Petition — Lee v. United States

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IN THE h ae

SUPREME COURT OF THE UNITED an:

OCTOBER TERM, 1978

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WANDA JOYCE LEE,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

COBB & OLDFIELD

WILLIAM C. OLD' ELD

P.O. Box 1078

211 East Fourth Street

Covington, Kentucky 41012

Attorney for Petitioner

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

INDEX

OPINIONS BELOW

JURISDICTIONAL STATEMENT

QUESTIONS PRESENTED FOR REVIEW

CONSTITUTIONAL PROVISIONS AND THE

FEDERAL RULES OF CRIMINAL PROCE-

DURE

STATEMENT OF THE CASE

REASON FOR THE ALLOWANCE OF THE

WRIT

Where a search warrant is sought exclusively

on the information provided by the inform-

ant and that information is entirely a conclu-

sionary statement the test of Aguilar-Spinelli

is not satisfied by merely showing that the in-

formant was in a position to obtain information

as the Court below held but the affidavit must

set forth some of the facts observed by or told

to the informant that were used by him to

form his conclusions as the Second Circuit has

required in United States v. Karathanos, 531 F.

2d 26 (2nd Cir., 1976) cert. den. 428 U.S.

910.

CONCLUSION |

Page

15

II.

APPENDIX: Page

Judgment of United States Court of Appeals for

the Sixth Circuit la

Affidavit for Search Warrant 2a-4a

Search Warrant 5a-6a

Return . .. Ta-Ba

Order of United States District Court 9a

Memorandum Opinion of United States District

Court 10a-22a

Opinion of United States Court of Appeals for the

Sixth Circuit 23a-39a

Order of United States Court of Appeals for the

ass Te ac os ee Cee es ab bane k ai 40a

AUTHORITIES

Cases Cited:

Aguilar v. Texas,

878 U.S. 108 (1964) 6.7, 10, 32: ts. 34

Spinelli v. U.S.,

393 U.S. 410 (1969) 6, 7, 10, 18, 14

United States v. Galante,

547 F.2d 733 (2nd Cir., 1976) 12

United States v. Kahan,

572 F.2d 923 (2nd Cir., 1978) 13

United States v. Karathanos,

531 F.2d 26 (2nd Cir., 1976), Cert. den. 428

U.S.910 ° 2, & & i By 4

Statutes:

United States Constitution

Fourth Amendment 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO. —--————

WANDA JOYCE LEE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Your Petitioner, Wanda Joyce Lee, respectfully peti-

tions this Honorable Court for a Writ of Certiorari to

review a Judgment and Opinion in the United States

Court of Appeals for the Sixth Circuit rendered in this

cause.

OPINIONS BELOW

An Order and Memorandum (Appendix 10a) was en-

tered by the District Court on February 24, 1977 and is

reported at 427 F. Supp. 318. The Opinion of the Sixth

2

Circuit Court of Appeals (Appendix 23a) was filed on

August 21, 1978 and is not yet reported.

JURISDICTIONAL STATEMENT

The date of the Judgment of the Court of Appeals

sought to be reviewed and the date of its entry is August

21, 1978. (App. la) An Order of the Court of Appeals

denying a timely Petition for Rehearing was entered Octo-

ber 20, 1978 (App. 40a). This Court's jurisdiction is

envoked under 28 USC 1254 (1).

QUESTIONS PRESENTED FOR REVIEW

Where a searci warrant is sought exclusively on the

information provided by the informant and that in-

formation is entirely a conclusionary statement the test

of Aguilar-Spinelli is not satisfied by merely showing

that the informant was in a position to obtain in-

formation as the Court below held but the affidavit

must set forth some of the facts observed by or told

to the informant that were used by him to form his

conclusions as the Second Circuit has required in

United States v. Karathanos, 531 ¥. 2d 26 (2nd Cir.,

1976) Cert. den. 428 U.S. 910.

3

CONSTITUTIONAL PROVISIONS, JUDICATORY

PROVISIONS AND THE FEDERAL RULES OF

CRIMINAL PROCEDURE

l. Fourth Amendment to the United States Constitution:

AMENDMENT IV.

The right of the people to be secure in their persons,

houses, papers, and etflects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause sup-

ported by oath or affirmation, and particularly describ-

ing the place to be searched, and the persons or things

to be seized.

STATEMENT OF THE CASE

On November 15, 1976 Federal Agent Gerald C. Ganten-

bein, Bureau of Alcohol, Tobacco and Firearms, appeared

before the United States Magistrate, ]. Gregory Wehrman,

and subscribed to Affidavit in support of his requested

Search Warrant for the premises of the Petitioner, Wanda

Lee, located at 270 Webster Lane, Independence, Ken-

tucky (Appendix 2a). The Affidavit provided in_perti-

nent part that Gantenbein had, on November 15, received

information from a reliable confidential informant to the

effect that in the past five (5) days the informant observed

a subject named Wanda Lee in possession at her residence

of a large quantity of stolen property that was taken in

residential burglaries in the State of Ohio. ‘The inform-

ant further told Agent Gantenbein that in addition to the

stolen property there were several stolen firearms which

were described as a miscellaneous lot of long guns and

hand guns totaling approximately 15 in number. The

Affidavit further related that the informant had stated that

several of the firearms were shot guns and rifles of vary-

ing descriptions and calibers. In an effort to investigate

the informant’s information Agent Gantenbein stated that

he observed two vehicles parked in front of the property

at 270 Webster Lane, Independence, Kentucky and he

caused a license check to be made on those two vehicles.

The results of that check disclosed that both vehicles were

registered to the Petitioner herein, Wanda Lee.

As a result of the Affidavit of Agent Gantenbein, U.S.

Magistrate Wehrman issued a Search Warrant for the

residence of the Petitioner at 270 Webster Lane, Inde-

pendence, Kentucky (Appendix 5a). The search of the

Petitioner's residence was commenced at approximately

3:00 P.M. and continued until approximately.12:00 P.M.

that same day. Prior to commencing the search Agent

Gantenbein requested that an ofhcer of the Kentucky

State Police accompany him on the search.

After Agent Gantenbein, the other agents and the State

Police Othcer were on the premises approximately five

minutes a large quantity of sterling silver was discovered

throughout the residence. After the discovery of this sil-

verware the Kentucky State Police Officer took over the

investigation of this aspect of the case. Numerous phone

calls were made to determine whether or not the silver

had been stolen, after determining that it had been stolen

in the State of West Virginia the State Officer seized the

silver. It was removed to the State Police Headquarters

where it was inventoried and stored until some time in

January of 1977. Thereafter, it was turned over to the

Federal Burcau of Investigation for use in connection with

the Indictment that was returned in this case. It should

also be noted that the inventory that was prepared of the

silver seized from the Petitioner’s residence was prepared

on forms used by the Kentucky State Police ‘and it was

5

that subsequent inventory that was eventually filed

with the United States Magistrate ostensibly pursuant to

the terms of the Search Warrant issued by him several

months prior. Agent Gantenbein further testified that while

he did not find the silverware personally he is unclear

as to which particular person discovered the silverware

first. However, it appears uncontroverted that the silver-

ware was scattered throughout the residence, but prin-

cipally concentrated in the laundry room. Likewise, it

is uncontroverted that after discovering the silverware

neither Agent Gantenbein, the officer from the Kentucky

State Police, or any other law enforcement officer sought

to obtain any other type of warrant to authorize the seizure

of the silverware; this despite the fact that the search

was commenced at approximately 3:00 P.M. and despite

the fact that the residence of the Petitioner is located

in a relatively urban area with easy access to either the

United States Magistrate or one of almost countless state

judicial officers who would, under state law, be authorized

to issue an additional warrant.

REASON FOR ALLOWANCE OF THE WRIT

Where a search warrant is sought exclusively on

the information provided by the informant and

that information is entirely a conclusionary

statement the test of Aguilar-Spinelli is not satis-

fied by merely showing that the informant was in

a position to obtain information as the Court be-

low held but the affidavit must set forth some of

the facts observed by or told to the informant

that were used by him to form his conclusions

as the Second Circuit has required in United

States v. Karathanos, 531 F. 2d 26 (2nd Cir., 1976)

Cert. den. 428 U.S. 910.

It is essential to the consideration of this matter that

it is understood that the Petitioner was, at the time this

search warrant was executed, not convicted of any type

of felony whatsoever and consequently, her possession of

a firearm or 15 firearms would not be an illegal act per

se, but would only be illegal in the event that those fire-

arms were stolen and had been transported from one State

to another. Likewise, it is not alleged in the Affidavit

that the Petitioner was ever in the possession of any type

of contraband whose possession would be illegal per se,

such as narcotics, certain types of explosive devices and/or

automatic weapons.

In the Opinion filed by the District Court Judge, the

Honorabie Eugene FE. Siler, Jr., it is reasoned that the Affi-

davit to support the Search Warrant must set forth some of

the underlying circumstances forming the basis for the in-

formant’s conc'usion that there is illegal activity or evi-

dence thereof om the premises. The District Court found

that when the Affidavit was held to that standard it did

not sufficiently set forth any underlying circumstances that

formed the basis of the informant’s conclusion. Judge Cecil

of the Sixth Circuit Court of Appeals, in his Opinion re-

versing the decision of the District Court, found that “We

conclude that the personal observance of the informant

of a large quantity of stolen property taken in residential

burglaries in Ohio, and having seen the firearms in ques-

tion, satisfy the requirement of Aguilar v. Texas, 378 US.

