UNITED STATES of America; Government of the Virgin Islands, Appellants v. Ernie RITTER; Reggy Ritter; Dale Ritter, 416 F.3d 256

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. I. BackgRound 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 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 photograph (“Attachment ‘A’ ’’j, 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.Y.I. further pictured on Attachment ‘A’ ”, 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, he was the only witness to testify regarding the raid.

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 sént 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.

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 patdown by officers. B. District Court Proceedings The District Court granted the defendants’ motion to suppress all physical evidence.

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 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, 107 S.Ct. 1013, 94 L.Ed.2d 72 (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 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. Analysis 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.

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, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)), and exercise plenary review over its legal determinations, see United States v. Coggins, 986 F.2d 651, 654 (3d Cir.1993).

However, when 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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (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 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, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (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, 68 S.Ct. 367, 92 L.Ed. 436 (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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[T]he Fourth Amendment requires no more.” Id.

The 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, 103 S.Ct. 2317) — could “not find that the search warrant application was devoid of probable cause,” notwithstanding 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. 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, 103 S.Ct. 2317 (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. 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.2002) (noting that “direct evidence linking the residence to criminal activity is not required to establish probable cause”); United States v.

Jones, 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, 103 S.Ct. 2317 (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 238,103 S.Ct. 2317). On the other hand, however, in Alabama v.

White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (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, 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 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, 103 S.Ct. 2317. Moreover, we review for a “substantial basis” for concluding that probable cause existed, id. at 236, 103 S.Ct. 2317 (citation omitted), which is one step removed from a directed probable cause inquiry applicable when reviewing warrantless stops and searches.

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 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, 68 S.Ct. 367.

A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” Spinelli [v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (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, 103 S.Ct. 2317 (quoting and United States v.

Ventresca, 380 U.S. 102, 108, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). The Supreme Court has clearly indicated that the conclusions of a neutral magistrate regarding 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, 103 S.Ct. 2317. 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, 104 S.Ct. 3405, 82 L.Ed.2d 677 (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, 97 S.Ct. 2476, 53 L.Ed.2d 538 (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’ 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, 107 S.Ct. 1013. 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 apartment. “As soon as they became aware of that fact, the search was discontinued.” Id. at 79,107 S.Ct. 1013.

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, 107 S.Ct. 1013. 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, 107 S.Ct. 1013. “The question is whether that factual mistake invalidated a warrant that undoubtedly would have been 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 ivas 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 authorized 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, 107 S.Ct. 1013. Therefore the District Court’s 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, 107 S.Ct. 1013. 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 lawful because the officers carried a valid warrant authorizing entry upon the premises. Id. at 86, 107 S.Ct. 1013. 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, 107 S.Ct. 1013. Here, notwithstanding their discovery of multiple 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, 107 S.Ct. 1013 (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.) 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 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.

We cannot discern such determinative facts from the record, and we will REMAND to the District Court for further fact-finding in this regard. 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 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, 100 S.Ct. 338, 62 L.Ed.2d 238 (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, 100 S.Ct. 338. 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 88-89,100 S.Ct. 338.

In reviewing the constitutionality of the defendant’s patdown, the Supreme Court explained: 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. Id. at 93-94, 100 S.Ct. 338 (footnote and citation omitted). 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, 100 S.Ct. 338. Therefore, the evidence discovered on Dale Rit-ter’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. 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.

Conclusion 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.

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 Rit-ter’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. .

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. . 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. . Only two witnesses testified in total — Howell and Andre Peterson, an investigator for the Office of the Public Defender. .

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.” .The motion was filed by defendant Ernie Ritter, and then joined by his brothers Reginald and Dale Ritter. . 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, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972) (White, J„ concurring) (citing Walling v. Gen. Indus.

Co., 330 U.S. 545, 67 S.Ct 883, 91 L.Ed. 1088 (1947)). Because the Ritters have attacked on appeal the District Court's reasoning, not the result achieved, they are not barred from revisiting the probable cause issue here. See Mass. Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976). . A Terry stop, of course, requires only reasonable suspicion, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a less demanding level of suspicion than is required to establish probable cause. .

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. . 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, 210 Ill.Dec. 366, 652 N.E.2d 1342 (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)). .

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.) . 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. .

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. 85, 100 S.Ct. at 343-44 (citing United States v.

Di Re, 332 U.S. 581, 583-587, 68 S.Ct. 222, 92 L.Ed. 210 (1948)).