18 F.3d 240 (4th Cir. 1994), 93-5262, United States v. Legg

Docket Nº:93-5262.
Citation:18 F.3d 240
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey S. LEGG, Defendant-Appellant.
Case Date:March 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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18 F.3d 240 (4th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Jeffrey S. LEGG, Defendant-Appellant.

No. 93-5262.

United States Court of Appeals, Fourth Circuit

March 1, 1994

Argued Oct. 28, 1993.

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ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston, West Virginia, for Appellant. Kelly D. Ambrose, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: George H. Lancaster, Jr., Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Michael W. Carey, United States Attorney, Charleston, West Virginia, for Appellee.

Before WILKINS and LUTTIG, Circuit Judges, and SPROUSE, Senior Circuit Judge.


WILKINS, Circuit Judge:

Jeffrey S. Legg was indicted for possession of a firearm with an obliterated serial number. See 18 U.S.C.A. Secs. 922(k), 924(a)(1)(B) (West Supp.1993). The district court denied Legg's motion to suppress the firearm, concluding that there was a substantial basis to support the magistrate's determination that probable cause existed for the issuance of a warrant to search his apartment, or, in the alternative, that the good faith exception to the exclusionary rule applied. Legg then entered a conditional guilty plea. See Fed.R.Crim.P. 11(a)(2). He now appeals the adverse determination of his motion to suppress, principally arguing that the seizure of the firearm violated his Fourth Amendment rights because the firearm was not included in the warrant as an item for which the search was authorized. Because we conclude that the firearm was validly seized, we affirm.


When newspaper companies in Charleston, West Virginia began experiencing the theft of money from coin-operated newsstands, five off-duty Kanawha County Sheriff's Deputies were hired to aid in surveillance of the newsstands. The companies informed the deputies that Gerald Tucker, who had previously been apprehended breaking into newsstands, had told them that Legg and James Martin were involved in the thefts. Armed with this information, the deputies began following Legg and Martin. Soon after the surveillance commenced, they observed Legg and Martin leave a restaurant, remove a pair of bolt cutters from the trunk of a car, and break into a newsstand. Legg and Martin were arrested after a brief chase.

Shortly after their arrest, Martin confessed to several thefts from newsstands and told deputies that he and Legg often disposed of the padlocks from the stands by either throwing them on the roof of a nearby building or taking the padlocks with them. An immediate search of the roof of the restaurant near where Legg and Martin had been

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observed breaking into the newsstand led to the recovery of a padlock. While the roof of the restaurant was being searched, Martin continued talking to Deputies Young and Putillion, informing them that he and Legg had previously taken coins, change trays, and another set of bolt cutters to Legg's apartment.

In possession of this information, Deputies Young and Putillion proceeded to the office of a state magistrate to obtain a search warrant for Legg's apartment. The deputies first told the magistrate about the recent spree of coin larcenies and related the information supplied by Tucker concerning the individuals involved in the thefts. They also informed the magistrate about their own observations of Legg and Martin, about Martin's statement that led to the recovery of the padlock, and about Martin's statement concerning the storing of the coins and contraband at Legg's apartment. After Deputy Young filled out an affidavit and complaint for a search warrant and was placed under oath, he swore to the truthfulness of the affidavit and complaint and the oral statements he had previously given. Based on this information, the magistrate made a finding of probable cause and issued a search warrant for Legg's residence. The warrant authorized the officers to search Legg's apartment for "large amounts of change, change trays, padlocks or parts thereof, [and] change wrappers."

After the issuance of the warrant, Deputies Young, Putillion, Sullivan, and Crosier, along with Charleston Police Officer James Coyner, proceeded to Legg's apartment to execute the warrant. Upon arrival, the officers conducted a protective sweep of the apartment and identified the occupants as Legg's mother, brother, and his brother's step-sister. The officers requested that these individuals remain seated in the living room while the search was being conducted. Legg's brother refused to cooperate, however, and had to be escorted back to the living room on several occasions. While Deputy Young was searching a closet in Legg's bedroom, he lifted a box from a shelf, inadvertently knocking a...

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