442 F.2d 1189 (10th Cir. 1971), 464-70, United States v. Biswell

Docket Nº:464-70.
Citation:442 F.2d 1189
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Loarn Anthony BISWELL, Defendant-Appellant.
Case Date:May 18, 1971
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1189

442 F.2d 1189 (10th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellee,

v.

Loarn Anthony BISWELL, Defendant-Appellant.

No. 464-70.

United States Court of Appeals, Tenth Circuit.

May 18, 1971

Victor R. Ortega, U.S. Atty., and John A. Babington, Asst. U.S. Atty., filed a brief for plaintiff-appellee.

Warren F. Reynolds, Easley & Reynolds, Hobbs, N.M., filed a brief for defendant-appellant.

Before CLARK, [*] Associate Justice, HILL and McWILLIAMS, Circuit Judges.

Mr. Justice CLARK:

Appellant was indicted on six counts for violating the United States' firearms laws, and was found guilty by a jury on the first count, i.e. dealing in firearms as defined in the Act, 26 U.S.C. § 5845, without having paid the special occupational tax required by 26 U.S.C. § 5801, in violation of 26 U.S.C. §§ 5861 and 5871.

He contends, inter alia, that the Act is unconstitutional because it provides for the search of non-public areas of business premises without a search warrant. Such a search without a warrant was made of appellant's premises, and guns coming within the terms of the Act were

Page 1190

found there. The District Court rejected this contention and sentenced the appellant upon the verdict of guilty on Count One to two years' imprisonment. We find the conviction defective on Fourth Amendment grounds, and, therefore, do not pass upon the other issues raised.

I.

Appellant, a former police officer, had been operating a pawn shop in Hobbs, New Mexico for 12 years. On February 4, 1970, Detective Fowler of the Hobbs Police Department and Special Investigator Hupp of the United States Treasury Department paid a routine visit to appellant's shop. Hupp requested inspection of appellant's gun storerooms, and appellant inquired if Hupp had a search warrant. Hupp said 'no' but advised that the Federal Gun Control Act authorized it and showed appellant a copy of the law. 18 U.S.C. § 923(g). Appellant then 'said okay' adding 'if that is the law, I guess it is all right.' Hupp found two sawed off rifles in the gun room which were of the length covered by the Act. The guns had been pawned. Appellant had a federal license for dealing in sporting rifles etc., but had none required by the Act for dealers in gangster-type weapons-- sawed off shotguns and rifles, machine guns etc. Nor were the sawed off rifles registered.

Appellant was indicted...

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