108 (1964), that some “underlying circumstances’ must

be shown by the informer '

Succinctly stated, the Court of Appeals felt that since

the Afhdavit established that the informant had been on

the property in the last five days, it was sufficient under-

lying circumstances to support the conclusion that the

property, including the firearms, were stolen in residential

burglaries in the State of Ohio. The District Court, in

its Opinion, felt that while mere presence might be suf-

ficient for the underlying circumstances in situations in-

volving the possession of an item ‘that is illegal to possess

per se, it was lacking in providing underlying circumstances

to support the conclusion that the items in question were

stolen in the State of Ohio or for that matter, any other

state other than the Commonwealth of Kentucky for as

the District Court aptly pointed out, had all of the prop-

erty, including the firearms, been stolen in the Common-

wealth of Kentucky, there would have been no jurisdiction

in the Federal Courts and no probable cause to believe

that a federal crime was or had been committed.

This Court stated in Aguilar, supra, and Spinelli v. U.S.,

393 U.S. 410 (1969), that the Affidavit must set forth

sufficient facts to establish how the informant arrived at

his conclusionary statements and whether the information

supporting those conclusionary statements was obtained

in a reliable manner.

8

It would appear that in order tor the affidavit to establish

probable cause of the issuance of the Warrant, three fac-

tors would have to be established.

(1) That the Petitioner was in possession of firearms at

270 Webster Lane;

(2) That the firearms she was possessing were stolen

and

(3) That the firearms had moved in Interstate com-

merce after they had been stolen.

What underlying circumstances are set forth in the Af-

fidavit to support these three elements?

The Petitoner would concede that the fact that the

informant was in the residence within the past five days and

observed the firearms would be sufficient to support the

first requirement, that is, that the Petitioner was in the

possession of firearms at 270 Webster Lane. But as was

pointed out above, since the Petitioner was not a con-

victed felon this sole fact would not be sufficient to es-

tablish the violation of federal law.

The next element necessary to be established by the

\ffidavit would be to establish that the firearms observed

by the informant in the Petitioner's home were, in fact,

stolen. What underlying circumstances are set forth that

in any way lends any support to the proposition that the

firearms possessed by the Petitioner were stolen? It is sub-

mitted that there are none. It has not been suggested

by the Respondent or by the Opinion of the Court of

Appeals that there was something unique about these

firearms that would give them away as having been stolen.

It has further not been suggested that the possession of

15 firearms in a residence is such a peculiar circumstance

that it is only consistent with the possession of stolen

property.

)

The third requirement that the firearms had moved in

Interstate commerce after they had been stolen, is perhaps

the most dificult of all to support. Even if an informant

could have concluded that the number of firearms would

indicate that they were stolen, certainly, the number would

not have indicated that they were stolen in a state other

than the Commonwealth of Kentucky. Nevertheless, the

informant made the statement that they were stolen in

residential burglaries in the State of Ohio.

Understandably, a search cannot be justified or held

invalid because of the results obtained in the search. How-

ever, it should be noted that in the instant case no prop-

erty, ‘stolen in residential burglaries in the State of Ohio”

was recovered. Moreover, as can be inferred from the

partial return on the search warrant filed by Agent Ganten-

bein and his apparent notes in the margin thereof, of

the eight firearms recovered from the Petitioner's home

only two appear to have been stolen and none appear to

have been stolen in the State of Ohio.

If the holding in the instant case is allowed to stand,

virtually any search warrant, issued on the basis of an

informant’s Affidavit, would be sufficient if the informant

states that he was personally present on the premises to

be searched within a reasonable period of time before ex-

ecution of the warrant. For, as can be seen from the Opin-

ion of the Circuit Court, this is the only underlying cir-

cumstance which the Court had to support the conclu-

sions of the informant.

A similar factual situation was presented to the Second

Circuit in United States v. Karathanos, 531 F. 2d 26 (2nd

Cir., 1976). wherein a search warrant was issued after an

informant provided information to an Immigration and

Naturalization Service Agent that illegal aliens were em-

ployed at the premises to be searched. The only under-

,

10

lying circumstance provided by the informant was the

same as in the present case, namely, that within the re-

cent past the informant had been on the premises. AKara-

thanos, supra at page 29. The problem confronting the

Second Circuit was the same problem that confronted the

District Judge in the instant case but was ignored by the

Circuit Court below, namely, how does an informant look

at someone or something, which is not in itself illegal

and conclude that a violation of federal law is occurring?

Moreover, how does an issuing Magistrate determine prob-

able cause in line with the Aguilar, supra, and Spinelh,

supra, decisions if the only underlying circumstance pro-

vided in the Affidavit is the personal observance of a per-

son or item that is not illegal per se

Lhe Second Circuit stated:

“With this basic framework in mind, we turn our

attention to whether the requirements of the first

phase of the Aguilar-Spinelli test haves been met. The

only information presented in the Jacobs Affidavit to

indicate how the informant Athanasiou reached his

conclusion that there were illegal aliens at the res-

taurant is the statement that he had lived on the

premises with these aliens. The government, recog-

nizing that the mere presence of aliens (assuming that

Athanasiou had a basis for concluding they were ali-

ens) would not provide a basis for concluding that

they had entered the United States illegally or other-

wise violated immigration laws, strenuously argues

that his statement gives rise to a reasonable inference

that the other aliens must have admitted to him their

illegal status, and thus provides sufficient assurance

that he reached his conclusion in a reliable way.

Unquestionably statements to the informant by the

other aliens that they were illegally in the United

States would have been sufficient to support a holding

that the information was reliably obtained by the in-

1]

formant. See, e.g., United States v. Sultan, 463 F. 2d

1066, 1968 (2d Cir., 1972). But the affidavit’s bald

statement that Athanasiou had lived with the other

aliens is an insufficient basis for inferring that they

made such incriminating admissions. While co-

workers and bunkmates may exchange considerable

amounts of information, it can hardly be assumed

that, living in fear of arrest and deportation, illegal

aliens would have revealed their illegal status to a

stranger such as Athanasiou. On the contrary, one

would expect this subject to rank high on the list of

topics too sensitive to be casually revealed. The un-

likelihood that the information was directly revealed

by any of the aliens to Athanasiou is heightened by

the fact that in depositions taken later in the present

proceeding the deposition of Athanasiou was taken

in the Greek language whereas the depositions of six

out of seven of the seized aliens were taken in the

Spanish language, indicating that any communication

between him and them would have been handicapped

by a language barrier.” Karathanos, supra at page 30.

Compare this to the language of the Sixth Circuit in

the instant case:

“Coming now to the Affidavit before us, and in-

terpreting it in the commonsense and realistic fashion

provided in Vantresca, we conclude that the per-

sonal observance of the informant of a large quantity

of stolen property taken in residential burglaries in

Ohio, and having personally seen the firearms in ques-

tion, satisfy the requirement of Aguilar that some ‘un-

derlying circumstances’ must be shown by the in-

former.

“We said in United States v. Sevier, 539 F. 2d 599,

603,

‘Great deference, even in a doubtful case, must

be given by courts to the determination of mag-

istrates.’

12

“In United States v. Swthart, supra, we said,

‘That determination should not be set aside unless

arbitrarily exercised.’

“The statement of our court in Jenkins, supra, at

823 is applicable here.

‘In the light of this discussion, we do not hesitate

to say that the affidavit here at issue is consider-

ably less than ideal. However, in determining

whether a search warrant should issue, the mag-

istrate deals only with probabilities rather than

certainties.’

“We hold that the affidavit was sufficient to give the

magistrate probable cause for issuing the search war-

rant.”’ (Appendix Page 3la).

Petitioner suggests that in order to issue the warrant in

the instant case the magistrate, and in approving it, the

Court of Appeals had to make critical assumptions, as-

sumptions not permitted by Aguilar-Spinelli at least not as

interpreted by the Second Circuit in Karathanos, supra,

and subsequent cases decided in that Circuit. Those as-

sumptions are, of course, that the informant knew the

property to be stolen in another state either because: (1)

the petitioner told the informant so or (2) the informant

had in some way participated in the theft or transportation

of the property.

Judge Meshill of the Second Circuit, writing the Opin-

ion of the Court in United States v. Galante, 547 F. 2d 733

(2nd Cir., 1976), explained the Karathanos decision as

follows:'

' The search in Galanto was not set aside because the Court found

the defendants did not have standing to object to the search. Conse-

quently, the Karathanos issue was not reached.

