                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3623
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Western District of Arkansas.
                                        *
Janet J. Thomas,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 16, 2001

                                  Filed: August 24, 2001
                                   ___________

Before McMILLIAN, and BEAM, Circuit Judges, and KYLE,1 District Judge.
                            ___________

BEAM, Circuit Judge.

      Appellant, Janet Thomas, appeals the denial of her motion to suppress evidence
seized at her residence pursuant to a search warrant containing an incorrect address.
We affirm.




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
I.     BACKGROUND

      On January 11, 2000, police officers searched appellant's apartment at 3202
South 62nd Street #22, Fort Smith, Arkansas (3202). The warrant used by the officers
contained an address previously occupied by the appellant, 3108 South 62nd Street, #2
(3108). The warrant contained no additional description of the place to be searched.

      Over the course of several weeks prior to January 11, Officer Harris had been
collaborating with a confidential informant (CI) conducting controlled buys of crack
cocaine from the appellant and her boyfriend. On January 2, 2000, Officer Harris
prepared a search warrant for 3108 before sending the CI to that address to conduct a
controlled buy from appellant's boyfriend. Officer Harris decided not to use the search
warrant that day because the CI did not observe any substantial amount of crack in the
apartment.

       Between January 2 and January 11, appellant and her boyfriend moved to 3202.
Officer Harris was aware of this fact, and was surveilling the correct apartment while
the CI conducted another controlled buy of crack cocaine at 3202. The police decided
to go forward with a search of 3202 on January 11. Harris prepared an affidavit, which
included the proper address and a detailed description of the premises to be searched,
in support of the search warrant. However, Officer Harris used the warrant he had
prepared on January 2 and forgot to update the address.

       Then, as if auditioning for a law school fact pattern, neither the issuing judge, nor
Officer Harris noticed that the warrant contained an address different from the address
on the affidavit. As a result, police searched the correct apartment at 3202 armed with
a warrant authorizing them to search 3108. There is no question that the officers
searched the apartment they intended to search, as described in the affidavit supporting
the search warrant. They also had this apartment under surveillance while Officer
Harris obtained the search warrant. Finally, Officer Harris had personal knowledge of

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which apartment was the intended target and led the search.

       Appellant filed a motion to suppress the evidence obtained from the search on
January 11, including inculpatory statements she made to officers. After a suppression
hearing, the magistrate judge recommended denying the motion to suppress, and the
district court2 subsequently entered an order adopting the magistrate judge's report and
denying the motion.

II.   ANALYSIS

      “We will uphold the district court’s denial of a motion to suppress unless it rests
on clearly erroneous findings of fact or reflects an erroneous view of the applicable
law.” United States v. Rogers, 150 F.3d 851, 855 (8th Cir. 1998).

      A.     Particularity

       The Fourth Amendment states, “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. To satisfy
the particularity requirement, the place to be searched must be “described with
sufficient particularity as to enable the executing officer to locate and identify the
premises with reasonable effort” and to avoid mistakenly searching the wrong
premises. United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979).

       There can be no argument that the warrant in this case satisfied the particularity
requirement. The warrant authorized a search for 3108 South 62nd Street, Apartment
#2. This is most decidedly not 3202 South 62nd Street, Apartment #22, the location


      2
        The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.

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actually searched. This erroneous address was the only information in the warrant
identifying the location to be searched. There are several cases in this circuit finding
the particularity requirement satisfied although the description on the search warrant
in question was not entirely accurate. See Rogers, 150 F.3d at 855 (upholding search
where warrant described route to the property in question but left out final turn onto
property because warrant otherwise described property); United States v. Valentine,
984 F.2d 906, 909 (8th Cir. 1993) (finding a warrant sufficiently particular when it
accurately described the target building, but listed the address as 3048 rather than
3050); Lyons v. Robinson, 783 F.2d 737, 738 (8th Cir. 1985) (upholding search
conducted pursuant to warrant that contained an improper address, but reasonably
applied to place searched) ; United States v. Clement, 747 F.2d 460, 461 (8th Cir.
1984) (finding a warrant valid when it listed the proper building number but the
incorrect apartment number and the officer personally knew which apartment was
target of search); Gitcho, 601 F.2d at 372 (upholding warrant where the listed address
was incorrect but was reasonable description of unmarked building on unmarked street
and searching officers had personal knowledge of place to be searched). None of these
cases involved a warrant containing an obviously incorrect address standing alone.

