788 F.Supp. 1076 (W.D.Mo. 1992), 92-00023-01-CR-W-6, United States v. Balano

Docket Nº:92-00023-01-CR-W-6, 92-00026-04-CR-W-6.
Citation:788 F.Supp. 1076
Party Name:UNITED STATES of America, Plaintiff, v. Joseph P. BALANO, Defendant.
Case Date:April 20, 1992
Court:United States District Courts, 8th Circuit, Western District of Missouri

Page 1076

788 F.Supp. 1076 (W.D.Mo. 1992)

UNITED STATES of America, Plaintiff,

v.

Joseph P. BALANO, Defendant.

Nos. 92-00023-01-CR-W-6, 92-00026-04-CR-W-6.

United States District Court, W.D. Missouri, Western Division.

April 20, 1992

Charles Ambrose, Asst. U.S. Atty., Kansas City, Mo., for plaintiff.

John R. Cullom, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

SACHS, Chief Judge.

The court is informed of three pending motions that have not been ruled in this case, scheduled for trial next week. Although the Government's briefing time has

Page 1077

not expired in at least one instance, the court is prepared to rule. 1

Taking the issues in reverse order, we deal first with the motion to suppress evidence of firearms seized pursuant to a warrant that did not specify firearms as items to be seized. The warrant authorized seizure of narcotics and specified drug-related items. Although no narcotics in appreciable amounts were found, there were drug-related items seized, which are not objects of the motion to suppress. Firearms were located and seized under the "plain view" doctrine. Defendant contends they should not have been seized when they were not described, on the theory that the firearms themselves were not contraband or incriminating.

The issue would seem to be whether "the incriminating nature of the object was 'immediately apparent.' " United States v. Johnson, 541 F.2d 1311, 1316 (8th Cir.1976). In the Johnson case seizure of a shotgun was permitted, as an incident to a lawful "drug bust," but only because "it seemed to be a sawed-off shotgun." Implicit in this ruling is a theory that a lawful-appearing firearm cannot be seized without a warrant, even though in plain view during a lawful search for narcotics. Such a theory is made explicit in United States v. House, 604 F.2d 1135, 1142 (8th Cir.1979), where failure to suppress was declared to be harmless error. Under current Eighth Circuit practice, I believe, with the magistrate judge, that the firearms should probably be considered to be incriminating, when narcotics are found pursuant to a warrant or when drug paraphernalia and other clear indications of drug trafficking have been located. Since there is no explicit consideration of this issue in Johnson and House, it seems probable that, short of an en banc ruling by the Court of Appeals, the firearms in this case need not be suppressed. I will accept what I believe to be current sophistication about the drug traffic and will follow the recommendation of the magistrate judge, but with warning to the prosecution that introduction of the firearms in evidence poses considerable risk under Johnson and House. 2

The motion to...

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