405 F.2d 253 (5th Cir. 1968), 25338, Gurleski v. United States

Docket Nº:25338, 25339.
Citation:405 F.2d 253
Party Name:Michael Joseph GURLESKI and Dorothy Villafranca, Appellants, v. UNITED STATES of America, Appellee. Frank SMITH, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 27, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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405 F.2d 253 (5th Cir. 1968)

Michael Joseph GURLESKI and Dorothy Villafranca, Appellants,


UNITED STATES of America, Appellee.

Frank SMITH, Appellant,


UNITED STATES of America, Appellee.

Nos. 25338, 25339.

United States Court of Appeals, Fifth Circuit.

November 27, 1968

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Dudley D. McCalla, Will G. Knox, Austin, Tex., for Michael Joseph Gurleski, et al.

Brooks Holman, Robert Everett L. Looney, Austin, Tex., for Frank Smith.

Andrew L. Jefferson, Jr., First Asst. U.S.Atty., Ernest Morgan, U.S.Atty., Ralph H. Harris, III, Asst. U.S.Atty., San Antonio, Tex., for appellee.

Before GOLDBERG and CLAYTON [*] Circuit Judges, and NOEL, District Judge.

GOLDBERG, Circuit Judge:

This is a consolidated appeal from convictions of the three appellants for conspiracy to violate the Dyer Act, 18 U.S.C. § 2312, and substantive violations of the same act. Count One of the indictment was a general conspiracy count under which the jury found all three appellants guilty. Count Three of the indictment charged Gurleski with transporting a stolen 1966 Volkswagen from Texas to California and charged Villafranca and Smith as aiders and abettors. Count Four charged another defendant, Branton, with transporting a stolen 1966 Pontiac from Texas to Nevada and charged Gurleski, Villafranca and Smith as aiders and abettors. The jury found Gurleski and Villafranca guilty under Counts Three and Four of the indictment and Smith guilty under Count Four but not guilty under Count Three. These appellants appeal their convictions under all counts.

Appellants Gurleski and Villafranca raise substantial constitutional questions with regard to certain searches and seizures and the admission of evidence therefrom. After careful review, we affirm for reasons that will appear below.



The facts of the search conducted under the search warrant are undisputed. On March 23, 1967, Deputy Gary Simpson of the Travis County Sheriff's Department conducted a search of the premises at 904 St. Elmo Circle in Austin, Texas, pursuant to a validly executed state search warrant. The warrant specified as objects of the search certain

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enumerated items. 1 It is conceded that the state officer seized several items not specifically listed in the warrant (and none of the items that were listed). Appellant objects to the introduction of the items seized which were not described in the warrant, specifically Government Exhibits 57-64. 2 The government justifies the seizure and introduction of this evidence on either of two alternative grounds. The government contends first that the objects in question were properly admitted because they were seized as 'instrumentalities of crime' or 'fruits of the crime' during the execution of a valid search warrant. An alternative ground relied on is the Supreme Court's abrogation of the 'mere evidence' rule in Warden, Maryland Penitentiary, v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Appellants, on the other hand, liken the search and seizure of these items to a general exploratory search for evidence such as that condemned in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). They answer the government's alternative argument by asserting that even if the Supreme Court has abolished the 'mere evidence' rule in federal cases, search and seizure of 'mere evidence' is still forbidden under Texas Law. The principal question for determination remains the extent to which evidence seized during a search conducted under an admittedly valid search warrant is admissible if it is not described in the warrant.

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. A warrant must issue only upon probable cause and 'particularly describing the place to be searched and the person or things to be seized'. The Supreme Court early stated that 'the requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927).

If this broad language were unwaveringly applied in every case, it is obvious that there could never be a valid seizure of anything not described in the search warrant. However, the Marron doctrine has generally not prevailed when the search and seizure was considered reasonable under all the circumstances. Many lower and intermediate federal courts, including those of this circuit, have regarded Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), as formulating an exception to the strict language of Marron, thus permitting the introduction of the evidence seized in searches of the type involved in the case sub judice. In Harris, the defendant was convicted of unlawful possession, concealment and alteration of Selective Service documents. These documents were admitted into evidence over defendant's objection. The grounds for objection were that agents of the FBI had a warrant to arrest defendant for

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mail fraud violations and in the process of a search incident to that arrest discovered the incriminating Selective Service documents relating to an entirely different offense. The Supreme Court upheld the conviction and found that the objects discovered were properly subject to seizure. The language of the court which forms the principal basis for the many lower court opinions relying on Harris is as follows:

In the present case the agents were in possession of facts indicating petitioner's probable guilt of the crime for which the warrants of arrest were issued. The search was not a general exploration but was specifically directed to the means and instrumentalities by which the crime charged had been committed * * * the agents conducted their search in good faith for the purpose of discovering the objects specified. * * * Nothing in the agents' conduct was inconsistent with their declared purpose. 331 U.S. 153, 154, 67 S.Ct. 1098, 1102.

The reasoning of the Harris majority, while specifically related to searches incident to a lawful arrest, applies with equal force to a search made under authority of a valid search warrant. The Supreme Court in Warden v. Hayden, supra, impliedly considered all searches under lawful authority (either arrest warrant or search warrant) to be governed by the same limitations. 3 The search must be one directed in good faith toward the objects specified in the warrant or for other means and instrumentalities by which the crime charged had been committed. It must not be a general exploratory search through which the officers merely hope to discover evidence of wrongdoing. No suggestion has been made that this search was too thorough or too long in duration. Deputy Simpson was looking for the objects specified in the warrant. When he came upon evidence that indicated possible theft from or of automobiles, he could reasonably have seized the evidentiary matter in question as instrumentalities which might be connected with the theft of the objects specified in the warrant.

Our position is buttressed by the Supreme Court's decision in Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), where the court upheld a search incident to an administrative arrest prior to deportation which resulted in the discovery of objects leading to a conviction for espionage. The agents were not specifically looking for such evidence, but they discovered it in the course of an orderly search under lawful authority. The court specifically found that the administrative search was not a subterfuge for a search directed toward uncovering evidence of espionage. Similarly, there was no covert attempt to unmask a car theft ring in the case at bar. There is no evidence that federal authorities had contacted state officials to ask them to make a pretended search for stolen goods. In this case, as in Harris and Abel, officers acting in good faith and under proper authority discovered evidence of more than one offense. There is no logical or constitutional reason, in the absence of any showing of unreasonableness, why the fruits of such a discovery should not be admissible evidence. The Supreme Court speaking through Mr. Justice Frankfurter spoke logically and directly to this issue when it said:

When an article subject to lawful seizure properly comes into an officer's

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possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for. Abel v. United States, supra, at 238, 80 S.Ct. at 697.

The exception to the stringent Marron doctrine formulated in Harris and reiterated in Abel has been followed by the majority of lower federal tribunals. 4 In Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539 (1961), cert. den. 375 U.S. 888, 84 S.Ct. 167, 11 L.Ed.2d 118, officers had a search warrant for certain stolen articles, including a vacuum cleaner, clock radio and other valuaables. In the course of searching for these things, an officer looking in a dresser drawer discovered a credit card issued in the name of the complaining witness. The introduction of the credit card into evidence was upheld by the court, relying on Harris. The court stated that an officer engaged in a lawful search is not confined to seizing only those items described in the warrant especially where the unlisted items seized are instrumentalities of a crime. In United States v. Eisner, 297 F.2d 595 (6 Cir. 1962), cert. den. 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17, the defendant was convicted of...

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