Petition — Rahn v. United States

IN THE

Supreme Court of the Anited States

October Term, 1974

No. 04-1537

CALVIN D. RAHN,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH JUDICIAL CIRCUIT

Leland R. Branting

1224 Bannock Street

Denver, Colorado 80204

William L. Keating

1226 Bannock Street

Denver, Colorado 80204

Attorneys for Petitioner

eo BFADFORD PRINTING. DENVER

i

TABLE OF CASES CITED

Page

Durham v. United States, 403 F2d 190 (9th Cir. 1968) 9

Schoeneman v. United States, 317 F2d 173

cos eee cad h ees 15

Sgro v. United States, 287, U.S. 206 (1932) ......... 15

United States v. Neal, 500 F2d 305 (10th Cir. 1974)... 15

OTHER AUTHORITIES

ee ee ebencseenes l

BP an EEUEED cc cccccccvnnscetseveas 2

Page

ED ovis cane bsneneeeeeeuusebenses 2

DEE oi kudesuneGuceehadecensedeheucess 2

Questions Presented for Review .................. 2

Constitutional Provisions Involved ................ 2

UGE on ccnccecdeccuacestvcncecs 3

POINT I—Whether information of criminal activity

occurring more than twenty (20) months

prior to the issuance of a search warrant

is too remote in time to establish probable

cause at the time of the issuance of the

RR Soa cae ee ae ae a

POINT IIl—Whether the statement and weapons taken

from Petitioner subsequent to the search of

his residence constituted the fruits of the

unlawful search of his residence ........

TEE ee pe PLS, oN ee

IN THE

Supreme Court of the GAnited States

October Term, 1974

No.

CALVIN D. RAHN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

UNITED STATES COURT OF APPEALS FOR

PETITION FOR WRIT OF CERTIORARI TO THE

THE TENTH JUDICIAL CIRCUIT

To: Chief Justice and the Associate Justices of the Supreme

Court of the United States:

Your Petitioner, Calvin D. Rahn, hereby petitions for a

Writ of Certiorari to review the Judgment of the United

States Court of Appeals for the Tenth Judicial Circuit which

affirmed the Judgment of the United States District Court,

District of Colorado, convicting the Petitioner of knowingly

and feloniously embezzling and converting to his own use

property of the United States in violation of 18 U.S.C. §§ 641

and 2.

2

OPINIONS BELOW

The opinion of the Tenth Circuit Court of Appeals has

not yet been assigned a Federal Report of Citation. A copy

of the opinion is appended to this Petition (Appendix A).

The Court’s order denying Petitioner’s Motion for a Rehear-

ing is appended hereto (Appendix B).

JURISDICTION

The order sought to be reviewed was made and entered

on the 28th day of February, 1975. An order denying a

timely motion for rehearing was made and entered on March

25, 1975. The statutory provisions which confer jurisdiction

on this Court to review the Judgment in question by Writ of

Certiorari is 28 U.S.C. § 1245(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether information of criminal activity occurring

more than twenty (20) months prior to the issuance of a

search warrant is too remote in time to establish probable

cause at the time of the issuance of the warrant.

2. Whether the statement and weapons taken from Peti-

tioner subsequent to the search of his residence constituted

the fruits of the unlawful search of his residence.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the Constitution of the United

States:

“The right of the people to be secure in their per-

sons, houses, papers and effects against unreason-

able searches and seizures shall not be violated:

und no warrant shall issue, but upon probable

cause, supported by oath or affirmation, and par-

ticularly describing the place to be searched, and

the persons or things to be seized.”

3

STATEMENT OF THE CASE

(All references to the record below will be Volume num-

ber followed by page number).

On July 10, 1973, Inspector Jackie V. Neal of the Alcohol,

Tobacco and Fire Arms Bureau submitted an Affidavit for

a Search Warrant to United States Magistrate Royce D.

Sickler requesting a Warrant to search Petitioner’s residence

for a Browning over/under 12 gauge shotgun and other

weapons of unknown descripiion. (Vol. VI, Page 4). The

compleie facts alleged in the Affidavit to establish the

grounds for the issuance of the Search Warrant were as

follows:

On September 13, 1969, eighty-four weapons,

seventy-six hand guns and eight long guns, were

seized from Robert L. Nelson at Arapahoe County

in Colorado. Those same weapons were forfeited

to the United States on June 30, 1971 in case num-

ber C-2273 in the District Court for the District of

Coiorado.

