United States v. Carwell, 73-1733.

Citation491 F.2d 1334
Decision Date25 February 1974
Docket NumberNo. 73-1733.,73-1733.
PartiesUNITED STATES of America, Appellee, v. Robert Lee CARWELL, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Larry B. Leventhal, Minneapolis, Minn., for appellant.

Robert G. Renner, U. S. Atty., Minneapolis, Minn., for appellee.

Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.

PER CURIAM.

Defendant was convicted of violating 18 U.S.C. App. § 1202(a)(1).1 Defendant urges reversal on two issues: (a) the revolver admitted into evidence should have been suppressed, and (b) the Government did not sufficiently prove that the receipt of the revolver was "in commerce or affecting commerce." We reject these arguments and affirm the judgment of conviction.

On September 29, 1972, Officer Ronald Johnson, a narcotics officer with the Minneapolis Police Department, obtained a search warrant from a state court for 619 East 32nd Street, Apartment 3, Minneapolis, Minnesota, and for the person of Robert Lee Carwell. The search warrant was for the following specifically described property:

Narcotic drugs and controlled substances possessed without authority of law including but not limited to heroin, cocaine, hypodermic needles and syringes and monies to show sales of above contraband and items of identification to show constructive possession of above contraband such as rent receipts, utility bills and other forms of personal identification.

Officer Johnson had also learned that a revolver might be in the possession of defendant at the same address. Officer Johnson did not attempt to apply for a search warrant to seize the handgun, since he was only concerned with a probable narcotics violation. Officer Johnson testified at the suppression hearing that he did not apply for a search warrant for the revolver because he could not specifically describe it. He did, however, contact a special agent with the Bureau of Alcohol, Tobacco and Firearms and asked him if he would like to accompany him during the search of defendant's apartment. Occupied with other matters, the special agent did not accompany Officer Johnson.

Officer Johnson and Lieutenant Bendt went to defendant's premises on September 29th to execute the search warrant. In the bedroom, Officer Johnson found two envelopes in a jacket pocket. One envelope contained several small aluminum foil packets of a powdery, brown substance. Lieutenant Bendt found the revolver, a .38 caliber Colt, in a dresser drawer of the same bedroom, while defendant, who was not resisting, was with Officer Johnson in the living room. Defendant told the officers that the powdery substance was part of a "bunco game," in which defendant "browned" a sleeping agent to make it appear like heroin. Officer Johnson, who knew prior to the search that defendant had been convicted of a felony, asked defendant where he had received the weapon. Defendant said that he had taken it on "pawn" the previous day for five dollars from a blond-haired boy named Johnny. Defendant was arrested for a narcotics violation. A subsequent chemical analysis of the seized brown, powdery substance proved it to be a non-controlled substance. Officer Johnson also released the revolver to the Bureau of Alcohol, Tobacco and Firearms, and defendant was charged with the violation of 18 U.S.C. App. § 1202(a) (1) of this case.

Defendant's timely motion to suppress the revolver was heard and denied on January 18, 1973. Defendant moved for reconsideration, and on May 10, 1973, the Honorable Miles W. Lord held an evidentiary hearing, and on May 15, 1973, denied defendant's motion to suppress the revolver. Defendant pled guilty on May 31, 1973, subsequently withdrew his guilty plea, and was found guilty by a jury on August 21, 1973. The Honorable Gerald W. Heaney, United States Circuit Judge, Eighth Circuit, sitting by designation, who presided at the trial, sentenced defendant to two years imprisonment. Defendant timely appealed.

Defendant argues that the revolver should have been suppressed because it was not uncovered "inadvertently", as purportedly required in this situation by the plurality in Coolidge v. New Hampshire, 403 U.S. 443, 467-473, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Defendant contends that "it can indeed be surmised that the police intended to look for and, if found, seize the revolver within the general guise of a search warrant specifying narcotics." Defendant argues that Coolidge requires the suppression of the revolver in this case, since the discovery of the revolver was not "inadvertent" according to Coolidge's rationale.

The Government, however, opposes the application of Coolidge and instead cites Seymour v. United States, 369 F.2d 825, 827 (10th Cir. 1966), cert. denied, 386 U.S. 987, 87 S.Ct. 1297, 18 L.Ed.2d 239 (1967), for the principle that an officer may, in the execution of a valid search warrant, seize evidence of another crime.

We agree with the District Court that Coolidge v. New Hampshire is not applicable to the facts of this case. In Coolidge, Mr. Justice Stewart for the plurality said that Coolidge was "not a case involving contraband or stolen goods or objects dangerous in themselves." Coolidge v. New Hampshire, 403 U.S. at 472, 91 S.Ct. at 2041 (footnote omitted). Mr. Justice White, concurring and dissenting, also said:

It is careful to note that Coolidge\'s car is not contraband, stolen, or in itself dangerous. Apparently, contraband, stolen, or dangerous materials may be seized when discovered in the course of an otherwise authorized search even if the discovery is fully anticipated and a warrant could have been obtained.

Coolidge v. New Hampshire, supra at 519, 91 S.Ct. at 2064.

The search of defendant's apartment for narcotics was properly authorized. Further, there is no indication that the search warrant for narcotics was in bad faith or a ruse to obtain entry in order to seize the revolver. The District Court specifically found that "the search was strictly for drugs and the Officers had no specific intent to search for and seize a weapon."

We think that the seizure of the revolver and its...

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  • U.S. v. Garcia
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    • August 8, 2007
    ...the Sanchez decision itself emphasized the third condition by distinguishing the Eighth Circuit's decision in United States v. Carwell, 491 F.2d 1334 (8th Cir.1974), on the basis that "Carwell did not involve a simultaneous search for different articles by local and federal authorities." Sa......
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