       Typically, a warrant that is not particular enough cannot be cured by the
specificity of the affidavit supporting it. See United States v. Johnson, 541 F.2d 1311,
1315 (8th Cir. 1976). “Specificity is required in the warrant itself in order to limit the
discretion of the executing officers as well as to give notice to the party searched.” Id.
However, if the affidavit is incorporated into the warrant, it may cure the particularity
defect of the warrant if the affidavit accompanies the warrant and the warrant uses
suitable words of reference to incorporate the affidavit. Id. Officer Harris’ affidavit
in support of his request for the warrant contained the correct address and a specific
physical description of the target premises, but it was not incorporated into the warrant
with suitable words of reference. Therefore, the affidavit did not cure the defective
warrant.


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      B.     Objective Good Faith Exception

        In United States v. Leon, the Supreme Court carved out a good faith exception
to the exclusionary rule in Fourth Amendment cases. 468 U.S. 897 (1984). Reasoning
that the exclusionary rule was a judicial remedy created to guard individual rights
through its deterrent effect against police misconduct, the Court held that evidence
should not be suppressed where police officers rely in reasonable good faith on a
properly obtained warrant, that proves to be invalid. Id. at 906, 916, 920.

       We have extended the holding of Leon, to uphold a search conducted pursuant
to a warrant completely lacking a description of the premises to be searched. United
States v. Curry, 911 F.2d 72 (8th Cir. 1990). Curry directly controls this case. There,
due to a clerical error, the police conducted a search relying on a search warrant that
did not contain any address or description of the place to be searched. Id. at 76. The
application for the warrant and accompanying affidavit contained accurate and specific
descriptions of the target location. Id. The court in Curry held, as we do today, that
the warrant was facially invalid and that the affidavit was not incorporated into the
warrant because the warrant lacked any suitable words of reference. Id. at 76-77.

       Although Leon contains language suggesting that a warrant might be so facially
invalid that no officer could have relied on it in good faith (and thus the good faith
exception would not prevent suppression), 468 U.S. at 923, we held in Curry that this
did not apply to every case where a warrant is found invalid on the ground that it is
insufficiently particular. Curry, 911 F.2d at 77. Thus, although no officer could have
reasonably believed the warrant in Curry described the premises to be searched, the
court upheld the search on the Leon objective good faith rule.

      There were several factors justifying application of the Leon exception to the
exclusionary rule. First, the application and supporting affidavit both contained the
correct address of the location to be searched. Id. at 78. Second, there was no evidence

                                          -5-
of bad faith on the part of the officer obtaining the warrant. Id. Third, the search was
executed by the same officer who had prepared the affidavit, all but eliminating the
chance the wrong location would be searched. Finally, the responsibility for this type
of error in the warrant lies with the issuing judge. Id. Because the exclusionary rule
was designed to deter officers (and would be ineffective against neutral judges),
applying the rule in Curry would not have furthered the purpose of the rule. Id.

       The only difference between the present case and Curry is that here, the warrant
contained an incorrect address while in Curry the warrant contained no address. The
above reasons justifying the decision in Curry apply with equal force to the present
situation. Appellant argues that the present case is distinguishable because a “mere
reading of the warrant” would have revealed the error. The same is true of the warrant
in Curry. Appellant also argues that in the present case the error on the face of the
warrant was the error of Officer Harris. It is true that Officer Harris made an error in
this case by submitting the warrant prepared earlier with the incorrect address.
However, this is not sufficient to change the fact that the issuing judicial officer bears
the primary responsibility for ensuring the accuracy of the warrant as the final
reviewing authority. Cf. id. at 78 ("'The responsibility for the inadvertent omission of
the address on the warrant itself, must be borne by the [issuing official], as the final
reviewing authority'") (quoting United States v. Bonner, 808 F.2d 864, 867 (1st Cir.
1986) (alteration in original). We do not see a significant difference on the issue of
responsibility for the error between the present case and Curry.