Thereafter, nineteen of the above-described weap-

ons were ordered transferred to Washington, D.C.

by James L. Welch, Chief Special Investigator for

Alcohol, Tobacco and Firearms Division, herein-

after referred to as ATF, and those weapons were

shipped to Washington, D.C. on October 6, 1971.

On September 29, 1971, Chief Special Investigator

Welch ordered the destruction of sixty-four weap-

ons from the above seizure, and as a part of that

order, each weapon to be destroyed was listed and

identified. Among the weapon subject to the de-

struction order were:

1. One Springfield .45 caliber automatic,

serial number 406849.

2. One Colt .45 caliber automatic,

serial number 589436.

4

3. One Colt .45 caliber automatic,

serial number 560293.

4. One Luger .44 caliber carbine,

serial number 111042.

5. One Colt .45 caliber automatic,

serial number 90040.

6. One Colt .45 caliber automatic,

serial number 125553.

7. One Springfield .45 caliber automatic,

serial number 74345.

8. One Steyr-Daimler-Puch A.G. .22 caliber rifle,

serial number 568.

9. One Browning over/under 12 gauge shotgun,

serial number 35445.

On October 12, 1971, Area Supervisor Karl E.

Terlau and Special Investigator Calvin D. Rahn,

both of ATF, certified on Treasury Form 3367,

that they had destroyed the above nine weapons,

together with the other fifty-five weapons, at the

Comco Foundry, 6770 Brighton Bivd., in Denver

by melting the weapons. The weapons described

above numbered one through eight were subse-

quently pawned by Area Supervisor Kar! E. Terlau

at the Lakewood Pawnbrokers, Inc. at 5300 W.

Colfax Avenue in Lakewood, Colorado.

Special Agent Carl Newton of the ATF told the

affiant that from about April, 1971 through Sep-

tember, 1971, he had on various occasions seen

and personally inspected a Browning over/under

12 gauge shotgun in a distinctive tan suede case

which was in the evidence vault at the ATF office

in Denver. Agent Newton stated that to the best of

5

his knowledge, the above-described weapon was

the only one of this type in that vault at that time.

During the fall of 1971, Agent Newton accom-

panied Special Agent Calvin D. Rahn on a duck

hunting trip to the Dillon, Colorado area, and at

that time Special Agent Rahn was using a Brown-

ing over/under 12 gauge shotgun which appeared

to Agent Newton to be identical in all respects to

the one he had seen in the ATF vault. At that time

Agent Newton also observed Agent Rahn remove

that shotgun from a tan suede case, which ap-

peared to Agent Newton to be the same case he had

seen in the ATF vault. Agent Newton had noticed

a small soiled spot on the gun case when first seen

by him in the vault, and he said he noticed the

same spot on the case in Agent Rahn’s possession.

Karl E. Terlau was interviewed by the affiant on

July 9, 1973, regarding the fact that the above-

described weapons had not all been destroyed.

During the interview Terlau stated that he and

Agent Rahn had agreed to take an equal number of

weapons from the previously described sixty-four,

and to destroy the rest. Terlau said that he could

not remember which weapons Agent Rahn took,

but that Agent Rahn commented at that time that

several of the weapons were too nice to destroy,

and would be worth much more money if kept for

several years. Terlau claimed that he sold all the

weapons that he took to Lakewood Pawnbrokers.

It is therefore believed that if there was an equal

split as Terlau said, then Agent Rahn got about

eight weapons also.

The affiant has investigated two pawnbrokers in

Lakewood, and the Denver Police pawn shop rec-

ords, and has not been able to find record of any

6

weapons sales by Agent Rahn. The above-de-

scribed premises is the present residence of Special

Agent Calvin D. Rahn according to his employ-

ment record at ATF. Because the affiant cannot

find any records of weapons sales by Agent Rahn,

and because of Rahn’s statement to Terlau regard-

ing the potential for increase in value of some of

the weapons, it is believed that Agent Rahn is still

in possession of the above-described Browning

shotgun and other weapons of unknown descrip-

tion.