13

In Karathanos, we held that Aguilar and Spinelli re-

quire that an affidavit based upon an informant’s tip

must set forth the basis upon which the informant

believes the activity to be criminal. Galante, supra at

736 note |

As recently as 1978 the Second Circuit was again pre-

sented the issue raised in Karathanos, supra, and again

followed its dictates although it refused to set aside the

search. In United States vy. Kahan, 572 F. 2d 923 (2nd Cir.,

1978), an informant stated that he had observed stolen

razors and blades in a certain warehouse because he had

transported them there. ‘The informant also provided cer-

tain identifying numbers contained on the cartons which

when checked by the agents, corresponded to the num-

bers on cartons recently highjacked from an interstate

shipment. (It should be noted that these were model

numbers rather than serial numbers. Consequently, while

it could not be positively stated that these cartons were

the same ones stolen from the interstate shipment, the

probability increased). Additionally, the federal agents,

after a surveillance observed the cartons personally. In

Kahan, supra, the Court refused to set aside the search on

the basis of Karathanos, supra, as urged by the Appellants:

“The seemingly small but, as the majority found, crit-

ically important defect in the affidavit was that the

informer’s statement to the affiant omitted to say how

the informer learned (rather than surmised) that the

aliens with whom he had been living and working

had entered the country illegally: that is, the affidavit

would have been sufficient if the affiant had said that

the informer said at least eight other persons working

at the restaurant told him that they were illegal aliens

rather than saying that the informer had said that

‘eight other persons known to him to be illegal aliens

were employed at the restaurant.’ (531 F. 2d at 29).

14

The difference was precisely that between empty opin-

ion and competent evidence.” Kahan, supra at 926.

The issue is thus joined; is the requirement of Aguilar-

Spinelli that “some underlying circumstances” be shown

in the Affidavit satisfied by the showing of mere presence

of the informant as the Sixth Circuit determined in the

instant case or is the more stringent requirement of the

Second Circuit as set forth in Karathanos, supra, and the

cases that followed that the circumstances supporting the

conclusion of illegal activity be shown, to be the rule

regarding the use of information provided by informants?

The Petitioner submits that the rule announced by the

Second Circuit rather than the rule of the Sixth Circuit

in the instant case must be followed. ‘Io do otherwise

would open a Pandora’s box of possible abuse, for once

the informant states that he was on the premises to be

searched it matters not how he obtained his information

that illegal activity was occurring, and for all the Magis-

trate may know the informant is basing his conclusion on

nothing “. . . more substantial than a casual rumor cir-

culating in the underworld or an accusation based merely

on an individual's general reputation.” Spinelli, supra at

393 U.S. 416.

15

CONCLUSION

For the reasons set forth above, a Writ of Certiorari

should issue to review the Judgment and Opinion of the

Sixth Circuit.

Respectfully submitted,

WILLIAM C. OLDFIELD

P.O. Box 1078

211 East Fourth Street

Covington, Kentucky 41012

ATTORNFY FOR

PETITIONER

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-5229

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

WANDA JOYCE LEE,

Defendant-Appellee.

Before: WEICK and KEITH, Circuit Judges, and

CECIL, Senior Circuit Judge.

JUDGMENT

(Filed August 21, 1978)

APPEAL from the United States District Court for the

Fastern District of Kentucky.

THIS CAUSE came on to be heard on the record from

the United States District Court for the Eastern District

of Kentucky and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judgment of

the said District Court in this cause be and the same

is hereby reversed and the cause remanded with instruc-

tions to try the Defendant on the indictment.

No costs taxed.

ENTERED BY ORDER OF THE COURT.

John P. Hehman, Clerk

By /s/ GRACE KELLER

Chief Deputy Clerk

la

9

aa

UNITED STATES DISTRICT COURT

FOR THE

EASTERN JUDICIAL DISTRICT OF KENTUCKY

Docket No. 76-80M

Case No. ——-——-——

UNTITLED STATES OF AMERICA

VS.

Premises of 270 Webster Lane

Independence, Kentucky 41051

Kenton County

AFFIDAVIT FOR SEARCH WARRANT

BEFORE J. Gregory Wehrman, Covington, Kentucky

The undersigned being duly sworn deposes and says:

That he has reason to believe that (on the premises

known as) the Wanda Lee residence, consisting of a one

story, red brick dwelling house, white shingle roof and

white trim, and all outbuildings, appurtenances and motor

vehicles thereon, located starting at the intersection of

Kentucky Highway 17 and Independence Station Road

travel northwest on Independence Station Road for one

mile to the intersection of Independence Station Road and

Cody Road, turn left or west onto Cody Road, go .2 mile

to the intersection of Cody Road and Webster Lane, turn

right or north onto Webster Lane, go approximately 250

yards to 271) Webster Lane, this being the only dwelling

house on the right or east side of Webster Lane from Cody

3a

Road to the railroad tracks crossing Webster Lane in In-

dependence, Kenton County, in the Eastern District of

Kentucky, there is now being concealed certain property,

namely firearms; to wit, miscellaneous rifles, shotguns and

handguns, papers or records pertaining to the acquisition

and disposition of firearms which are being possessed in

violation of Title 18, Section 922 (j), U.S.C. and subject

to seizure under ‘Title 18, Section 924 (d) of the 1968 Gun

Control Act.

And that the facts tending to establish the foregoing

grounds for issuance of a Search Warrant are as follows:

On November 15, 1976, I received the following infor-

mation from a reliable confidential informant who has

demonstrated his reliability in the past by providing in-

formation which has resulted in several arrests, the seizure

of illegal firearms, narcotics and stolen property. The in-

formant stated that within the past five days, the inform-

ant observed a subject named Wanda Lee, who resides at

270) Webster Lane, Independence, Kentucky, in posses-

sion at her residence of a large quantity of stolen prop-

erty that was taken in residential burglaries in the State

of Ohio. The informant further related that amongst

this property there were several stolen firearms which had

been transported from the State of Ohio to the State of

Kentucky.

The firearms were described as a miscellaneous lot of

long guns and handguns totaling approximately fifteen

in number. Several of these firearms are shotguns of vary-

ing descriptions and calibers. ‘The informant also related

that it is common practice for Wanda Lee to transpori

stolen firearms in the trunk of various automobiles avail-

able to her and that she sells or disposes of them from

the trunk of the car.

4a

These firearms were personally seen by the informant

at the residence of Wanda Lee, 270 Webster Lane, Inde-

pendence, Kentucky.

On November 15, 1976 a surveylance of the premises

showed two vehicles parked on the premises. Vehicle #1

is described as a 1974 Oldsmobile bearing Kentucky L1-

cense #F]D 861, and Vehicle #2 a 1971 Chevrolet bearing

Kentucky License #F]D 862. A check of the Kenton Coun-

ty Registrar shows that both of the vehicles are registered

to Wanda Lee, Box 270 Webster Road, Independence,

Kentucky.

/s/ GERAND C. GAN'TENBEIN

Special Agent, ATF

Sworn to before me, and subscribed in my presence,

November 15th, 1976.

/s/ J. GREGORY WEHRMAN

Judge

————

Fa

UNITED STATES DISTRICT COURT

FOR THE

EASTERN JUDICIAL DISTRICT OF KENTUCKY

Docket No. 76-80M

Case No. ——————

UNULED STATES OF AMERICA

vs.

Residence of Wanda Lee

270 Webster Lane

Independence, Kentucky 41051

Kenton County

SEARCH WARRANT

To any Special Agent of the Bureau of Alcohol, Tobacco

and Firearms or any other authorized person

Afhdavit (s) having been made before me by Gerald C.

Gantenbein that he has reason to believe that on the prem-

ises known as the Wanda Lee residence, consisting of a

one story, red brick dwelling house, white shingle roof and

white trim, and all outbuildings, appurtenances and motor

vehicles thereon, located starting at the intersection of

Kerracky Highway 17 and Independence Station Koad

travei: northwest on Independence Station Road for one

mile to the intersection of Independence Station Road and

Cody Road, turn left or west onto Cody Road, go .2 mile

to the intersection of Cody Road and Webster Lane, turn

right or north onto Webster Lane, go approximately 250

6a

yards to 270 Webster Lane, this being the only dwelling

house on the right or east side of Webster Lane from Cody

Road to the railroad tracks crossing Webster Lane in In-

dependence, Kenton County, specifically vehicles bearing

ky. Lic. #FJD 861 and #FJD 862, in the Eastern District

of Kentucky, there is now being concealed certain property,

namely firearms; to wit, miscellaneous rifles, shotguns and

handguns, papers or records pertaining to the acquisition

and disposition of firearms and as I am satisfied that there

is probable cause to believe that the property so described

is being concealed on the person or premises above de-

scribed and that grounds for application for issuance of the

search warrant exist as stated in the supporting affidavit (s) .

You are hereby commanded to search within a period

of forty-eight hours (not to exceed 10 days) the person

or place named for the property specified, serving this

warrant and making the search in the daytime (6:00 a.m.

to 10:00 p.m.) and if the property be found there to seize

it, leaving a copy of this warrant and receipt for the prop-

erty taken, and prepare a written inventory of the property

seized and promptly return this warrant and bring the

property before ]. Gregory Wehrman as required by law.

Dated this 15th day of November, 1976.

/s/ J. GREGORY WEHRMAN

Judge

7a

RETURN

I received the attached search warrant 11-15, 1976, and

have executed it as follows:

On 11-15, 1976 at 3:00 o'clock PM, I searched the

person or premises described in the warrant and I left a

copy of the warrant with Wanda Lee together with a

receipt for the items seized.

