553 F.3d 580 (7th Cir. 2009), 08-1348, United States v. Sims

Docket Nº:08-1348.
Citation:553 F.3d 580
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Eric SIMS, Defendant-Appellant.
Case Date:January 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 580

553 F.3d 580 (7th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


John Eric SIMS, Defendant-Appellant.

No. 08-1348.

United States Court of Appeals, Seventh Circuit.

January 22, 2009

Argued Dec. 17, 2008.

Page 581

Timothy A. Bass, Office of the United States Attorney, Springfield, IL, Eugene L. Miller (argued), Office of the United States Attorney, Urbana, IL, for Plaintiff-Appellee.

Michael J. Zopf (argued), East Wing, Champaign, IL, for Defendant-Appellant.

John E. Sims, Chicago, IL, pro se.

Before BAUER, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

The defendant, convicted of illegal possession of a gun and sentenced to 30 months in prison, challenges the constitutionality of the search that discovered the gun. He argues that the warrant that authorized it failed to specify with particularity the things the searchers were looking for and therefore violated the Fourth Amendment. He is right that there was a violation but wrong that it invalidates his conviction.

Local police, having reason to believe that there was stolen property in a house (or its garage, or vehicles on the property) occupied by the defendant, presented to a state court judge an application for a search warrant together with an affidavit in support of the application and a draft warrant materially identical to the application. The affidavit listed the stolen goods believed to be on the property as " several items which included a black in color gas grill with the brand name Aussie, a yellow in color welder with ‘ multi-mig’ written on the side, a cutting torch with Hobart gauges and chrome in color snap on brand tools with initials GAG engraved." But the list was left out of the application and the draft warrant. The omissions apparently were inadvertent, because after specifying the places to be searched these documents state: " Or any other evidence indicative of a criminal offense of Burglary, Theft or Possession of Stolen Property." Probably the drafter of the warrant intended to list before " or any other evidence ..." the items listed in the affidavit. Perhaps not noticing the omissions, the judge signed the draft warrant and so it was issued and the search conducted accordingly; and it was in the course of the search that the illegal gun was discovered in a bag in the house. Since the bag was large enough to have contained tools that the police were looking for, they were entitled to look inside it and seize any contraband or evidence of crime visible to someone looking inside. E.g., United States v. Eschweiler, 745 F.2d 435, 440 (7th Cir.1984).

The Fourth Amendment states that " the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

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supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The requirement of particular description is conventionally explained as being intended to protect against " general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). But it also serves to prevent circumvention of the requirement of probable cause, see Maryland v. Garrison, 480 U.S. 79, 84-85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), by limiting the discretion of officers executing a warrant to determine the permissible scope of their search. Thomas Y. Davies, " Recovering the Original Fourth Amendment," 98 Michigan Law Review 547, 576-83 (1999). There might be probable cause to believe that a house was a drug house though not to believe that it contained counterfeit money. But the police might have suspicion short of probable cause for the latter belief and their main aim in searching might be to seize counterfeit money rather than drugs. If probable cause to search for drugs allowed them to search for counterfeit money as well-even if they had already found the...

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