On July 13, 1973, ATF inspector John R. Armel executed

a search of the Rahn residence and discovered six (6) weap-

ons and a written list of firearms under the bed in the master

bedroom. (Vol. I, Page 168). These items were subsequently

admitted into evidence at trial as Plaintiff's Exhibits 18, 19,

20, 21, 22, 23 and 24. (Vol. I, Page 178).

Following the search, Billy L. Gaunt, Regional Director

of the Bureau of ATF, made a long distance telephone call

to Rahn in Minnesota and ordered him to return to Denver

to be interviewed by the Inspection Service. (Vol. II, Page

111, and Vol. IV, Page 25, 26). At that time, Gaunt in-

structed Rahn that an ATF agent from the Minneapolis-St.

Paul office would meet him at the airport in order to make

arrangements for his transportation back to Denver. (Vol.

IV, Page 25). The evidence at trial was in dispute as to

whether or not Gaunt also advised Rahn that his home had

been searched. (Compare Vol. II, Page 111 and Vol. III,

Page 34-35 with Vol. IV, Page 25).

On the morning of July 14, 1973, ATF agent James A.

Duff, pursuant to the directions of Inspectors Neal and Ar-

mel, met Rahn at Stapleton International Airport. (Official

Transcript Motions, Page 83; Vol. II, Page 37). Upon meet-

ing Rahn at the airport, Duff conversed with him but at no

time did he advise Rahn of his Miranda rights. (Official

7

Transcript Motions, Page 84). In the course of their con-

versation, Duff informed Rahn that his home had been

searched and that certain weapons had been found there.

(Official Transcript Motions, Page 85). Duff helped Rahn

retrieve his lugagge, which included a suitcase and two rifle

cases, and in sq, doing, engaged in further discussions con-

cerning the contents of the luggage. (Official Transcript

Motions, Page 85, Page 96; Vol. II. Page 38). During the

twenty minute drive from the airport to the ATF office down-

town, Duff and Rahn conversed further and Duff questioned

Rahn relative to the search of his home. (Official Transcript

Motions, Page 97). Upon arriving at the ATF office, Duff

helped Rahn carry the suitcase and two (2) rifle cases into

Duff's office. (Official Transcript Motions, Page 87; Vol. II,

Page 40). At the ATF office, Rahn and Duff met and con-

versed with Inspector Armel and Special Agents William

Rehling and Kenneth Presley. (Vol. II, Page 6). Shortly

thereafter, Rahn’s suitcase, which contained five (5) hand-

guns, was opened in Duff's office. (Vol. Il, Page 40). After

the luggage had been opened, Rahn went into another office

with Inspector Armel and Special Agent Rehling. (Vol. II,

Page 40-41). At that time, Armel advised Rahn of his rights,

(Vol. II, Page 12; Vol. VI, Page 75), and proceeded to con-

duct a ninety (90) minute interview. (Vol. Il, Page 6). The

tape recording of that interview and its subsequent twenty

(20) page written transcription were admitted at trial as

Plaintiff's Exhibits 33 and 33-4. (Vol. Il, Page 21; Vol. V1,

Pages 74-75). During a break in the interview, Inspector

Armel helped Rahn carry the two (2) rifle cases and those

firearms which had been in Rahn’s luggage into the office

where the interview was conducted. (Vol. II, Page 14; Vol.

VI, Page 81). Once the interview resumed, Rahn identified

each of the weapons and turned them over to Armel. ( Vol.

VI, Page 81). These weapons were subsequently received

at trial as Plaintiff's Exhibits 26, 27, 28, 29, 30, 31 and 32.

(Vol. Il, Page 21).

On August 23, 1973, the Federal Grand Jury for the Dis-

trict of Colorado handed down a two-count indictment

charging Rahn with violations of 18 U.S.C. 641 and 1001.

(Vol. VI, Page 1).

