564 F.2d 384 (10th Cir. 1977), 76-1438, United States v. Oakes

Docket Nº:76-1438.
Citation:564 F.2d 384
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ted E. OAKES, Defendant-Appellant.
Case Date:October 25, 1977
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 384

564 F.2d 384 (10th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ted E. OAKES, Defendant-Appellant.

No. 76-1438.

United States Court of Appeals, Tenth Circuit

October 25, 1977

Argued May 17, 1977.

Page 385

David J. Phillips, Asst. Federal Public Defender, Kansas City, Kan. (Leonard D. Munker, Federal Public Defender, Kansas

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City, Kan., on the brief) for defendant-appellant.

Richard L. Hathaway, Asst. U. S. Atty., Kansas City, Kan. (E. Edward Johnson, U. S. Atty., Topeka, Kan., on the brief) for plaintiff-appellee.

Before LEWIS, Chief Judge, and BREITENSTEIN and DOYLE, Circuit Judges.

LEWIS, Chief Judge.

Appellant was convicted in the district court for the District of Kansas of knowingly possessing an unregistered machine gun in violation of 26 U.S.C. § 5861(d). The gun was purchased from appellant by an undercover agent for the Alcohol, Tobacco, and Firearms section of the United States Treasury Department. The agent posed as a firearms dealer who was supplying weapons to domestic political groups. Appellant met with the agent, usually at appellant's home, on numerous occasions, the two often spending hours discussing guns and politics. There is no question that the undercover agent was in the home by invitation and with appellant's consent.

The government agent purchased firearms from appellant on seven different occasions. One of these purchases involved the gun in question. The gun had at one time been in the possession of the Kansas City, Kansas police, having been given to them by appellant's wife after a marital dispute. When the gun was returned to appellant by the police the barrel was welded shut. At the time of the purchase by the government agent, however, the barrel had been cleared and the gun could have been made operable with relatively minor repairs.

On appeal Oakes asserts four grounds which allegedly require the reversal of his conviction. Two of these grounds involve constitutional issues.

I.

Appellant argues that the agent's presence in his home for the purpose of gathering evidence of illegal possession of firearms was an unlawful search and seizure in violation of the fourth amendment. Appellant clearly has an arguable fourth amendment claim since the agent entered his home seeking to obtain evidence. The fact that there was no physical search of the house, in the sense of opening closets and drawers, or seizure of tangible evidence, is not determinative. The Supreme Court has made clear that the protections of the fourth amendment can be violated by guile as well as by force. See Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374.

The flaw in appellant's argument lies in the fact that the agent entered the house by invitation and took away nothing that was not voluntarily given or sold by appellant. The Supreme Court has addressed a virtually identical fact situation in Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312. That case involved an undercover narcotics agent who was invited into the defendant's house for the purpose of buying marihuana. The Court held that the subsequent introduction of the marihuana at trial was proper because the seizure of the drug did not violate the fourth amendment. Adopting the government's language, the Court stated that the case " 'presents no question of the invasion of the privacy of a dwelling; the only statements repeated were those that were willingly made to the agent and the only things taken were the packets of marihuana voluntarily transferred to him.' " 385 U.S. at 212, 87 S.Ct. at 428.

Defendant attempts to avoid the force of Lewis by distinguishing its facts. He argues that while in Lewis the agent was specifically invited into the home for an illegal purpose, that is, the purchase of marihuana, in this case the agent came only to investigate and no firearms changed hands until the third visit. We do not believe that the purpose of either the defendant in extending the invitation, or the agent in accepting it is the critical factor. The fact is that the agent entered only at defendant's invitation and removed only that which was freely offered. "What a person knowingly exposes to the public

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even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, citing Lewis v. United States, supra. We hold that the agent's actions here did not violate defendant's...

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