The following is an inventory of property taken pursu-

ant to the warrant:

Marlin, bolt action rifle, Model 25, .22 cal. S/N 70203311

La Fever, 12 ga. double shotgun S/N 163852 [can’t trace|*

Gerstenberger, EMGE, 22 cal. revolver, S/N 107527 {can't

trace]

Galesi-Brecia, 6.35 mm S/auto pistol, Nickle, S/N 465820

[Present]

Colt, Frontier Scout .22 cal. single action revolver S/N

425761 [stolen]

Rohm, RG10 .22 cal. revolver S/N 694196 [Bertive Dayton

Ky.]

Colt Frontier Scout .22 cal. revolver, S/N 63338P [Ten-

nessee |

S&W .38 cal squeezer nickle plated S/N 187190 [Stolen]

S&W .32 cal. Model 30-1, snub nose, $/N 70151 [Hiance

car] £

* Bracketed material appeared in left hand margin on original copy.

Sa

This inventory was made in the presence of Special

Agents Miller and Sarwage.

I swear that this Inventory is a true and detailed account

of all the property taken by me on the warrant.

/s/ GERALD C. GAN TENBEIN

Subscribed and sworn to and returned before me this

day of » 9

Federal Magistrate

Ya ’

v]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

UNITED STATES OF AMERICA,

PLAINTIFF,

vs.

WANDA JOYCE LEE,

DEFENDANT.

ORDER

(Filed February 24, 1977)

Upon motion made by the defendant, and for the reasons

as stated in the Memorandum Opinion of even date, it is

hereby te

ORDERED that the motion to suppress be and is sus-

tained, and the silverware seized on November 15, 1976,

at the home of the defendant, be and is suppressed.

This 23 day of February, 1977.

/s/ EUGENE E. SILER, JR.,

JUDGE

l0a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CRIMINAL NO. 76-59

UNITED STATES OF AMERICA,

PLAINTIFF,

VS.

WANDA JOYCE LEE,

DEFENDANT.

MEMORANDUM OPINION

(Filed February 24, 1977)

Pursuant to Rule 41 (f), Federal Rules of Criminal Pro-

cedure, the defendant has filed a motion to suppress evi-

dence, to wit, items of silverware taken from the defen-

dant’s residence in Independence, Kentucky, on Novem-

ber 15, 1976, in a search conducted pursuant to a federal

search warrant. After a hearing, the Court makes the

following findings of fact and conclusions of law.

FINDINGS OF FACT

On November 15, 1976, Special Agent Gerald Ganten-

bein of the Bureau of Alcohol, Tobacco & Firearms, U.S.

Treasury Department. filed an affidavit for a search warrant

before U.S. Magistrate J]. Gregory Wehrman. In it, he

alleged that at the Wanda Lee residence described, there

were certain firearms, to wit, miscellaneous rifles, shotguns

and hand guns, papers or records pertaining to the ac-

lla

quisition and disposition of firearms being possessed in

violation of 18 U.S.C. § 922 (j).

The grounds alleged for the issuance of the warrant

were that on November 15, 1976,

I received the following information from a reliable

confidential informant who has demonstrated his reli-

ability in the past by providing information which

has resulted in several arrests, the seizure of illegal

firearms, narcotics and stolen property. ‘he inform-

ant stated that in the past five days, the informant ob-

served a subject named Wanda Lee who resides at

270 Webster Lane, Independence, Kentucky, in pos-

session at her residence of a large quantity of stolen

property that was taken in residential burglaries in the

State of Ohio. The informant further related that

amongst this property there were several stolen fire-

arms which had been transported from the State of

Ohio to the State of Kentucky. The firearms were

described as a miscellaneous lot of long guns and hand

guns totaling approximately fifteen in number. Sev-

eral of these firearms are shotguns of varying de-

scriptions and calibers. The informant also related

that it is common practice for Wanda Lee to trans-

port stolen firearms in the trunk of various automo-

biles available to her and that she sells or disposes

of them from the trunk of the car. These firearms

were personally seen by the informant at the resi-

dence of Wanda Lee, 270 Webster Lane, Indepen-

dence, Kentucky.

On November 15, 1976, a surveylance (sic) of the

premises showed two vehicles parked on the prem-

ises. Vehicle No. | is described as a 1974 Oldsmo-

bile bearing Kentucky license # FJD 861, and vehicle

No. 2, a 1971 Chevrolet bearing Kentucky license

# FJD 862. A check of the Kenton County Registrar

shows that both of the vehicles are registered to

Wanda Lee, Box 270 Webster Road, Independence,

Kentucky.

.

lea

\ search warrant was issued on the same day by ap

istrate Wehrman directing the execution by any —

Agent of the Bureau ol Alcohol, ‘Tobacco . sete A

any other authorized person.” It called tor the search

to be conducted for the firearms, papers, or records in

taining to the acquisition and disposition of seagate

described in the affidavit for the search warrant, but di

not call for a search for any other stolen property.

The search was commenced the same day at 3:00 P.M.

and lasted until almost midnight of the same evening.

Involved in the execution of the search warrant were 0

cial Agent Gantenbein and other special agents with ¢ :

Bureau of Alcohol, Tobacco & Firearms and one State

Police officer, Sgt. Heath. As a result of the search, a on

quantity of silverware, with total value estimated at $3 =

145.29, and nine firearms were seized and taken from the

premises. After the search was completed, Special Agent

Gantenbein filed his inventory pursuant to Rule 41 (d)

with the United States Magistrate, but that inventory only

included the firearms. Subsequently, after the defendant

had moved the Court to suppress, alleging, among other

things, that a complete inventory was not filed, another

inventory was filed on January 12, 1977, listing the silver-

ware taken. | :

Upon execution of the search warrant, almost immedi-

ately upon entering the premises, Special Agent Ganten-

bein saw in clear view in the laundry room the large

quantity of silverware. On some of the items were —

initials which did not correspond with those of Mw anda

Lee. Included in those initials were the following let-

ters: “H,” “LGG,.” “W.” “WBH,” “LM,” “M,” “MEM,

“A” “ABP” “).” “E.” “EW,” “low, “DHA,”

“LHW,” “HM,” “EAA,” “MAL,” “LVM,” “HD,' “B,

“SW.” “HKG,” “Y,” “AB,” and “HJ.” Some of these items

Ia

were sterling silver. There were in excess of 200 separate

items of silver taken, mostly flatware, but including candle-

holders, dishes, bowls, pitchers, large trays, a silver coffee

pot, silver goblets, a silver service and several carving

sets. These were all items not ordinarily seen in a person's

laundry room and were found in open view there.

After the agents had seen the silver, they found in the

fireplace scraps of paper indicating that the silver be-

longed to a lady in Virginia. While the agents were sull on

the premises, the Kentucky State Police made telephone

calls to Waynesboro, Virginia, and found that some two

days earlier, the residence of a lady had been burglarized

in that area and she had lost some silver in the burglary.

Thereafter, the items listed in the two inventories were

taken from the premises, with the firearms being taken by

the federal agents, and the silver and other items taken

by the Kentucky State Police. As a result, the indictment

in this case was returned, charging the defendant, Wanda

Joyce Lee, with a violation of 18 U.S.C. § 2315, knowingly

receiving stolen property of a value in excess of $5,000.00.

which had been transported in interstate commerce from

Virginia to Kentucky. As far as can be determined at this ‘

time, no indictments have been returned in this Court

pertaining to the firearms, nor have any state proceedings

been instituted concerning the receipt of stolen property.

CONCLUSIONS OF LAW

The defendant has raised several questions about the

sufficiency of the warrant and the search. They are as

follows:

1, ‘The warrant is defective because it was not directed

to a specific federal agent.

2. The inventory filed was defective.

lda

3. The silverware discovered were beyond the scope of

the search.

4. The failure of the affidavit to allege probable cause

for the search warrant.

5. The state officer was not authorized to participate —

in the search and, therefore, any items which were seized

by him must be suppressed.

Some of these issues can be disposed of easily, whereas

the others give the Court a great deal of trouble. They

will be discussed one at a time.

FAILURE TO NAME THE EXECUTING OFFICER

Under Rule 41 (c), FED.R.CRIM.P., a search warrant

“shall be directed to a civil officer of the United States

authorized to enforce or assist in enforcing any law thereof

or to a person so authorized by the President of the United

States."’ The defendant asserts that because no person

was specifically named to execute the warrant, it is void

and, therefore, the items seized as a consequence must

be suppressed. In support of her position, the defendant

cites United States v. Sorieno, 482 F.2d 469 (5th Cir.