On October 31, 1973, Rahn filed a Motion to Suppress

evidence which had been seized from his home pursuant to a

Search Warrant, and also to suppress a confession made by

him subsequent to the search of his residence. (Vol. VI,

Page 7). Oral argument on the Motion to Suppress was

heard and denied by Chief Judge Alfred A. Arraj on Novem-

ber 2, 1973. (Official Transcript Motions, Page 82, Page

106). Thereafter, on February 8, 1974, Chief Judge Arraj

entered an Order disqualifying himself as the trial judge and

the case was transferred to another division within the dis-

trict. On March 20, 1974, Petitioner renewed his Motion to

Suppress and filed a Memorandum Brief in support of that

Motion. (Vol. VI, Page 9). That same day, Judge Fred M.

Winner entered a written Order denying the Motion to Sup-

press. (Vol. VI, Page 24).

Trial to a jury commenced on March 27, 1974, and a ver-

dict of not guilty as to count one and guilty as to count two

Was returned on April 2, 1974. (Vol. V, Page 2).

All issues presented here were duly presented to the Court

ot Appeals. (See Appendix A).

|. WHETHER INFORMATION OF CRIMINAL

ACTIVITY OCCURRING MORE THAN

TWENTY (20) MONTHS PRIOR TO THE IS-

SUANCE Ov A SEARCH WARRANT IS TOO

REMOTE IN TIME TO ESTABLISH PROB-

ABLE CAUSE AT THE TIME OF THE IS-

SUANCE OF THE WARRANT.

In Sgro v. United States, 287, U.S. 206 (1932), this Court

had ovcasion to deal with the question of time and its rela-

tion to probable cause. There the Court said that while there

9

is no fixed time within which proof of probable cause must

be related to the issuance of a warrant,

“It is manifest that the proof must be of facts so

closely related to the time of the issuance of the

warrant as to justify a finding of probable cause at

that time.”

In the instant case, the information in the affidavit relating

to criminal activity was approximately twenty (20) months

old when the affidavit was sworn to. While there was a more

recent confession by a co-defendant, this confession did not

add any recent information regarding the present where-

abouts of the weapons. The only information in the affidavit

which purported to relate to the present concerned an in-

vestigation of two pawn shops and Denver Police pawn shop

records indicating that none of the weapons had been sold

through these outlets.

This Court has never upheld the issuance of a search war-

rant based upon information so remote from the issuance

date as is presented here, nor have any Court of Appeals’

decisions upheld a search warrant based upon an affidavit

which depended on information this remote. Other Federal

decisions appear to be clearly in conflict with the appellate

court’s ruling in this case.

In Durham vy. United States, 403 F2d 190 (9th Cir. 1968),

the Court, in ruling that unlawful activities described in the

Affidavit having occurred at least four (4) months and as

much as ten (10) months prior to the issuance of the warrant

were insufficient to provide a basis for probable cause, stated:

“The most convincing proof that the property was

in the possession of the person or upon the premises

at some remote time in the past will not justify a

present invasion of privacy. There must be reason-

able grounds for believing that the immediate

10

search for which authority is sought may be fruit-

ful.”

See also, Schoeneman v. United States, 317 F2d 173 (D.C.

Cir. 1963):

“The government could cite, and we could find no

case which sustained a search warrant issued more

than thirty (30) days after finding of the evidence

which constituted the basis for the search.”

Indeed, the Tenth Circuit’s decision in United States v.

Neal, 500 F2d 305 (10th Cir. 1974), appears to be directly

contrary to the decision in the instant case.

While there is no yardstick for determining how remote in

time information or conduct must be before it will fail to

justify a determination of probable cause, the court below

has so far departed from existing case law regarding the time

element of probable cause that this issue should be decided

by this Court.

Clearly, time is a crucial element of probable cause. While

it is certainly not the only element to be considered in deter-

mining the existence of probable cause, the decision below

is in conflict with the ruling of other Federal courts and this

Court should therefore rule upon the issue. The element of

time, as presented in the facts of this case, raises an im-

portant constitutional question which should be settled by

guidelines from this Court.

Further, in affirming the decision below, the Court of Ap-

peals gave unwarranted deference to the fact that the magis-

trate had found probable cause and had issued the search

warrant. This deference is a substantial departure from

existing law and is not required or permitted by the Fourth

Amendment. This is an important issue which should be de-

termined by this Court.

