574
Thomas, J., dissenting
involving "warrantless" searches do not generally involve situations in which an officer has obtained a warrant that is later determined to be facially defective, but rather involve situations in which the officers neither sought nor obtained a warrant. See, e. g., Anderson v. Creighton, 483 U. S. 635 (1987) (officer entitled to qualified immunity despite conducting a warrantless search of respondents' home in the mistaken belief that a robbery suspect was hiding there); Payton v. New York, supra (striking down a New York statute authorizing the warrantless entry into a private residence to make a routine felony arrest). By simply treating this case as if no warrant had even been sought or issued, the Court glosses over what should be the key inquiry: whether it is always appropriate to treat a search made pursuant to a warrant that fails to describe particularly the things to be seized as presumptively unreasonable.
The Court bases its holding that a defect in the particularity of the warrant by itself renders a search "warrantless" on a citation of a single footnote in Massachusetts v. Sheppard, 468 U. S. 981 (1984). In Sheppard, the Court, after noting that "the sole issue . . . in th[e] case is whether the officers reasonably believed that the search they conducted was authorized by a valid warrant," id., at 988, rejected the petitioner's argument that despite the invalid warrant, the otherwise reasonable search was constitutional, id., at 988, n. 5. The Court recognized that under its case law a reasonableness inquiry would be appropriate if one of the exceptions to the warrant requirement applied. But the Court declined to consider whether such an exception applied and whether the search actually violated the Fourth Amendment because that question presented merely a "fact-bound issue of little importance." Ibid. Because the Court in Sheppard did not conduct any sort of inquiry into whether a Fourth Amendment violation actually occurred, it is clear that the Court assumed a violation for the purposes of its analysis. Rather than rely on dicta buried in a footnote in
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