should prevail); Velardi, 40 F.3d at 575-576 (upholding the defense of qualified immunity without determining whether the warrant at issue was consistent with the Fourth Amendment). To defeat the defense of qualified immunity, the right alleged to have been violated must be clearly established at a level of specificity such that "a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640.
This summary judgment motion presents two primary issues, one relating to the validity of the warrant, the other relating to the execution of the warrant.
VALIDITY OF THE WARRANT
A search warrant issued by a neutral magistrate, upon a finding of probable cause, must be afforded great deference and creates a presumption that the officers executing the warrant acted in an objectively reasonable fashion. United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984); Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983); Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). The Supreme Court has held that the validity of a warrant is not impaired if it is based on seemingly reliable information which is later found to be erroneous. Illinois v. Rodriguez, 497 U.S. 177, 184, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990). Negligent or otherwise innocent misstatements or omissions in a warrant application do not invalidate the warrant so long as the incorrect or omitted information does not evidence a reckless or intentional disregard for the truth. Franks v. Delaware, 438 U.S. 154, 171, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).
Consequently, in order to defeat qualified immunity, plaintiffs must show that the affiant knowingly and intentionally, or with reckless disregard for the truth, made false statements in, or omitted material facts from, the affidavit, and that the false statements or material omissions were necessary to the finding of probable cause. Velardi, 40 F.3d at 573; Golino, 950 F.2d at 870. The "validity of the warrant must be assessed on the basis of information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate." Maryland v. Garrison, 480 U.S. 79, 85, 94 L. Ed. 2d 72, 107 S. Ct. 1013 (1987). Defendant officers should only be deprived of immunity "if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue." Malley v. Briggs, 475 U.S. at 341.
Plaintiffs allege that Detective Morra's warrant application and affidavit misled the magistrate by describing 318 South Sixth Avenue as a "house" or "dwelling" and not by explicitly stating that the building contained three units, information the officers knew or should have known as a result of their observation of the building. This omission or mischaracterization is not material, however, because in the circumstances of this case it could not plausibly have altered the magistrate's determination that probable cause existed. Probable cause to search the first floor apartment would have still existed had Detective Morra's affidavit described the building as containing three units, one on each floor. Because Detective Morra only requested authorization to search the first floor and the basement of the building, the fact that his affidavit did not mention that there were other apartments on the second and third floors of the building is immaterial.
Omissions or mischaracterizations are material if they cause the warrant to encompass additional premises as to which there is no probable cause, thus making the warrant overbroad. See Maryland v. Garrison, 480 U.S. at 85 (noting that a factual mistake as to a building's floor plan may make a warrant overbroad by encompassing areas for which there is no probable cause to search). In this case, however, the problem is not that the warrant identified too broad an area to be searched, but rather that the warrant, as a result of erroneous information, identified the wrong area to be searched. The failure to state explicitly that the building contained three units did not cause the warrant to be overbroad and thus did not vitiate the magistrate's probable cause determination. In sum, Detective Morra's arguable mischaracterization of the building does not invalidate the search warrant. See Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991) (noting that courts should not invalidate a warrant by interpreting the affidavit in a hypertechnical, rather than commonsense, manner)(quoting United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965) (internal citations omitted)). Nor does the arguable mischaracterization of the building permit any plausible inference of conscious wrongdoing or reckless disregard for the truth by Detective Morra. There is no evidence that Detective Morra referred to 318 South Sixth Avenue as a "dwelling" or a "house" rather than a three family apartment building in order to bolster his affidavit or deceive the magistrate. There was no apparent reason for Detective Morra to attempt to conceal the fact that the building contained three units since disclosure of that fact would not have altered the magistrate's probable cause determination.
Plaintiffs also note that Bowen was linked to the first floor of 318 South Sixth Avenue, rather than simply to the building itself, by only one piece of evidence, the statement by DeAndre Harris, an individual in custody on serious unrelated charges, whose credibility, under Departmental regulations, was suspect. However, the validity of the probable cause determination and the issuance of the warrant does not turn on the strength of one piece of evidence viewed in isolation, but on the totality of the evidence presented to the magistrate. Rivera, 928 F.2d at 602.
