U.S. v. Wallace, 84-5204

Decision Date19 February 1985
Docket NumberNo. 84-5204,84-5204
Citation747 F.2d 370
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert H. WALLACE, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Dale Quillen, Lucinda Smith (argued), Nashville, Tenn., for defendant-appellant.

Joe B. Brown, U.S. Atty., Harold B. McDonough, Jr., John Williams (argued), Asst. U.S. Attys., Nashville, Tenn., for plaintiff-appellee.

Before EDWARDS and CONTIE, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PER CURIAM.

This is an appeal from the conviction of appellant Robert H. Wallace who had been indicted by a federal grand jury in the Middle District of Tennessee. Counts 1 and 2 charged Wallace with possessing a revolver and 10 firearms in March, 1983, in violation of 18 U.S.C.App. Sec. 1202(a)(1). Wallace was charged also with being a convicted felon who received six of the firearms referred to above, in violation of 18 U.S.C. Sec. 922(h)(1). A motion to suppress the evidence (the weapons) was made and heard before District Judge John T. Nixon who denied the motion.

At trial, the defendant, having waived a jury trial at the conclusion of the government's proofs, was found guilty by the court. The defendant was sentenced to two years incarceration on count 1 and two years incarceration on count 2 with the sentences to run consecutively. As to counts 3 to 8, the defendant was sentenced to five years on each count with the sentences to run concurrently with each other, and with imposition of the sentences on counts 3 to 8 suspended and the defendant placed on probation. The sentences in counts 3 to 8 were ordered to run consecutively to the sentences in counts 1 and 2.

The record is replete with evidence which would support the convictions. The sole issue in this appeal is whether the search warrant issued for these weapons was fatally flawed so that the District Court should have and this court now must suppress said evidence.

Basically, two claims are made in this appeal pertaining to the defectiveness of the search warrant. Appellant contends that the affidavit recited that Wallace had firearms in his possession on February 23, 1983, but that this did not set forth probable cause to believe the firearms would be located on the premises searched 26 days later. Secondly, appellant contends that the search warrant was invalid because the property to be searched was not "particularly...

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