11

II. WHETHER THE STATEMENT AND WEAP-

ONS TAKEN FROM PETITIONER SUBSE-

QUENT TO THE SEARCH OF HIS RESI-

DENCE CONSTITUTED THE FRUITS OF

THE UNLAWFUL SEARCH OF HIS RESI-

DENCE.

The Petitioner raised this issue at the Court of Appeals.

However, inasmuch as the Court affirmed the lower Court's

decision regarding the legality of the search, this issue was

not decided. The determination of this issue is essential to a

complete ruling in this case if the search of Petitioner’s resi-

dence is held to be illegal.

CONCLUSION

This Court should grant certiorari, and the judgment be-

low should be reversed.

Respectfully submitted,

WILLIAM L. KEATING

1226 Bannock Street

Denver, Colorado 80204

303-222-1601

LELAND R. BRANTING

1224 Bannock Street

Denver, Colorado 80204

303-255-2015

Attorneys for the Petitioner

12

APPENDIX A

Publish

Gntied States Court of Appeals

TENTH CIRCUIT

JANUARY, 1975, TERM

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

. No. 74-1324

CALVIN D. RAHN,

Defendant-A ppellant. ;

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO

(D. C. No. 73-CR-299)

Robert A. Wagner (Marshall A. Fogel, on the brief), Den-

ver, Colorado, for Defendant-Appellant.

J. Terry Wiggins, Assistant United States Attorney (James

L. Treece, United States Attorney, on the brief ), Denver,

Colorado, for Plaintiff-Appellee.

Before BREITENSTEIN, HILL and DOYLE, United States

Circuit Judges.

HILL, Circuit Judge.

13

This is a direct appeal from a conviction for violations of

18 U.S.C. §§ 641 and 2.’

The issues presented in this appeal involve only the denial

of suppression of evidence due to an allegedly unlawful

search and seizure.

On July 10, 1973, Inspector Neal of the Alcohol, Tobacco

& Firearms Bureau (ATF), Office of Inspection, submitted

an Affidavit for Search Warrant to a United States Magis-

trate seeking a warrant to search appellant’s residence. The

affidavit resulted from an investigation by the ATF inspec-

tion service into alleged misuse of seized property by ATF

agents. Appellant was an ATF special investigator stationed

in Denver.

Based upon the affidavit, the magistrate issued the re-

quested search warrant on July 10. The warrant was exe-

cuted on July 13; searchers discovered and seized six weap-

ons and a written list of firearms from appellant’s home. Ap-

pellant and his family were on vacation during this time

period. On July 13 the ATF regional director, Billy Gaunt,

1

18 U.S.C. § 641 provides:

“Whoever embezzles, steals, a, or knowingly converts to his use or the

use of another, or without authority, sells, conveys or disposes of any record,

voucher, money, or thing of value of the United States or of any department or

agency thereof, or any property made or being made under contract for the

nited States or any department or agency thereof; or

“Whoever receives, conceals, or retains the same with intent to convert it to

his use or gain, knowing it to have been embezzled, stolen, purloined or con-

verted —

“Shall be fined not more than $10,000 or imprisoned not more than ten years,

or both; but if the value of such property does not exceed the sum of $100, he

a= be fined not more than $1,000 or imprisoned not more than one year, or

both.

“The word ‘value’ means face, par, or market value, or cost Price, either

wholesale or retail, whichever is greater.”

18 U.S.C. § 2 provides:

“(a) Whoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable as a

principal.

“(b) Whoever willfully causes an act to be done which if directly performed

by him or another would be an offense against the United States, is punishable

as a principal

bs

telephoned appellant and ordered him to return to Denver to

meet with the inspection service.

The next day appellant flew into Stapleton International

Airport and was met by Jim Duff, appellant’s immediate

supervisor and friend. Appellant had with him seven firearms

which had been certified as destroyed. Appellant was taken

to the ATF office in Denver; he made a lengthy incriminating

Statement and turned over the seven weapons to the ATF

investigators.

Appellant and his former supervisor, Karl Terlau, were

indicted for one count of violating 18 U.S.C. §§ 1001 and 2,

and one count of violating 18 U.S.C. §§ 641 and 2. Terlau

pled guilty to one count and testified at appellant's trial. The

weapons and list seized in the residence search, the seven

firearms appellant brought back to Denver, and appellant's

July 14 statement were admitted as evidence. The jury found

appellant guilty as to the second count, conversion of gov-

ernment property to his own use.