1973). In that case, however, the search warrant failed

to name any person; instead, the name of the person to exe-

cute the search warrant was left completely blank and

neither name nor title appeared therein. However, the

Court held that since it was executed by a Special Agent

of the Bureau of Narcotics, who was ordered orally by the

Magistrate to execute the warrant, and since this special

agent identified himself at the premises searched, all rele-

vant interests were protected. In the case at hand, the search

warrant was directed to officers by title rather than name,

and those officers are in fact civil officers of the United

l5a

States authorized to enforce law. Cf. United States v. An-

drews, 347 F.2d 207 (6th Cir.) , cert. denied, 382 U.S. 956

(1965). Additionally, Public Laws 90-618 and 351 provide

for the administration and enforcement of these firearms

laws to be in the ‘Treasury Department, in which the

Bureau of Alcohol, Tobacco & Firearms is included. See

18 U.S.C.A. § 921, Historical Note. Moreover, in United

States v. Gannon, 201 F.Supp. 68 (D. Mass. 1961), a search

warrant was directed “to any U.S. Marshal, any of his

deputies, or any other authorized person,’ and was upheld

in spite of the fact that it was executed by a special agent

of the Internal Revenue Service. Judge Wyzanski held

that a private person has no standing to complain of the

failure of the correct officer to execute a search warrant:

it is a command to an officer, who has the responsibility to

see that the law is followed in the execution of a search

warrant. Therefore, this Court finds that the directive on

the search warrant met the requirement of Rule 41 (c).

IMPROPER RETURN ON INVENTORY

Pursuant to Rule 41 (d), the return of the search war-

rant “shall be made promptly and shall be accompanied

by a written inventory of any property taken.” The re-

turn for the silverware, as stated, was not effected until

almost two months later. However, the return of a search

warrant is ministerial and any failure therein does not

void the warrant, unless the defendant can show any preju-

dice because of this. sce United States v. Moore, 452 F.2d

569 (6th Cir. 1971), cert. denied, 407 U.S. 910 (1972).

Inasmuch as no prejudice has been shown here, as, unlike

Moore, the tardy inventory has been filed prior to trial,

the motion to suppress based upon a faulty inventory will

be overruled.

loa

SEARCH BEYOND THE SCOPE OF THE WARRANT

In the case of United States v. Gray, 484 F.2d 352 (6th

Cir. 1973), cere. denied, 414 U.S. 1158 (1974), while exe-

cuting a state search warrant for intoxicating liquor, police

officers came upon two rifles in a clothes closet. ‘hey were

taken downstairs to the business area of the building and

the serial numbers copied before the firearms were placed

back in the closet. Later, the serial numbers were run

through the National Crime Information Center computer

and listed as identifying stolen firearms. Based upon this

information, the officers procured a second warrant tor the

rifles and subsequently seized them. The Court held there

that the removal of the rifles trom the closet and the copy-

ing down of the serial numbers were an illegal seizure.

That case has since been distinguished because the rifles

there were not contraband and the officers had no reason

to believe that they were stolen, Thus, where officers were

executing search warrants for marijuana, United States v.

Chapman, —— F.2d —— (No. 76-1744, 6th Cir., Feb. 9,

1977), or gambling records, United States v. Truitt, 521

F.2d 1174 (6th Cir. 1975), and where sawed-off shotguns

were seized in plain view, the seizures were upheld be-

cause the sawed-oll shotgunds were contraband. Actually,

a sawed-off shotgun may not be contraband, unless it is in

Violation of 26 U.S.C. § 5861, such as not having been

registered in the National Firearms Registration and Trans-

fer Record or having its serial number removed. Ad-

mittedly, a sawed-off shotgun is more likely to be contra-

band than a rifle, but such weapon may be properly reg-

istered and possessed under Chapter 53, Title 26, United

States Code.

Thus, one must look at the totality of the circumstances

surrounding the seizure of an item not named in the search

warrant. For instance, an officer may seize that which is

ae

7a

in plain view when he inadvertently comes across such

an item incriminating the accused, but it must be “im-

mediately apparent to the police that they have evidence

before them.” Coolidge v. New Hampshire, 403 U.S. 443,

446 (1971), cited in United States v. Gray, supra at 355.

Although the silverware here cannot be classified as con-

traband per se, nevertheless, its presence in the laundry

room, the large quantity of it, and the unusual grouping

of patterns and initials would lead an officer to look close-

ly at them when they are in open view. Furthermore,

as the officers were authorized under the search warrant

to look for papers or records, they had an obvious right

to look in the fireplace when they found the other papers

pertaining to the silverware. ‘Then, based upon this in-

formation, and before moving the silver, they made a

telephone investigation to determine if the silver was stolen.

At that point, they had probable cause to seize the silver

and take it from the premises. Had it been a few pieces

of silver in the kitchen, dining room or some other ap-

propriate location, with no initials engraved thereon, or

if the initials had been the defendant’s, circumstances

would have been quite different. For the reasons as stated

herein, the seizure of the silverware under this warrant was

not unreasonable under the language in Gray. See also

United States v. Alloway, 397 F.2d 105 (6th Cir. 1968).

PROBABLE CAUSE TO ISSUE WARRANT

This question gives the Court a great deal of trouble.

To be certain, it was said in United States v. Ventresca,

380 U.S. 102, 108 (1965) :

[A}ffidavits for search warrant, such as the one in-

volved here, must be tested and interpreted by mag-

istrates in courts in a commonsense and _ realistic

fashion. They are normally drafted by nonlawyers

18a

in the midst and haste of a cirminal investigation.

Technical requirements of elaborate specificity once

exacted under common law pleadings have no proper

place in this area. A grudging or negative attitude by

reviewing courts toward warrants will tend to dis-

courage police officers from submitting their evidence

to a judicial officer before acting.

Moreover, if a magistrate is provided with sufficient

information to enable him to make a considered judicial

determination of probable cause, a reviewing court will

pay substantial difference to that determination. See Agut-

lar v. Texas, 378 U.S. 108, 111 (1964). But Aguilar and

its successor, Spinelli v. United States, 393 U.S. 410 (1969),

require a “two-pronged” test. First, the affidavit must

set forth some of the underlying circumstances forming the

basis for the informant’s conclusion that there is illegal

activity or evidence thereof on the premises, and, second, it

must state facts which give some assurance that the in-

formant is a credible person.

Although the defendant argues that the second prong

has not been met here, the Court is of the opinion that

the reliability and credibility of this informant is shown

by the fact that he has provided information in the past

which has resulted in arrests. See Draper v. United States,

358 U.S. 307 (1959). In addition, the informant had

seen the firearms and described them to some degree. Thus,

this detail lends credence to the credibility of the in-

formant. See Jones v. United States, 362 U.S. 257 (1960).

However, the underlying circumstances forming the basis

for the informant’s conclusion that there was stolen prop-

erty on the premises of Wanda Lee is suspect. This is

a different situation from those in which the informant

makes a conclusion that the subject of the search was in

possession of narcotics, Jones v. United States, supra; non-

19a

taxpaid distilled spirits, United States v. Harris, supra; or

the possession of firearms by a person known to be a con-

victed felon, United States v. Combs, 468 F.2d 1390 (6th

Cir. 1972), cert. denied, 411 U.S. 948 (1973). In each

of those instances, the possession alone of the items in-

volved is sufficient to form a basis for probable cause to be-

lieve the crime is being committed. Of course, there is

always the possibility that the narcotics were legally pur-

chased, or the whiskey had the tax paid thereon, or the

convicted felon had authority to possess the weapons, but

one must deal with probabilities.

On the other hand, it is another matter when one al-

leges that on certain premises are located stolen property.

Moreover, the affidavit here alleges that the property was

taken from “residential burglaries in Ohio” and it further

alleges that there were several stolen firearms which had

been transported from Ohio to Kentucky. There is nothing

here to indicate that the possession of the firearms by

Wanda Lee was illegal, inasmuch as there was no allega-

tion that she had ever been convicted of a felony. More-

over, the possession of stolen guns or stolen property would

only be a state offense, not a federal one, unless the prop-

erty had been transported in interstate commerce after the

theft.

In the hearing held in this case, the Court stated that

it found probable cause for the issuance of the warrant.

However, on further consideration of the language in the

affidavit, the Court finds that the language was too con-

clusory and does not provide the circumstances underlying

the information from the informant to believe it was cred-

ible. To be sure, as the United States has alleged, the

information is based upon personal observation of the in-

formant. See, e.g., United States v. Viggiano, 433 F.2d 716

(2d Cir. 1970). However, the informant could not tell

oa

by personal observation alone whether the firearms in

question were stolen or had been transported from Ohio

to Kentucky.

A case in point is United States v. Karathanos, 531 F.2d

26 (2d Cir.) , cert. denied, 96 8.Ct. 3321 (1976). There, in

an affidavit for a search warrant, the informant alleged

that there were illegal aliens in a particular restaurant

in New York. The Court held that this language precluded

the Court from determining whether the informant reached

his conclusion in a reliable manner. Thus, the Court

reasoned, to infer the informant reached his conclusion

through admissions by the aliens rather than through

rumor or assumptions based upon observations ‘would be

to permit a warrant to issue on the basis of the degree of

speculation proscribed by the Aguilar-Spinelli test.” Id. at

31. Similarly, in the case at hand, one can only speculate

as to how the informant came to his conclusions that the

firearms had been stolen and had been transported from

Ohio to Kentucky. The further conclusionary language

that there was on the premises stolen property which had

been taken from burglaries in Ohio may be read in con-

junction with the language about the firearms, to imply

that the firearms were stolen in the burglaries. However,

the only way that the informant could have so concluded

to provide probable cause would be through personal par-

ticipation in the burglaries or an admission by Wanda

Lee as to where they came from. Neither of these was

stated in the affidavit. Therefore, it is just as likely that

the informant received his information from a rumor at

a local bar.

