541 F.2d 1311 (8th Cir. 1976), 76-1253, United States v. Johnson

Docket Nº:76-1253.
Citation:541 F.2d 1311
Party Name:UNITED STATES of America, Appellee, v. John D. JOHNSON, Appellant.
Case Date:September 21, 1976
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1311

541 F.2d 1311 (8th Cir. 1976)

UNITED STATES of America, Appellee,

v.

John D. JOHNSON, Appellant.

No. 76-1253.

United States Court of Appeals, Eighth Circuit

September 21, 1976

Submitted Sept. 17, 1976.

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Charles L. Carpenter, North Little Rock, Ark., for appellant.

W. H. Dillahunty, U. S. Atty., and Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., for appellee.

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Before GIBSON, Chief Judge, and STEPHENSON and HENLEY, Circuit judges.

PER CURIAM.

John D. Johnson appeals from his conviction by jury of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). He contends that evidence of a sawed-off shotgun should have been suppressed because it was seized during a search rendered illegal by a search warrant which was impermissibly general. We find the search warrant not fatally defective, and accordingly we affirm the conviction.

On October 4, 1975 appellant's unregistered shotgun was seized by North Little Rock, Arkansas police officers during a drug-related search conducted pursuant to a search warrant obtained after the officers had twice on the night of October 3, 1975 purchased marijuana with currency the serial numbers of which had been recorded. Upon determining first-hand the premises from which the marijuana had been supplied, the officers prepared an affidavit and search warrant which were presented to a municipal judge who signed the warrant at his residence shortly after midnight. The warrant stated that it was for the search and seizure of

marijuana, parphenrnalia (sic) and U. S. currency as described in the affidavit which constitutes evidence of criminal conduct tending to demonstrate that an offense was, and is being committed.

The search resulted in the seizure of four twenty dollar bills having serial numbers listed in the affidavit, a sawed-off shotgun which was in plain view of the searcher, but no marijuana.

Appellant Johnson was indicted by the United States Grand Jury for possession of the unregistered firearm. His motion to suppress the fruits of the search due to the generality of the warrant resulted in a full hearing in which the district court 1 ruled that there had been probable cause for the issuance of the warrant, that it had been lawfully executed, and that the word "paraphenrnalia (sic)" was not too general, referring to paraphernalia used with marijuana.

Johnson maintains that a search warrant for "marijuana, paraphenrnalia (sic) and U. S. currency as described in the affidavit" is overly broad thus calling for the suppression of evidence of the unregistered shotgun seized in the course of the search. In evaluating this assertion, the specific questions presented are 1) does the term "paraphernalia," unmodified by descriptive words, but following the expression "marijuana," meet the required constitutional standard of particularity, and 2) to what extent may deficiencies in the search warrant be cured by reference to the underlying affidavit?

I

The Fourth Amendment prohibited "general warrants" in an effort to prevent exploratory rummaging in a person's belongings by requiring that a " particular description" of the thing to be seized be stated in the warrant. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The constitutional standard for particularity of description in a search warrant dictates that the language be sufficiently definite to enable the searcher to reasonably ascertain and identify the place authorized to be searched and the things authorized to be seized. Steele v. United States,267 U.S. 498, 503-04, 45 S.Ct. 414, 69 L.Ed. 757 (1925). The underlying measure of adequacy in the description is whether given the specificity in the warrant, a violation of personal rights is likely. United States v. Bynum,386 F.Supp. 449, 461 (S.D.N.Y.1974). The standard to be used in this determination is one of practical accuracy rather than technical nicety. United States v. Gomez, 42 F.R.D. 347 (S.D.N.Y.1967). Much of the caselaw addressing the issue of warrant particularity concerns sufficiency in the description of the premises

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to be searched rather than the items to be seized, though the same basic test appropriately applies to both. Repeatedly, search warrants with minor errors in the description of the structure to be searched have been held valid so long as the executing officer exerting reasonable effort could identify the site intended. United States v. Melancon, 462 F.2d 82, 94 (5th Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972); Hanger v. United States, 398 F.2d 91, 98 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124, reh. denied, 395 U.S. 971, 89 S.Ct. 2106, 23 L.Ed.2d 761 (1969); United States ex rel. Hurley v. Delaware, 365 F.Supp. 282, 288 (D.Del.1973); United States v. Cotham, 363 F.Supp. 851, 855 (W.D.Tex.1973).

Similarly, a "practical accuracy" standard has been consistently employed in applying the Supreme Court pronouncement that in the description of property to be seized "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). This court realistically recognized the technical difficulties involved in search warrant language when it observed that the degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of items involved. Where the precise identity of goods cannot be ascertained at the time the warrant is issued, naming only the generic class of items will suffice because less particularity can be reasonably expected than for goods (such as those stolen) whose exact identity is already known at the time of issuance. Spinelli v. United States, 382 F.2d 871, 886 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Thus grounding their decisions in practicality and reasonableness, courts have found no impermissible vagueness in descriptions specifying merely "bookmaking paraphernalia" (Spinelli, supra ); "gambling paraphernalia" (Nuckols v. United States, 69 U.S.App.D.C. 120, 99 F.2d 353 (1938)); "run down sheets . . . and like paraphernalia" (Calo v. United States, 338 F.2d 793 (1st Cir. 1964)); or "nine guns" when twenty-six were actually present to be seized (United States v. Geldon, 357 F.Supp. 735 (N.D.Ill.1973)).

Although a word of art primarily in the law of property, 2 the term "paraphernalia" is not unknown in criminal law having been used in several state gambling statutes, and...

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