U.S. v. McCain

• Citation: 677 F.2d 657
• Decision Date: 11 May 1982
• Docket Number: No. 81-1751,81-1751
• Parties: UNITED STATES of America, Appellee, v. Eddie McCAIN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 657

677 F.2d 657

UNITED STATES of America, Appellee, v. Eddie McCAIN, Appellant.

No. 81-1751.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 17, 1981.

Decided May 11, 1982.

James E. Wollrab, St. Louis, Mo., for appellant.

Thomas E. Dittmeier, U. S. Atty., Richard L. Poehling, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, and HENLEY and ARNOLD, Circuit Judges.

HENLEY, Circuit Judge.

Appellant Eddie McCain appeals his conviction on a charge of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). His primary contentions are that the district court ¹ erred in refusing to suppress evidence obtained through both an impermissible, warrantless search and a defective search warrant.

We affirm the judgment of the district court.

The facts pertinent to this appeal date to the year preceding McCain's arrest on August 4, 1980. During this year, on numerous occasions, Officers Nicholas Frederiksen and Robert Thomure of the St. Louis, Missouri police department engaged in surveillance of the 4500 block of Delmar for traffic in heroin. On August 3 and 4, 1980, the officers received information from a confidential, reliable informant that narcotics could be found in McCain's premises ² in this block.

At 6:00 p.m. on August 4, 1980 the officers drove down the alley at the rear of the premises for the purpose of corroborating certain information received from the informant. At this time, they observed one Luther Williams with a vial at the rear of the building. Williams was immediately arrested.

At the time of Williams' arrest, Officer Frederiksen stepped inside the rear door of McCain's machine shop at 4510 Delmar. Frederiksen identified himself as a police officer, and shouted to see whether any other persons were present. The record suggests that Frederiksen was concerned to determine whether police presence had been detected. Frederiksen left when he received no response. ³

Officers Frederiksen and Thomure then applied for and received a state search warrant for "4510 Delmar, offices and work area of a machine shop." With the help of back-up police personnel, they executed the warrant within four hours of Williams' arrest at 10:00 p.m. on August 4, 1980.

The warrant was executed by entry into the middle of three front doors at McCain's premises. Officer Frederiksen announced his presence outside the middle door. This entry later proved to be 4512 Delmar. When he received no answer to his request to be admitted as a police officer with a search warrant, Frederiksen climbed through the transom of the middle door.

Frederiksen and two other officers proceeded down a hallway into an empty front room, and then into an office area of 4512 Delmar. Here, the police discovered and arrested appellant amidst various drugs and drug paraphernalia. Seven packets and a bottle containing heroin with a street value in excess of $15,000.00 were seized.

Appellant filed pretrial motions to suppress which were heard by a United States Magistrate, with the result that Count II of the indictment ⁴ was dismissed. Appellant's first trial on Count I, the heroin charge, terminated in a mistrial when the jury could not reach a verdict.

The case was retried on June 29, 1981. The jury returned a verdict of guilty, and the district court sentenced McCain to the custody of the Attorney General for a term of seven years to be followed by a special parole term of five years.

Appellant's arguments for reversal are that the trial court erred (1) in refusing to suppress evidence because the search warrant did not accurately name or describe the premises searched; (2) in denying his motion to suppress because the search warrant was based on a prior warrantless entry of the premises; (3) in denying his motion to suppress because the search warrant did not state reasonable cause for a night time search as required by Fed.R.Crim.P 41(c)(1); and (4) in admitting heroin samples which were not identified by a qualified witness.

Appellant's strongest argument for reversal is that the search warrant was facially deficient in its description of the premises to be searched. The warrant targeted for search the address "4510 Delmar, offices and work area of a machine shop." Strictly speaking, this description was accurate only insofar as McCain's machine shop was housed in a single-story structure at 4510 Delmar. The "offices" at McCain's premises were in an adjoining two-story structure marked by two front doors, leading respectively into 4512 and 4512A Delmar.