Clearly, the information proved to be trustworthy after

the execution was effected, as items of silver taken in

burglaries from Virginia was found. On the other hand,

there is no indication that any of the items found in the

~ "Sie

house had been taken trom burglaries in Ohio or that ihe

firearms had originated in any state other than Kentucky.

However, probable cause is not determined by results,

but is based upon what facts and circumstances are avail-

able at the particular time of the issuance of the warrant.

See, e.g., Byars v. United States, 273 U.S. 28 (1927) ;

United States v. Nicholson, 303 F.2d 330 (6th Cir.) , cert.

denied, 371 U.S. 823 (1962). Because probable cause was

not shown in the affidavit, the motion to suppress will be

sustained,

EXECUTION BY A STATE OFFICER

Assuming arguendo that probable cause was established,

the Court also finds fault with the participation by the

state officer in the execution of a federal search warrant.

Clearly, the search warrant called for the execution by a

federal officer. Moreover, Special Agent Gantenbein as:

serted that he, not a state officer, originally saw the silver.

However, the state officers conducted all of the investiga-

tion concerning the silver and carried the silver from the

premises. One of the arguments by the United States

in the late filing of the inventory on the silver was that the

federal agents did not take these from the premises, and,

therefore, the federal government provided a proper return

on the inventory of all the items taken, that is, the

firearms.

Participation by a state officer is precluded, United States

v. Sanchez, 509 F.2d 886 (6th Cir. 1975). Of course, in

that case, it was an execution of a state search warrant,

and the federal officers went along because the state of-

ficers had been told that there might be some illegal ex-

plosives on the premises. The result was that the federal

officer found some illegal explosives, which were later the

subject of a federal prosecution. In the case at hand, it

22a

invelved a federal search warrant with participation by a

state officer, resulting in a federal prosecution, but not

under the cognizance of the agency which executed the

warrant, that is, the Bureau of Alcohol, Tobacco & Fire-

arms. Instead, it is a Federal Bureau of Investigation case.

Chat is not enough of a distinction in the mind of the

Court to allow this evidence to be introduced, inasmuch

as the State Police had total charge of the silver at the

time of the search and thereafter. If it were not for the

Sanchez case, this Court would be inclined to rule that

the search was legal even though a state officer participated,

but the Court feels bound by that decision under the

facts and circumstances as outlined herein. See also United

States v. Gardner, 537 F.2d 861 (6th Cir. 1976).

This 23 day of February, 1977.

/s/ EUGENE E. SILER, JR.,

JUDGE

23a

No. 77-5229

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

T | APPEAL f

Plaintiff-A ppellant, rom the

United States Dis-

Vv. trict Court for the

Eastern District of

WANDA Joyce LEE, :

Kentucky,

Defendant-A ppellee.

Before: Weick and Keirn, Circuit Judges, and Ceci,

Senior Circuit Judge.

CeciL, Senior Circuit Judge, delivered the opinion of the

Court, in which Weick, Circuit Judge, joined. Kerrn,

Circuit Judge, (pp. 13-16) delivered a separate con-

curring opinion.

Cecii, Senior Circuit Judge. An indictment was filed

in the United States District Court for the Eastern District

of Kentucky, on December 2, 1976, charging the appellee,

Wanda Joyce Lee, with knowingly receiving and conceal-

ing stolen goods, a quantity of silverware items of the

approximate value of $27,000, which were moving as inter-

state commerce from the cities of Waynesboro and Har-

risonburg, in the State of Virginia, to Kenton County,

in the Eastern District of Kentucky, knowing said silver-

ware items to have been stolen, unlawfully converted and

taken. (Sec. 2315, Title 18, U.S.C.)

On December 20, 1976, a motion was hled on behalt of

the appellee to suppress tor use at the trial the items of

silverware alleged in the indictment to have been taken

trom the residence of the appellee at 270 Webster Lane,

pursuant to a search warrant issued by United States

Magistrate ]. Gregory Wehrman, on November 15, 1976.

It is claimed that the warrant is defective in several

respects.

Special Agent Gerald C. Gantenbein, of the Bureau of

Alcohol, Tobacco and Firearms made an aflidavit, on No-

vember 15, 1976, before J. Gregory Wehrman, United

States Magistrate, for the purpose of obtaining a search

warrant to search the premises of the appellee. He stated,

“That he has reason to believe that” in the premises de-

scribed as the residence of Wanda Lee, * * *

“there is now being concealed certain property, name-

ly firearms; to wit miscellaneous rifles, shotguns and

handguns, papers or records pertaining to the acquisi-

tion and disposition of firearms which are being

possessed in violation of Title 18, Section 922 (j),

U.S.C. and subject to seizure under Title 18, Section

924 (d) of the 1968 Gun Control Act.

“And that the facts tending to establish the forego-

ing grounds for issuance of a Search Warrant are as

follows: On November 15, 1976, I received the fol-

lowing information from a reliable confidential inform-

ant who has demonstrated his reliability in the past

by providing information which has resulted in several

arrests, the seizure of illegal firearms, narcotics and

stolen property. The informant stated that within the

past five days, the informant observed a subject named

Wanda Lee, who resides at 270 Webster Lane, Inde-

pendence, Kentucky, in possession at her residence

of a large quantity of stolen property that was taken

ora

in residential burglaries in the State of Ohio. ‘The

informant further related that amongst this property

there were several stolen firearms which had been

transported from the State of Ohio to the State of

Kentucky.

‘The firearms were described as a miscellaneous lot of

long guns and handguns totaling approximately fifteen

in number. Several of these firearms are shotguns of

varying descriptions and calibers. ‘The informant also

related that it is common practice for Wanda Lee to

transport stolen firearms in the trunk of various auto-

mobiles available to her and that she sells or disposes

of them from the trunk of the car.

‘These firearms were personally seen by the informant

at the residence of Wanda Lee, 270 Webster Lane,

Independence, Kentucky.

“On November 15, 1976 a surveylance (sic) of the

premises showed two vehicles parked on the premises.

Vehicle #1 is described as a 1974 Oldsmobile -bearing

Kentucky License #F]D 861, and Vehicle #2 a 197]

Chevrolet bearing Kentucky License #4FJD 862. A

check of the Kentucky County Registrar shows that

both of the vehicles are registered to Wanda Lee, Box

270 Webster Road, Independence, Kentucky.”

Upon this affidavit, Wehrman, the United States Magis-

trate, issued a search warrant directed

“To any Special Agent of the Bureau of Alcohol,

Tobacco and Firearms or any other authorized person

* *

The property described as concealed for which the warrant

was issued is,

“miscellaneous rifles, shotguns and handguns, papers

or records pertaining to the acquisition and disposi-

tion of firearms”

26a

It was further stated in the warrant,

“and as I am satisfied that there is probable cause to

believe that the property so described is being con-

cealed on the person or premises above described and

that grounds for application for issuance of the search

warrant exist as stated in the supporting affidavit (s) .”

It was commanded that the search for the property speci-

fied be made within forty eight hours and, if found to be

seized, a return made of the property so seized and the

property brought before the Magistrate.

Che District Judge made Findings of Fact relative to

the execution of the Search Warrant. We accept them as

not being clearly erroneous. His Findings are as follows:

“The search was commenced the same day at 3:00

P.M. and lasted until almost midnight of the same eve-

ning. Involved in the execution of the search war-

rant were Special Agent Gantenbein and other special

agents with the Bureau of Alcohol, Tobacco & Fire-

arms and one State Police officer, Sgt. Heath (sic —

Keith). Asa result of the search, a large quantity of

silverware, with a total value estimated at $39,145.29,

and nine firearms were seized and taken from the

premises. After the search was completed, Special

Agent Gantenbein filed his inventory pursuant to

Rule 41 (d) with the United States Magistrate, but

that inventory only included the firearms. Subse-

quently, after the defendant had moved the Court to

suppress, alleging, among other things, that a com-

plete inventory was not filed, another inventory was

filed on January 12, 1977, listing the silverware taken.

“Upon execution of the search warrant, almost im-

mediately upon entering the premises, Special Agent

Gantenbein saw in clear view in the laundry room the

large quantity of silverware. On some of the items

were found initials which did not correspond with

those of Wanda Lee. Included in those initials were

27a

the following letters: ‘H,’ ‘LGG,' ‘W,’ ‘WBH,’ ‘LM,’

'M,’ ‘MEM,’ ‘A,’ ‘ABP,’ ‘D,’ ‘E,’ ‘KW,’ ‘CSW,’ ‘DHA,’

‘LHW,’ ‘HM,’ ‘EAA,’ ‘MAL,’ ‘LVM,’ ‘HD,’ ‘B,’ ‘SW,’

‘HKG,’ ‘Y,’ ‘AB,’ and ‘HJ.’ Some of these items were

sterling silver. There were in excess of 200 separate

items of silver taken, mostly flatware, but including

candleholders, dishes, bowls, pitchers, large trays, a

silver coffee pot, silver goblets, a silver service and

several carving sets. These were all items not ordi-

narily seen in a person's laundry room and were found

in open view there.

