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W.D.Wis.: Herring did not apply to vital fact about premises being two apartments that DEA failed to tell executing officers

By John Wesley Hall, Jr.

Officers had a search warrant for a two story building. The SWAT team came in, upstairs and down at the same time. Then they found out that it was two apartments which was not determinable by the appearance of the building or rooms. The downstairs apartment was the subject of the warrant, and those in the upstairs consented to a further search. Maryland v. Garrison, nearly on point from SCOTUS, was not cited. Herring's application of the exclusionary rule did not apply because the DEA knew that there were two apartments and they did not communicate it to the executing officers. Consent, however, justified the search after the mistake was found. United States v. Soria, 2009 U.S. Dist. LEXIS 14273 (W.D. Wis. February 11, 2009): The court cannot fault the JPD entry team or JPD searchers for mistakenly entering Apartment B because nobody told them that the warrant was limited to Apartment A on the first floor; further, there was no indication that morning that the upstairs actually was a separate residence...continue to full post

Full post as published by Fourth Amendment on March 01, 2009 (boomark / email).