22 See J.L., 529


   22
      The majority’s mistaken approach raises the spectre of
every residence that has been the site of prior illegal activity in
recent months being an anonymous tip away from the issuance

                              - 51 -
U.S. at 272 (refusing to recognize an automatic weapon
exception to the reliability analysis because “[s]uch an exception
would enable any person seeking to harass another to set in
motion an intrusive, embarrassing police search of the targeted
person simply by placing an anonymous call falsely reporting
the target’s unlawful carriage of a gun”). In other words, it is
constitutionally unreasonable for police to rely on untested
allegations by individuals who are unwilling to reveal
themselves; the danger of mischief is simply too great.

Good Faith Exception of United States v. Leon

       Gates’ deference to magistrates’ probable cause
determinations was premised on the notion that searches
pursuant to warrants are preferable to warrantless searches based
on exceptions to the Fourth Amendment’s warrant requirement.
Gates, 462 U.S. at 236. The Court observed that the presence of
a warrant during a search “reduces the perception of unlawful or
intrusive police conduct, by assuring the individual whose
property is searched or seized of the lawful authority of the
executing officer, his need to search, and the limits of his power



of a search warrant. Consistent with the majority’s reasoning,
a magistrate could validly issue a search warrant where an
affidavit asserts the combination of an anonymous tip of illegal
activity in a certain building with a database “hit” showing that
the address had been the site of similar illegality in the past eight
months.

                               - 52 -
to search.” Id. (citation omitted). Relatedly, the primary
purpose of the exclusionary rule is to deter unlawful police
conduct, United States v. Calandra, 414 U.S. 338, 347 (1974),
a purpose that is weakly served, if at all, by severe after-the-fact
scrutiny of magistrates’ probable cause determinations. United
States v. Leon, 468 U.S. 897, 919-20 (1984).

       Rather than discourage officers from seeking warrants
with the prospect of reviewing courts excluding evidence by
overturning magistrates’ probable cause findings after close
scrutiny of these findings, and thereby induce officers to rely on
warrant exceptions, Gates affirmed the deferential standard that
“so long as the magistrate had a ‘substantial basis for ...
conclud[ing]’ that a search would uncover evidence of
wrongdoing, the Fourth Amendment requires no more.” Gates,
462 U.S. 236 (quoting Jones v. United States, 362 U.S. 257, 271
(1960)).

       The Supreme Court in Leon established a broad good
faith exception to the exclusionary rule that allows the
introduction of evidence when an officer executes a search in
reasonable reliance on a warrant found on review to have been
unsupported by probable cause.23 Id. at 922. Leon thus enables


  23
      This Court has recognized four situations in which Leon
does not apply, but these are minor limitations to the
applicability of the rule, and none apply here. See United States
v. Williams, 3 F.3d 69, 74 (3d Cir. 1993) (quoting the

                               - 53 -
appellate courts to instruct magistrates on the contours of the
probable cause requirement without discouraging conscientious
officers from seeking warrants, and it does so while preserving
valuable evidence of criminal wrongdoing. See id.; Zimmerman,
277 F.3d at 436.

       Leon is well-designed for a case such as this one, where
the magistrate failed to comprehend an aspect of Fourth
Amendment jurisprudence requiring the synthesis of several
cases, a deficiency that no police officer could have been
expected to recognize, much less question. Indeed, Leon invites



admonition in Leon, 468 U.S. at 921: “In the ordinary case, an
officer cannot be expected to question the magistrate’s probable
cause determination.”). Two limitations to the Leon rule involve
misconduct, either by police effectively writing their own
warrants by submitting a deliberately or recklessly false
affidavit, or by the magistrate abandoning his neutral role by
teaming with the officers. Id. A third situation upholding the
exclusion of evidence notwithstanding the presence of a warrant
involves the use of unparticularized general warrants that
purport to allow officers to search first and explain where and
for what they were looking later. United States v. $ 92,422.57,
307 F.3d 137, 148-49 (3d Cir. 2002). The last limitation to
employing Leon’s good faith exception “applies in only those
rare circumstances in which, although a neutral magistrate has
found that there is probable cause, a lay officer executing the
warrant could not reasonably believe that the magistrate was
correct.” Zimmerman, 277 F.3d at 440 (Alito, J., dissenting).

                             - 54 -
reviewing courts to address novel probable cause questions
before turning to the good faith exception analysis:

             If the resolution of a particular
             Fourth Amendment question is
             necessary to guide future action by
             law enforcement officers and
             magistrates, nothing will prevent
             reviewing courts from deciding that
             question before turning to the good-
             faith issue. Indeed, it frequently
             will be difficult to determine
             w hether the off icers acted
             reasonably without resolving the
             Fourth Amendment issue. Even if
             the Fourth Amendment question is
             not one of broad import, reviewing
             courts could decide in particular
             cases that magistrates under their
             supervision need to be informed of
             their errors and so evaluate the
             officers’ good faith only after
             finding a violation.

Leon, 468 U.S. at 925; see United States v. $ 92,422.57, 307
F.3d 137, 145 (3d Cir. 2002).




                            - 55 -
       For the reasons articulated above, Howell’s affidavit did
not adequately support the magistrate judge’s probable cause
determination. However, under Leon, Howell was justified in
relying on the invalid warrant in organizing the execution of the
search.24 No limitation to Leon’s good faith rule applies. There
is no hint of misconduct or abdication of duty on the part of
Howell or the magistrate. The deficiency of particularity
regarding the multiple units of the building did not appear on the
face of the warrant; this deficiency was of the Maryland v.
Garrison variety, and the majority’s discussion of Garrison for
the purposes of remand is thorough and I join in it. Regarding
the last Leon exception recounted in the margin, this is not a
circumstance in which an officer could not reasonably believe
the magistrate’s probable cause determination was correct. The
staleness and corroboration issues either went unrecognized or
were misapplied by the magistrate, the District Court, and my
two colleagues in the majority. In light of these factors, it would
be unrealistic to conclude that Officer Howell should have
recognized, questioned, and correctly applied the nuances of
staleness and anonymous tip corroboration doctrine. In my


   24
       As explained by the majority, the Maryland v. Garrison
issue to be addressed on remand will turn on what, if any,
contraband Howell and the warrant-executing officers
discovered before they realized that the building contained
multiple apartments. At this point, however, I believe the
officers were legally poised to enforce the warrant despite the
fact that it was invalidly issued.

                              - 56 -
view, the magistrate’s probable cause finding should be rejected,
and the Leon good faith exception applied to Howell’s reliance
on the invalid warrant.




                             - 57 -