“After the agents had seen the silver, they found in

the fireplace scraps of paper indicating that the silver

belonged to a lady in Virginia. While the agents

were still on the premises, the Kentucky State Police

made telephone calls to Waynesboro, Virginia, and

found that some two days earlier, the residence of a

lady had been burglarized in that area and she had

lost some silver in the burglary. Thereafter, the items

listed in the two inventories were taken from the

premises, with the firearms being taken by the federal

agents, and the silver and other items taken by the

Kentucky State Police. As a result, the indictment

in this case was returned, charging the defendant,

Wanda Joyce Lee, with a violation of 18 U.S.C. § 2315,

knowingly receiving stolen property of a value in

excess of $5,000.00, which had been transported in

interstate commerce from Virginia to Kentucky. As

far as can be determined at this time, no indictments

have been returned in this Court pertaining to the

firearms, nor have any state proceedings been insti-

tuted concerning the receipt of stolen property.”

The District Judge considered the sufficiency of the war-

rant and search as raising the following questions:

“1. The warrant is defective because it was not

directed to a specific federal agent.

“2. The inventory filed was defective.

25a

“3. The silverware discovered were beyond the scope

of the search.

“4. The failure of the affidavit to allege probable

cause for the search warrant.

“5. The state officer was not authorized to partici-

pate in the search and, therefore, any items which

were seized by him must be suppressed.”

The Judge resolved the first three of these questions in

favor of the government. We agree.

In considering the question of probable cause, the court

held that this required a “two pronged”’ test,

“First, the affidavit must set forth some of the under-

lying circumstances forming the basis for the inform-

ant’s conclusion that there is illegal activity or evi-

dence thereof on the premises, and, second, it must

state facts which give some assurance that the in-

formant is a credible person.”

The court held that the second prong of the test is met

but that the affidavit failed in the first prong of the test to

show that the Magistrate had probable cause to issue the

search warrant.

We consider now the legal sufficiency of the affidavit to

show probable cause,

It was in Aguilar v. Texas, 378 U.S. 108, that the Court

announced the “two pronged” test. With reference to the

information of the informant the Court said, at page 114,

“* * * the magistrate must be informed of some of the

underlying circumstances from which the informant

concluded that the narcotics were where he claimed

they were, * * *”

Oy

@wJé

The affidavit! which prompted the announcement of this

principle was clearly lacking in material information upon

which to issue a search warrant. I[t will be noted that the

affidavit states no facts from the informer. It is the affiant

who, as a result of information, not specified, from an in-

former, believes drugs are hidden on the premises

described. This is wholly different from the affidavit in

the case before us,

. Believing that the principles of Aguilar, supra, should be

further explicated, the Court granted certiorari in Spinelli

v. United States, 390 U.S, 942.2, Although the affidavit in

this case contained much more information than the one

in Aguilar, the Court held it to be insufficient in accord-

ance with the principle announced in Aguilar. Although

the Court held the affidavit to be factually insufficient, the

decision finally turned on the allegation relative to the

informer. This allegation was that the F.B.I. had been

informed,

“* * * by a confidential reliable informant that Wil-

liam Spinelli is operating a handbook and accepting

wagers and disseminating wagering information by

means of the telephones * * *” 7

Here, as in Aguilar, the affidavit gives no source of the

information of the informer.

Affidavits are to be accorded a common sense interpreta-

tion. It was said in United States v. Ventresca, 380 US.

102 at 108, these decisions (Aguilar and others) ,

“Affiants have received reliable information from a credible

person and do believe that heroin, marijuana, barbiturates and

other narcotics and narcotic paraphernalia are being kept at

the above described premises for the purpose of sale and use con-

trary to the provisions of the law.”

2 Spinelli v. United States, 393 U.S. 410.

30a

“* * * reflect the recognition that the Fourth Amend-

ment’s commands, like all constitutional requirements,

are practical and not abstract. If the teachings of the

Court's cases are to be followed and the constitutional

policy served, affidavits for search warrants, such as the

one involved here, must be tested and interpreted by

magistrates and courts in a commonsense and realistic

fashion. They are normally drafted by nonlawyers in

the midst and haste of a criminal investigation, Tech-

nical requirements of elaborate specificity once exacted

under commen law pleadings have no proper place in

this area. A grudging or negative attitude bv review-

ing courts toward warrants will tend to discourage

police officers from submitting their evidence to a

judicial officer before acting.’

See United States v. Jenkins, 525 F.2d 819, 822 (6th Cir,

1975) ; United States v. Giacalone, 541 F.2d 508, 514 (6th

Cir. 1976); United States v. Swihart, 554 F.2d 264, 267-

268 (6th Cir. 1977).

In a recent opinion of this court, United States v. Dudek,

560 F.2d 1288, the court sustained the validity of a search

warrant. There were two affidavits in this case and the

court held that they met the requirements of the two

pronged test of Aguilar, supra, In arriving at this con:

clusion, the court drew heavily on the reasoning of Van-

fresca, supra.

Coming now to the affidavit before us, and interpreting

it in the commonsense and realistic fashion provided in

Vantresca, we conclude that the personal observance of

the informant of a large quantity of stolen property taken

in residential burglaries in Ohio, and having personally

seen the firearms in question, satisfy the requirement of

Aguilar that some “underlying circumstances” must be

shown by the informer.

3 United States v. Wasserstrom, 571 F.2d 351 (6th Cir. 1978).

3la

We said in United States v. Sevier, 539 F.2d 599, 603,

“Great deference, even in a doubtful case, must be

given by courts to the determination of magistrates.”

In United States v. Swihart, supra, we said,

‘That determination should not be set aside unless

arbitrarily exercised.”

The statement of our court in Jenkins, supra, at 823 is

applicable here.

“In the light of this discussion, we do not hesitate

to say that the affidavit here at issue is considerably

less than ideal. However, in determining whether a

search warrant should issue, the magistrate deals only

with probabilities rather than certainties.”

We hold that the affidavit was sufficient to give the mag-

istrate probable cause for issuing the search warrant.

The trial judge held that, even assuming, arguendo,

the affidavit submitted in support of the search warrant

established probable cause for its issue, the silver, the sub-

ject of the motion to suppress, found during the execu-

tion of the search, should be suppressed because of the

participation in the search of Sergeant Keith, a Kentucky

State Police officer.

Special Agent Gantenbein of the Federal Bureau of

Alcohol, ‘Tobacco and Firearms, in charge of the execu-

tion of the search warrant, requested the state officer to

accompany him and participate in the execution of the

warrant, He stated that it was his practice always in such

cases to invite a state officer to participate in the search,

The District Judge cited United States v. Sanchez, 509 F.2d

886 (6th Cir. 1975), in support of his decision.

The search began at 3:00 P.M. of the day the warrant

was issued and continued until nearly midnight. Partici-

ao

Daal

pating in the search with Special Agent Gantenbein were

other special agents of the Bureau of Alcohol, ‘Tobacco

and Firearms and Sergeant Keith of the Kentucky police.

Immediately upon entering the premises to be searched,

Agent Gantenbein saw, in clear view in the laundry room,

a large quantity of silverware which is the subject of the

motion to suppress in this case. ‘There were in excess of

20 items of silver here, consisting mostly of flatware, but

including candleholders, dishes, bowls, pitchers, large trays,

a silver cotfee pot, silver goblets, a silver service, and sev-

eral carving sets. Some of the items were sterling silver

and on some of them were various initials, none of which

corresponded with the name of Wanda Lee.

After the agents had scen the silver, they found in the

fireplace scraps of paper indicating that the silver belonged

to a lady in Virginia. At this point the state officer took

over the investigation and, by telephone calls to Waynes-

boro, Virginia, found that, a few days before, the residence

of a lady had been burglarized in that area and that some

silver had been stolen. Thereafter the firearms were taken

by the federal agents and the silver by the state police. Up-

on completing the search, an inventory was made and re-

turned of the firearms but none was made of the silver

until Agent Gantenbein made and returned one just prior

to the hearing on the motion to suppress.

The District Judge found that, discovering the silver in

the process of the search, under such circumstances as

made it appear obvious that it was stolen, the officers had

probable cause to seize it. We agree. However, in the

judgment of the District Judge, it was the participation

in the search by Sergeant Keith, as a state officer, and his

subsequent investigation, seizure and possession of the sil-

ver that justified the suppression of the silver as evidence.

We do not read Sanchez, supra, to require this conclusion.

Section 3105, ‘Title 18, U.S.C. provides,

“A search warrant may in all cases be served by any

of the officers mentioned in its direction or by an

officer authorized by law to serve such warrant, but

by no other person, except im aid of the officer on

his requiring tt, he being present and acting in its

execution.’ (Emphasis added)

Richard Sanchez was indicted by a federal grand jury

on two counts involving the receiving, concealing and

storage of explosives contrary to federal regulations. ‘The

charges grew out of a search made under the foiiowing

circumstances.

On the evening of October 30, 1973, Officer David Mul-

lin of the Toledo Drug Enforcement Unit received in-

formation from a confidential informant that he had seen

heroin in the home of the defendant. Pursuant to this

information he obtained a search warrant for narcotics

for the home of Sanchez. Shortly after he had obtained

the warrant he received another call from the same. in-

formant advising that there were explosives in the same

residence. Officer Mullin then contacted an agent of the

Alcohol, Yobacco and Firearms Bureau and advised him

of the explosives and requested him to accompany him on

the search.