Appellant raises three issues. (1) The affidavit was based

on observations of alleged unlawful activity made more than

a year and a half before the application for a search warrant:

consequently, the information in the affidavit was not recent

enough to establish probable cause for the search warrant to

issue. The residence search was unlawful and the evidence

seized should have been suppressed. (2) The affidavit failed

to give the magistrate probable cause to believe the weapons

were, in fact, located in appellant’s residence. (3) The evi-

dence obtained from appellant on July 14, 1973, was the

direct result and product of the unlawful residence search.

We are guided by several general principles in our review

of this affidavit. Affidavits for search warrants are to be

tested and interpreted in a common sense and realistic man-

ner. United States v. Ventresca, 380 U.S. 102 (1965). Re-

viewing courts should give deference to determinations of

15

probable cause by issuing magistrates. United States v. Neal,

500 F2d 305 (10th Cir. 1974); United States v. DePugh,

452 F2d 915 (10th Cir. 1971), cert. den’d, 407 U.S. 920

(1972); United States v. Berry, 423 F2d 142 (10th Cir.

1970).

It is generally recognized that probable cause is

one of probabilities and a valid warrant may issue

when the circumstances before a proper officer are

such that a person of reasonable prudence would

believe that a crime was being committed on the

premises to be searched or evidence of a crime was

being concealed there. United States v. Neal, supra.

Probable cause is not determined by hindsight but as of the

time the affidavits were presented to the magistrate. Schoene-

man v. United States, 317 F2d 173 (D.C. Cir. 1963).

Doubtful cases should be largely resolved by the preference

to be given warrants. United States v. Ventresca, supra.

Appellant’s first attack on the affidavit’s sufficiency deals

with the timeliness of the information. Time is a crucial ele-

ment of probable cause. United States v. Holliday, 474 F.2d

320 (10th Cir. 1973); United States v. Johnson, 461 F.2d

285 (10th Cir. 1972). The Supreme Court has discussed

this element of probable cause:

“... the proof must be of facts so closely related

to the time of the issue of the warrant as to justify

a finding of probable cause at that time.” Sgro v.

United States, 287 U.S. 206 (1932).

In Neal, this Court stated that “[p]robable cause existing at

some time in the past will not suffice unless circumstances

exist from which it may be inferred that the grounds con-

tinued to the time the affidavit was filed.” However, probable

Cause is not determined by merely counting the number of

days between the time of the facts relied upon and the war-

rant’s issuance. United States v. Johnson, supra.

16

The search warrant here was issued on July 10, 1973, the

affidavit detailed several occurrences involving the property

sought. Terlau, in an interview the day before the warrant

issued, stated that in 1971 he and appellant each had agreed

to take several of the weapons. Terlau also said that appel-

lant had commented when they took the weapons that several

of the weapons were too nice to destroy and would be worth

more money if kept for several years. The affidavit recounted

Special Agent Carl Newton’s statement in which he remem-

bered seeing appellant in the fall of 1971 using a Browning

over/under 12 gauge shotgun identical to one Newton had

seen in the ATF vault. That weapon was one subject to the

destruction order according to the affidavit. The affidavit

indicated Terlau had sold his weapons to Lakewood Pawn-

brokers: the affiant had investigated two pawnbrokers in

Lakewood and had checked the Denver Police pawn shop

records. This search had not revealed any sales of weapons

hy appellant.

The affidavit clearly would give a magistrate probable

cause to believe appellant had taken some of the weapons.

Because of the unique facts of this case, we believe the affi-

davit also gave the magistrate probable cause to believe ap-

pellant still possessed the weapons in spite of the lapse of

time between the facts relied on and the warrant’s issuance.

Newton's account indicates appellant had appropriated at

least one of the weapons for his personal use. This appropria-

tion combined with the comment Terlau remembered that

appellant believed the weapons would appreciate in value

would give more than a suspicion appellant still possessed

the weapons. The investigation, although far from extensive,

disclosed appellant apparently had not disposed of the weap-

ens in the manner Terlau had utilized. Furthermore. the

magistrate, employing the common sense interpretation of

affidavits approach, may have recognized appeilant’s aware-

ness, as an ATF agent, that in selling the guns he would be

17

taking a real risk of detection. Consequently, we believe the

affidavit provided circumstances from which it could be in-

ferred that the probable cause clearly existing in the past

continued to the time the affidavit was filed. The affidavit

information was recent enough to establish probable cause

in this case.

