State v. Adams , 197 Ariz. 569 ( 2000 )

TOCI, Judge,

dissenting.

¶ 28 The majority miscasts the issue — the issue is not whether the defendant has a reasonable expectation of privacy in his residence on the second floor of the Nile Theater. The issue is whether the magistrate’s finding of probable cause to search the entire building permitted the search of defendant’s second floor residence. Relying on Garrison, the majority concludes that the warrant to search the Nile Theater building was defective because it did not describe the defendant’s unlawful residence on the second floor of the building.⁵ But an exception to Garrison exists where, as in this case, the entire building is owned and controlled by the target of the warrant. See United States v. Butler, 71 F.3d 243, 249 (7th Cir.1995). Therefore, I respectfully dissent.

¶ 29 It is not necessary for a warrant to describe subunits in a multiple occupancy structure when probable cause exists to search the entire structure. See id. Probable cause to search an entire multiple occupancy structure exists when the occupants have access to the entire structure. See Burns, 163 Ariz. at 47, 785 P.2d at 1235. See also United States v. Whitney, 633 F.2d 902, 907 n. 3 (9th Cir.1980) (exceptions to the rule that warrants must describe subunits exist when premises are occupied in common, defendant controls entire premises, or the entire premises are suspect).⁶ Probable cause to search an entire structure also exists when “the target of the investigation or warrant exercise[s] ‘dominion and control’ over the entire building or ha[s] access to the entire structure.” Butler, 71 F.3d at 249; see also United States v. Gonzalez, 697 F.2d 155, 156 (6th Cir.1983) (probable cause found for warrant authorizing search of entire structure with business on lower floor and residence on upper floor because entire structure was under “singular control” of defendants); United States v. Gilman, 684 F.2d 616, 618 (9th Cir.1982) (warrant valid for office and residence on premises since defendant was in control of the whole building).

¶ 30 For example, in Gilman, much as in the case before us, the warrant described a building located at 924 Grove Street, which housed the defendant’s business offices. Id. at 618. The warrant did not mention that the building contained residential apartments. Id. On appeal, the court held that the general rule for voiding the warrant for an undisclosed multiunit structure does not apply “if the defendant was in control of the whole premises, or if the entire premises were suspect, or if the multiunit character of the premises was not known to the officers.” Id.

¶31 Here, the trial court was concerned with Garrison’s requirement that known residential subunits in a multiple occupancy structure be specifically identified in the warrant. Following Garrison, the trial court concluded that the police did not have probable cause to search what they should have known was defendant’s residence in the Nile Theater. But unlike Garrison, rather than simply occupying a rented residential unit on the second floor of the Nile Theater building, the defendant here owns and controls the entire building. Under the singular occupancy exception to Garrison, probable cause existed to search the entire structure known as the Nile Theater.

¶32 Furthermore, defendant’s ownership and control, coupled with the layout of the building, made the entire premises a place in which evidence supporting the charges might be found. The police had a reasonable belief that documentary evidence sought by warrant would be found in an office that could be located anywhere in the building, including on the second floor. On that basis alone, probable cause existed to search the entire structure. See Burns, 163 Ariz. at 46, 785 P.2d at 1234 (“[w]here the entire premises, rather than a particular subunit, are under suspicion of illegal activity, a warrant for the entire residence may be valid”).

¶ 33 Citing United States v. United States Dist. Court, 407 U.S. 297, 299, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), a case involving war-rantless surveillance, the majority attempts to create a distinction between warrants for commercial structures and those for residential structures. The majority correctly asserts that under the Fourth Amendment homes are entitled to heightened protection. But this principle is only applicable to eases involving warrantless entry; it has no application to this case, where entry was made pursuant to warrant. See, e.g., State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986) (“Unlawful entry of homes was the chief evil which the Fourth Amendment was designed to prevent .... [a]s a matter of Arizona law, officers may not make a warrantless entry into a home in the absence of exigent circumstances or other necessity.”) (citations omitted, emphasis added).

¶ 34 Furthermore, the Fourth Amendment particularity requirement does not require that a warrant explicitly characterize whether the place to be searched is a residence. See, e.g., Ault, 150 Ariz. at 466-67, 724 P.2d at 552-53; United States v. Hutchings, 127 F.3d 1255, 1260 (10th Cir.1997) (warrant including detailed description of trailer to be searched was not invalid for failure to state that trailer was used as a residence); United States v. Williams, 687 F.2d 290, 293 (9th Cir.1982) (cabin occupied by defendant was within scope of warrant that referred only to “premises” and did not describe building on premises as a residence).

¶35 The majority cites Dahlman for the proposition that a warrant should indicate that the place to be searched is a residence. The Dahlman court, however, was concerned with a vague description of the place to be searched. The warrant authorized the* search of “Tee Pee Ranch Phase II, Type II Subdivision, Carton County, New Mexico, Lots 128 and 129” but failed to describe any structures on those lots. 13 F.3d at 1394. The court held that “a residence may not be searched when the property description is ambiguous.” Id. at 1396. In Hutchings, the court clarified its holding in Dahlman:

Finally, the Hutchings argue that the warrant was invalid because it failed to state that a residence was to be searched, citing our decision in U.S. v. Dahlman. The warrant in Dahlman simply identified certain subdivision lots and authorized a search of the “premises” without mentioning that there were any buildings, much less a residence, on the property. In contrast, the warrant here did not merely authorize a vague search of the “premises”; it distinctly stated that buildings and vehicles on the premises were to searched____ Thus, Dahlman is inappo-site here.

127 F.3d at 1260 (citations omitted). Thus Dahlman merely held that a vague description of the place to be searched could have been cured by stating that the place included a residence. To the extent that Dahlman requires that a warrant contain the magic word “residence” or be invalid, it is clearly overruled by Hutchings.

¶ 36 A description is not vague if it limits the scope of the search to those areas in which probable cause exists to believe that items connected with criminal activity will be found. See Garrison, 480 U.S. at 84, 107 S.Ct. 1013. The description in the warrant for the Nile Theater was not vague. Dahl-man is as inapposite here as it was in Hutch-ings.

¶ 37 The majority cites no cases to support the conclusion that a residence within a commercial structure enjoys a heightened standard of probable cause for issuance of a search warrant. The standard for finding probable cause is the same whether or not a portion of the premises is commercial or residential. See United States v. Garnett, 951 F.Supp. 657, 661-62 (E.D.Mich.1996) (that defendant was running an underground nightclub and selling drugs from location in which he rented entire building supported probable cause to search “basement storage and work area, and a second story living quarters area”).

¶ 38 Defendant concedes that probable cause existed to search the business premises known as the Nile Theater. If so, no legal principle required that the search warrant describe defendant’s residence on the second floor. Because defendant controlled the whole premises, and because the whole premises were suspect, the search was lawful. Therefore, the trial court erred in failing to defer to the issuing magistrate’s finding of probable cause. I would reverse the trial court’s order suppressing the evidence.

5 . .The building was identified in the warrant as the "Nile Theater” because it did not have any visible street address, and because it was commonly identified in that fashion. The scope of the warrant was not limited to the stage, auditorium, and box office, i.e., the 'theater’ portion of the structure, but instead, described and referred to the entire "two story structure.” Thus, the second story of the Nile Theater, located at 105 W. Main Street, was clearly within the scope of the warrant.

6 . Whitney incorrectly cites 380 S.W.2d 561, 22 A.L.R.3d 1330; the annotation, Search Warrant: Sufficiency of Description of Apartment or Room to Be Searched in Multiple-Occupancy Structure, is at 11 A.L.R.3d 1330.