Although two hours elapsed before the search was made,

the federal agent did not obtain a search warrant to search

for the explosives. In the process of executing the state

search warrant, the explosives, which were the subject of

the indictment, were found and seized by the federal agent.

No narcotics were found by the state officer.

Here there were two simultaneous but distinct searches

being conducted, one by a state officer for narcotics and

$4da

the other for explosives by a federal officer. Only the state

officer had a warrant, although the federal officer had

probable cause to believe thet there were explosives on

the premises being searched and had had an opportunity to

procure a search warrant. Lhis, then, is the crux ol this

case. and the warrantless search a violation of the deten-

dant’s Constitutional rights guaranteed by the Fourth

Amendment.

We do not interpret Sanchez to hold that the presence

of the tederal agent on the premises was per se unau-

thorized. The Court said at page 889,

“We believe that the warrant authorized only the

local officers to enter and search the Sanchez prop-

erty for narcotics. 1/ could not be used to validate the

entrance of a federal officer having both probable

cause and the opportunity to obtain a separate warrant

to search for different items of property.” (Emphasis

added) .

[he warrant in the case at bar authorized “any Special

Agent of the Bureau of Alcohol, Tobacco and Firearms

or any other authorized person” to execute it. We believe

that Agent Gantenbein had the authority to delegate Ser-

geant Keith to accompany him in the execution of the

warrant. If he had that authority, he had the right to

expect that he would assist in the search. As the District

Judge said, if the silver had been taken by the federal

agent, it would have been legal. We hold that it did not

become illegal by reason of the participation of Sergeant

Keith,

In the case before us, contrary to the Sanchez case,

neither Agent Gantenbein nor Sergeant Keith had prob-

able cause to believe that they would find stolen silver

on the premises to be searched. We find no authority for

ot ee eee

35a

the finding that Sergeant Keith was on the premises of

the defendant without authority.

Reversed and remanded with instructions to try the de-

fendant on the indictment.

Keirn, Circuit Judge, concurring. I concur in the Judg-

ment of the court and in the majority opinion. I would

have preferred, however, a search warrant affidavit that

fully set out the underlying circumstances which supported

the informant’s belief that the guns he saw at Lee’s house

were stolen, or which indicated that independent steps

were taken by the agents to corroborate the informant’s

information.

In United States v. Wasserstrom, 571 ¥.2d 351 (6th Cir.

1978) (per curiam), cited in the majority opinion, the

search warrant affidavit contained the following informa-

tion:

That on or about September 28, 1976, a confidential

informant, a citizen with no known crjminal felony

record, who has been a “simple witness’ and not a

“professional informant,” obtained Stock Certificate

No. AKC 209219, copy attached, 100 shares of Ohio

Edison Company, issued to Stella W. Haver, from

a drawer located under the front bedroom window

on the third floor of the premises at 1985 Sunbury

Road.

Said informant has told affiant that said certificate was

one of approximately 1,000 certificates and 200 en-

velopes containing what appeared to be bond cou-

pons which he observed in the drawer.

Verification with Vercoe and Company, Mansfield,

Ohio, the mailer of the stock certificate, discloses that

said certificate was contained in Register No. 2794 of

the United States Mails. This stock certificate is de-

scribed by Vercoe and Company in the attached list of

36a

stock certificates which were contained in Register

No. 2794. This register is listed in records of the

U. S. Postal Service as being on an U. S. Postal truck

which was robbed on September 24, 1976, in Franklin

County, Ohio, the mail pouch containing said register

being illegally taken from said truck at that time.

Further, U. S. Postal Service information reflects the

fact that approximately 200 envelopes containing bond

coupons valued at approximately $136,000.00 were

included in the stolen registered mail shipment.

Appendix in No. 77-5261 at V. This affidavit clearly shows

how the agents verified the information given to them

by the informant. It is far more detailed and factual than

the affidavit here under consideration. The verification was

made necessary, of course, by the fact that the agents

could not rely on the “previous reliability” of this in-

formant. But although the affiant in the instant case

states that the informant had proven to be previously

reliable, Aguilar v. Texas, 378 U.S. 108, 114 (1964), that

staternent supports the informant’s assertion that he saw

the guns, and not that the guns he saw were stolen. See

United States v. Harris, 403 U.S. 573, 586-601 (1971)

(dissenting opinion) (Harlan, J.).

In Draper v. United States, 359 U.S. 307 (1959), in-

volving a warrantless arrest made after the police officers

had verified an informant’s tip, and United States v. Harris,

supra, involving the sufficiency of a search warrant affida-

vit, the police officers themselves either verified the in-

formant’s information, or the affidavit indicated how the

informant knew that the suspect was engaging in illegal

activity. The affidavit relied upon to obtain a search

warrant in United States v. Ventresca, 380 U.S. 102, 103-4

(1965) , was based upon the personal observations of the

afhant Alcohol, Tobacco and Firearms (ATF) agent and

a

37a

other ATF agents. Thus, the statement in Ventresca that

search warrant affidavits should not be read in an overly

technical manner does not, I would suggest, apply to a

situation where the affidavit is unclear as to how the in-

formant obtained his information, and the affiant has not

conducted any independent verification of the informant’s

information. (In this case the agents did check the cars

in front of Lee’s house and established that she owned

these vehicles, but that was irrelevant to the probable

cause issue of whether the guns were stolen or not. The

fact that she owned the cars is consistent with innocent

activity.)

Cases from this circuit which have upheld the suf-

ficiency of arrest warrant and search warrant affidavits have

also involved situations where an element of probable cause

was based upon information within the personal knowledge

of the affiant, or where an informant’s tip had been cor-

roborated by police investigation. Thus, in United States

v. Jenkins, 525 F.2d 819 (6th Cir. 1975), the affiant stated

that he knew of his own knowledge that Jenkins was a

convicted felon. Once that fact was established, probable

cause to arrest Jenkins existed when the informants stated

that they saw (personal observation) Jenkins carrying a

gun. And in United States v. Dudek, 560 F.2d 1288, 1292-

93 (6th 1977), the court noted that ‘not only were there

two different and detailed listings of goods alleged to be

located at the two different locations and a statement that

all goods had been ‘stolen in burglaries,’ but in addition,

there was the confirmation by law enforcement officers

themselves of one item of stolen goods, namely, the stolen

boat.” (Emphasis added.)

In the instant case, the search warrant affidavit alleges

a violation of 18 U.S.C. § 922. In another case where a

similar violation was alleged, the search warrant affidavit

38a

was supported by substantially more information and cor-

roboration than is here presented:

Rivard's [the informant] charges that Scherer [the

suspect] was selling firearms from his house was bol-

stered by the four purchases made at this location,

three of which were made under Government sur-

veilance. Prior to each purchase Rivard had been

able to provide Government agents with the name,

price, and model number of each weapon eventually

sold. Finally, Rivard’s assertion that numerous wea-

pons were lying about Scherer’s house, and that Scher-

er was keeping two Thompson machine guns without

serial numbers in a box in his barn was corroborated

by two special agents who visited the defendant's farm

prior to the search.

United States v. Scherer, 523 F.2d 371, 376-77 (7th Cir.

1975), cert. denied 424 U.S. 911 (1976).

Here the informant personally observed the quantity and

variety of guns in Lee’s house. This information is pre-

sented in the affidavit. The additional detail provided

in the affidavit is the informant’s assertion that the prop-

erty he saw was stolen in Ohio, and that it was “common

practice” for Lee to transport and sell stolen firearms

from her car. While Lee’s reputation might not be ir-

relevant in determining probable cause, United States v.

Harris, 403 U.S. at 582, it is certainly not a sufficient basis

upon which to issue a search warrant. In United States

v. Harris, supra, it was the affiant investigator’s personal

knowledge of the suspect’s reputation which the Court

held was a “practical consideration of everyday life’’ upon

which an officer or Magistrate could properly rely when

assessing the reliability of an informant’s tip. 403 U.S. at

583. In the instant case the affiant agent appears to have

had no personal knowledge of Lee’s reputation. He does

not confirm the unidentified informant’s report that it was

39a

“common practice’ for Lee to transport and sell stolen

firearms; nor does the affidavit provide the Magistrate with

the underlying circumstances from which the informant

concluded that this criminal activity was a common prac-

tice with Lee. As to the other “detail,” the affidavit does

not indicate why the informant thought that the guns

he saw were stolen in burglaries in Ohio, or that the ATF

agents had taken steps to corroborate this information, and

had in fact corroborated it, prior to seeking a search

warrant.

BEFORE: WEICK and KEITH, Circuit Judges, and

CECIL, Senior Circuit Judge.

The petition for rehearing with suggestion of rehearing

en banc filed by the defendant-appellant having come on

for consideration, and none of the Judges of this Court

having favored ordering consideration en banc, the peti-

40a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

VS.

WANDA JOYCE LEE,

Detendant-Appellant.

ORDER

tion for rehearing was submitted to the hearing panel.

Upon consideration of the petition for rehearing, the

Court concludes that the issues raised therein were fully

considered upon submission and decision of the case.

Petition denied.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HEHMAN

Clerk