       The fact that the warrant here contained an incorrect address, thus increasing the
likelihood of searching the incorrect residence, does give us pause. However, this
increased danger was mitigated not only by the fact that Officer Harris, who had
personal knowledge of the location to be searched, both obtained and executed the
warrant, but also by the fact that the intended location was under surveillance while he
secured the warrant. See Gitcho, 601 F.2d at 372 (upholding search because, although
warrant contained slightly incorrect address, agent executing warrant personally knew

                                           -6-
which premises to search and premises were under constant surveillance while warrant
was obtained).

       Appellant argues that the good faith exception should not apply because the
issuing judge abandoned his neutral role and just acted as a rubber stamp, evidenced
by the fact that the error was so obvious. The district court found the issuing judge had
not abandoned his neutral role, and that conclusion was not clearly erroneous.

III.   CONCLUSION

       Accordingly, we affirm the decision of the district court.

KYLE, District Judge, dissenting.

       I respectfully dissent. While I agree with the majority that the warrant Officer
Harris executed was defective, I disagree with the majority’s view that United States
v. Curry, 911 F.2d 72 (1990), “directly controls this case.” Evaluating this case against
the standard articulated in what seems to be a more apposite case, United States v.
Clement, 747 F.2d 460 (8th Cir. 1984), I can only conclude that, under the totality of
the circumstances, Officer Harris did not act in “objectively reasonable reliance on a
subsequently invalidated warrant.” United States v. Leon, 468 U.S. 897, 922 (1984).
Indeed, Officer Harris does not appear to have relied on the warrant at all.

       The facts of this case do not fit the pattern presented in Curry, in which a
detective entered and searched a private residence with a warrant that had no address --
no particularized description of the place to be searched. Given the fact that the
warrant was plainly deficient on its face, this Court analyzed the Supreme Court’s
decision in United States v. Leon and concluded that, depending on the circumstances
of the case, Leon’s “good faith” exception might apply even “where a warrant is found
invalid on the ground that it is insufficiently particular.” Curry, 911 F.2d at 77

                                          -7-
(emphasis added).

        In this case, as the majority has observed, the warrant Officer Harris obtained
satisfied the Fourth Amendment’s particularity requirement. Here, the problem is that
the place the warrant authorized to be searched -- 3108 South 62nd Street, Apartment
# 2 -- is not the place the officers intended to and actually did search -- 3202 South
62nd Street, Apartment # 22. This Court has squarely addressed the problem of a
warrant that inaccurately describes the place to be searched in Clement. There, the
officers obtained a warrant to search “the apartment of Vance Clements, apartment No.
4 at 3300 Irvine Avenue.” Clement, 747 F.2d at 461. Clement, the apartment manager,
had been living in apartment No. 4 but, at the time the warrant issued, was living in
apartment No. 3, adjacent to No. 4. Id. When the officers came to execute the
warrant, they immediately went to apartment No. 3, having been there the day before.
Id. Upon entering, they seized a firearm in plain view. Id. Clement moved to suppress
the gun because the warrant authorized a search of apartment 4, not apartment 3. Id.

      This Court identified several factors it had “relied upon in upholding searches
conducted under the authority of a warrant inaccurately describing the place to be
searched,” id., including

      (1) whether the address in the warrant, although incorrect, still describes
      the same piece of property; (2) whether the premises intended to be
      searched are adjacent to those described and are all under the control of
      the defendant; and (3) whether other parts of the description which are
      correct limit the place to be searched to one place.

Id. Also noted as being of particular importance from an earlier decision was the fact
that the agents personally knew which premises were intended to be searched. Id.
(citing United States v. Gitcho, 609 F.2d 369, 372 (8th Cir.), cert. denied, 444 U.S. 871
(1979)).