There is no doubt that the officers conducted a search of the first floor of 4512 Delmar. The heroin which is the basis for appellant's conviction was found there. We are compelled to conclude that the search warrant, in specifying "4510" as the operative street address for the officers' search, was technically deficient as to any search of the 4512 area of McCain's premises.

Not every defect in a search warrant, however, compels suppression of evidence seized pursuant to the warrant. The test for determining the sufficiency of the warrant description is "whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched." United States v. Gill, 623 F.2d 540, 543 (8th Cir.), cert. denied, 449 U.S. 873, 101 S.Ct. 214, 66 L.Ed.2d 94 (1980), quoting United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.) (citation omitted), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979).

The first prong of the test, which looks to the officers' ability to locate the property with reasonable effort, is satisfied here. There is ample evidence in the record to show that the officers expected to search and reasonably did search the entire first floor area controlled by McCain, including the machine shop at 4510 Delmar and the office at 4512 Delmar. The affidavits presented by Frederiksen and Thomure as a basis for a search warrant targeted the "front office" and workshop as locations for McCain's drugs.

The problem is not so much one of the officers' ability to locate the area they wished to search as one of their ability accurately to describe their target. The record shows that three external doors led into the buildings at 4510-4512A Delmar. The door furthest east led into the one-story building housing McCain's machine shop at 4510 Delmar. The other two doors led into a two-story building which shared a common external wall with the machine shop. One of these doors, that is, the middle door, led into McCain's office and sleeping area at 4512 Delmar, while the westmost door, numbered 4512A Delmar, led into a second floor area not at issue here. McCain at the suppression hearing denied the existence of an interior doorway connecting the machine shop at 4510 Delmar with the first floor of 4512 Delmar. The evidence of the police officers, however, viewed in the light most favorable to the verdict, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), was that such a passageway existed. For purpose of the following discussion, we assume that McCain was able to move freely between the interior first floor areas of 4510 and 4512 Delmar, and that he controlled these areas as a unit.

Two of the three front doors were unnumbered. The number on the third door, 4512A Delmar, had been nearly obliterated by dark paint. The officers checked with the postal service prior to seeking a search warrant and learned that 4512 Delmar was not an active mailing address. Electric company records showed that electric service was billed to McCain at 4510 Delmar. Electric service at this billing address ran to both the machine shop at 4510 Delmar and the smaller office area at 4512 Delmar. As indicated, the office area of 4512 was adjacent to the number address (4510) named in the warrant. Both areas were under control of appellant. United States v. Lemmons, 527 F.2d 662 (6th Cir. 1975) (warrant for street number 9300 covered all of store, including that part reached through archway in building numbered 9304), cert. denied, 429 U.S. 817, 97 S.Ct. 60, 50 L.Ed.2d 77 (1976); United States v. Melancon, 462 F.2d 82 (5th Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972).

Given the lack of exterior numbers, the use of 4510 for billing and postal service, and McCain's control of the entire first floor area as if it were a single address, Officer Frederiksen believed that "4512 Delmar did not exist as an entity." Officers Frederiksen and Thomure selected "4510" as the only active street address relevant to the area they wished to search.

In these circumstances, we conclude that any technical failure of the warrant to designate "4512" as a search target is not grounds for reversal. Where one part of the warrant description is imprecise but the description has other parts which identify the place to be searched with particularity, searches have been routinely upheld. United States v. Gitcho, 601 F.2d at 371; United States v. Shropshire, 498 F.2d 137 (6th Cir. 1974), cert. dismissed, 420 U.S. 901, 95 S.Ct. 838, 42 L.Ed.2d 845 (1975). Here, whatever the warrant lacked in accuracy as to street address, it accurately and with particularity targeted McCain's "offices" and the building premises to be searched.

The second prong of the Gitcho test, that is, the probability of a mistaken search, is strongly negated here. Mistake is less likely when the premises have been under surveillance, as they were here for over a year before the search. United States v. Gitcho, 601 F.2d at 372; United States v. Prout, 526 F.2d 380 (5th Cir.), cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976). Moreover, a mistaken search is unlikely where, as here, the same officers both apply for and execute the warrant.

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