Here, the constellation of evidence presented to the magistrate established probable cause. The statements of DeAndre Harris and the informant were independently obtained. The information Harris provided, although ultimately found to be erroneous, was consistent with the information previously provided by the informant. Harris, for example, identified the same building and the same vehicle that the informant had previously linked to Bowen. Further, Detective Morra's sighting of Bowen's car at 318 South Sixth Avenue and the positive identification of Bowen by Harris and the informant all were consistent with Harris' statement that Bowen's girlfriend lived in, and he used, the first floor apartment. The evidence, taken as a whole, indicates that the police were reasonable -- albeit mistaken -- in believing that the suspect, Charles Bowen, was linked to the first floor of 318 South Sixth Avenue. Thus, Detective Morra's conduct in procuring the search warrant does not indicate an intentional or reckless disregard for the truth and the officers' reliance on the warrant was not unreasonable. This conclusion, as previously noted, is buttressed by the fact that substantial deference is to be accorded a magistrate's independent probable cause determination. Golino, 950 F.2d at 870-871.
EXECUTION OF THE WARRANT
A more substantial question is posed by the claim that the officers' execution of the warrant violated plaintiffs' clearly established constitutional rights. Plaintiffs have offered evidence that suggests that shortly after the initiation of the search some of the officers began to notice discrepancies between the apartment they entered and the information they had been provided. Certain of the officers admitted in deposition testimony that the Lewis' apartment did not conform to the floor plan described by DeAndre Harris. At least one of the officers knew immediately that the structure was built on a "slab" and therefore did not have a basement, contrary to the information provided by Harris. Other officers realized within the first ten minutes that the building had no basement.
The general Fourth Amendment principle that officers may not remain at a premises without the occupants' consent if there is no probable cause justifying their presence is clearly established. See Maryland v. Garrison, 480 U.S. at 87 (officers must discontinue search of premises erroneously included within scope of warrant due to erroneous belief that a floor of a building contained one apartment rather than two).
There is no bright line rule, however, as to what discrepancies between the premises identified in the warrant and the premises encountered by the officers are significant enough to alert the officers that the warrant identifies the wrong location and to require their immediate departure. This problem arises because information that may be sufficient to establish probable cause may nonetheless not be accurate in all respects. In this case, there is no evidence that the officers unreasonably continued to search after they knew they were in the wrong apartment. The officers vacated the premises shortly after the conclusion of the search and they did not unreasonably prolong the search after they determined that they had entered the wrong apartment. The officers' belief that the continuance of the search would not violate the Fourth Amendment rights of the occupants of the premises was not objectively unreasonable.
The manner in which the officers conducted the search was also reasonable. The officers' detention of the occupants of the apartment pending the outcome of the search was warranted, as officers have a right to detain occupants of a premises being searched irrespective of individualized suspicion. Rivera, 928 F.2d at 606; Crosby v. Hare, 932 F. Supp. 490, 493 (W.D.N.Y. 1996); United States v. Nelson, 931 F. Supp. 194, 201 (W.D.N.Y. 1996). The officers' unannounced entry into the apartment at night was authorized by the warrant and approved by the magistrate. See United States v. Brown, 52 F.3d 415, 420-424 (2d Cir. 1995) (upholding an unannounced entry in a search for illicit drugs and where the occupants may have been armed). Plaintiffs note that the officers had their guns drawn, which, again, is to be evaluated not in light of innocent families' likely reaction, but in light of the nature of the criminal activity on the basis of which the warrant was issued. The officers' conduct in this regard was, again, objectively reasonable.
Plaintiffs also claim that their apartment was ransacked. However, plaintiffs have presented no evidence that the officers wantonly damaged or destroyed property or conducted the search in a manner inconsistent with its professed purpose of finding illicit drugs. Rather, the only inference that can be drawn is that the officers conducted a thorough search, as they are permitted to do in executing a warrant.
The sudden nighttime intrusion into this family's home of a dozen or more armed police officers was no doubt a terrifying and unfortunate experience. The Lewis family was blameless; they neither committed, nor were suspected of, any wrongdoing. But their blamelessness is not the standard by which the officers' conduct is measured. In retrospect, it is clear, as plaintiffs point out, that different steps might have prevented the erroneous search. In evaluating the individual defendants' qualified immunity claim, however, the standard is not whether the officers' conduct could have been improved upon. Rather, the question is whether it was reasonable for the officers--and the magistrate--to have concluded that the issuance and execution of the warrant did not violate the Fourth Amendment.
We hold that it was and that the officers are entitled to qualified immunity.
For the reasons stated above, defendants' motion for summary judgment is granted. Since plaintiffs' federal law claims have been dismissed before trial, the remaining state law claims are dismissed as well. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Accordingly, the state law claims are dismissed without prejudice.
Barrington D. Parker, Jr.
Dated: White Plains, New York
November 13, 1997