                                          -8-
       Applying the Clement factors to this case, it is evident that the inaccuracies in
the warrant at issue here are far more glaring than those in Clement. There is no
question that the address “3108 South 62nd Street, Apartment # 2" does not describe
the same piece of property as “3202 South 62nd Street, Apartment # 22.” Nor does
it appear that 3108 South 62nd Street, Apartment # 2 is adjacent to 3202 South 62nd
Street, Apartment # 22, certainly not in the way that apartment No. 3 was adjacent to
apartment No. 4 in Clement. The evidence indicates that the apartment actually
described in the warrant was no longer under the defendant’s control; indeed, the
defendant had moved from that address and no longer resided there. Finally, no other
part of the description in the warrant was correct. Thus, none of the factors outlined
in Clement supports upholding the search in this case.

       That leaves only the fact that Officer Harris personally knew which premises
were to be searched. In the analyses of whether the “good faith” exception applied in
Gitcho, Clement, and Curry, it was important that the officer who directed the search
had also prepared the application because “it is appropriate to take into account the
knowledge that an officer in the searching officer’s position would have possessed.”
See Curry, 911 F.2d at 78 (citing Massachusetts v. Sheppard, 468 U.S. 981, 989 n.6
(1984)). However, the fact that the executing officer also had first-hand knowledge of
the place to be searched should not, standing alone, be enough to excuse the
unconstitutional search of a home using a warrant that describes a wholly separate
location. Indeed, it cannot without reading the particularity requirement out of the
Fourth Amendment, for under those circumstances, it would not matter what the
warrant said -- if anything at all -- about the place to be searched.3

      3
        In concluding that the admission of the evidence in Curry was not contrary to
the purpose of the exclusionary rule, this Court adopted the reasoning of the First
Circuit in United States v. Bonner, stating that “the responsibility for the inadvertent
omission of the address on the warrant itself, must be borne by the [issuing official],
as the final reviewing authority.” Curry, 911 F.2d at 78 (quoting United States v.
Bonner, 808 F.2d 864, 867 (1st Cir. 1986)). The majority reiterates this position today.

                                          -9-
       In the end, it is clear that Officer Harris did not rely on what was written on the
face of the warrant when he directed the search of defendant’s apartment. Therefore,
I cannot conclude that Officer Harris acted in “objectively reasonable reliance on a
subsequently invalidated warrant,” see Leon, 468 U.S. at 922, particularly where, had
he read the warrant at any time before knocking on the door at 3202 South 62nd Street,
the warrant’s defect would have been obvious to him. This case just does not seem to
fit within the Leon “good faith” exception.4 Accordingly, I dissent.


The reasoning in Curry and Bonner does not precisely fit this case, however.

       Bonner relied on the Supreme Court’s opinion in Massachusetts v. Sheppard,
468 U.S. 981 (1984), in which the issuing judge told the applying officer that necessary
changes to the warrant form would be made and then, in front of the officer, made
changes to the warrant. Sheppard, 468 U.S. at 989. The Supreme Court concluded
that the officer’s actions were objectively reasonable, “refus[ing] to rule that an officer
is required to disbelieve a judge who has just advised him, by word and by action, that
the warrant he possesses authorizes him to conduct the search he has requested.” Id.
at 989-990. Thus, the Supreme Court held that “[s]uppressing evidence because the
judge failed to make all the necessary clerical corrections despite his assurances that
such changes would be made will not serve the deterrent function that the exclusionary
rule was designed to achieve.” Id. at 990-91.

       In this case, however, the incorrect address had been written on the warrant by
Officer Harris at the time it was presented to the issuing judge. Harris had filled out
the warrant using the defendant’s old address and failed to update the warrant after
learning that the defendant had moved. If the purpose of the exclusionary rule is to
deter the errors of police officers, surely that purpose is served by excluding the
evidence in this case.
      4
        The execution of the warrant might fit within the Leon “good faith” exception
had (1) Officer Harris given the warrant to a colleague for execution, (2) that officer
gone to the address stated on the warrant, and (3) found drugs at that address. Under
those facts, the executing officer -- who was not the officer who applied for the warrant
-- could be said to have acted in “objectively reasonable reliance” on a facially valid
warrant that later turned out to be unsupported by probable cause.

                                           -10-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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