Appellant also attacks the sufficiency of the affidavit by

contending it did not show probable cause to believe the arti-

cles listed in it would be found in the residence. Both parties

cite United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970),

where the Ninth Circuit upheld the search of a residence and

said:

“The situation here does not differ markedly

from other cases wherein this court and others,

albeit usually withou. discussion, have upheld

searches although the nexus between the items to

be seized and the place to be searched rested not on

direct observation . . . but on the type of crime, the

nature of the missing items, the extent of the sus-

pect’s opportunity for concealment, and normal

inferences as to where a criminal would be likely

to hide stolen property.”

Lucarz and the other cases cited by appellant and the gov-

ernment state the general rules in this area, those cases, how-

ever, are persuasive only to the degree they present facts

similar to those now before the court. The issue for our deter-

mination is whether the facts and circumstances described in

the affidavit would warrant a man of reasonable caution to

believe that the articles sought were located at appellant’s

residence. Lucarz v. United States, supra. The affidavit need

not contain information providing “ . . . certainty that the

objects sought will be found as a result of the search.” Porter

v. United States, 335 F.2d 602 (9th Cir. 1964), cert. den’d,

379 U.S. 983 (1965).

18

As appellant points out, the affidavit does not contain

anyone's observation of the property at the residence; that

missing information, however, is not fatal to a determination

that probable cause existed to search the residence. See

United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973),

cert. den'd,_ U.S. ____ (1974); United States v. Lucarz.

supra. The affidavit, as we have determined, gave probable

cause to believe appellant still possessed the weapons. The

affidavit contained the report indicating appellant had used

One of the weapons for hunting purposes. The statement con-

cerning the guns’ appreciation potential indicates appellant

would have given some care to their storage. As Chief Judge

Arraj stated, in denying the original motion to suppress: “It

is reasonable to assume that his house was where he kept

things and it is pretty normal I believe for individuals to keep

weapons in their homes, particularly hunting weapons and

weapons which may be kept for the safety of the family.”

Here an ATF agent was believed to possess the weapons;

certainly, he would not have had the weapons at his office.

Admittedly there are other places where the guns might have

been stored: yet. we believe these facts and circumstances

gave the magistrate probable cause to believe the weapons

would be found as a result of the search of appellant's present

residence.

In making these decisions concerning the affidavit's suf-

ficiency, we have given deference to the issuing magistrate’s

determination and have remembered that even doubtful

cases are to be resolved largely by the preference to be given

Warrants. Having determined that the affidavit provided

probable cause for the search warrant to issue, we hold the

search was proper. Consequently, we do not reach appellant's

third contention concerning “fruit of the poisonous tree”.

AFFIRMED.

19

APPENDIX B

MARCH TERM — March 25, 1975

Before The Honorable David T. Lewis, Chief Judge, Honor-

able Jean S. Breitenstein, Honorable Delmas C. Hill, Honor-

able Oliver Seth, Honorable William J. Holloway, Jr.,

Honorable Robert H. McWilliams, Honorable James E.

Barrett and Honorable William E. Doyle, Circuit Judges

UNITED STATES OF AMERICA,

Plaintiff-Appellee, |

VS. - No. 74-1324

CALVIN D. RAHN,

Defendant-A ppellant.

This matter comes on for consideration of the petition for

rehearing and suggestioi for rehearinng en banc filed by the

appellant in the captioned case.

Upon consideration whereof, the petition for rehearing is

denied by Circuit Judges Breitenstein, Hill and Doyle to

whom the case was argued and submitted.

The petition for rehearing having been denied by the

Original panel to whom the case was argued and submitted

and no member of the panel nor judge in regular active ser-

vice on the Court having requested that the Court be polled

on rehearing en banc, Rule 35, Federal Rules of Appellate

Pr cedure, the suggestion for rehearing en banc is denied.

HOWARD K. PHILLIPS, Clerk