# Petition — Rahn v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0353%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 825 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0353%3A1. Public record. Not legal advice.