U.S. v. Hepperle
| Decision Date | 25 March 1987 |
| Docket Number | No. 86-1675-SI,86-1675-SI |
| Citation | 810 F.2d 836 |
| Parties | UNITED STATES of America, Appellee, v. Daniel Dean HEPPERLE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jon B. Schuster, Des Moines, Iowa, for appellant.
Joseph S. Beck, Asst. U.S. Atty., Des Moines, Iowa, for appellee.
Before McMILLIAN, BOWMAN, Circuit Judges, and CONMY, * District Judge.
Daniel Dean Hepperle appeals his convictions for interstate transportation of stolen property and concealing stolen property which had moved in interstate commerce, knowing it to be stolen. 18 U.S.C. Secs. 2314, 2315. Mr. Hepperle alleges on appeal that searches by law enforcement officials violated his fourth amendment rights, and that the fruits of those searches must therefore be suppressed. Mr. Hepperle also contends that the evidence is insufficient to support the verdict.
Daniel Goode raises birds in rural Selma, Alabama, and sells them commercially. In September, 1985, appellant and his brother visited Goode's farm to examine and purchase a baby macaw for use in nutrition research. Goode testified that appellant closely observed the physical layout of the farm and the aviary, noting the location of each building and each macaw pair within the aviary. Appellant's observations were dictated into a tape recorder which appellant carried. Appellant's brother denied this testimony.
Sometime during the late evening of January 2, or early morning of January 3, 1986, three macaw pairs were stolen from Goode's aviary: one buffons pair, one scarlet pair, and one green wing pair. Goode's neighbors reporting having seen a tan or white station wagon with brown siding and an orange tarp in the rear passing through the neighborhood on the afternoon of January 2. The vehicle had not been seen in the vicinity before and was considered suspicious. A local deputy sheriff investigated the scene, and reported finding tire tracks with mismatched treads--five treads in the front and seven treads in the rear.
Goode notified various bird dealers of the theft. On January 6, 1986, one of these dealers contacted him and informed him that a pair of buffons macaws and green wing macaws were advertised as being for sale in the Des Moines, Iowa, newspapers. On January 7, 1986, another dealer notified FBI Special Agent Oxler that appellant had contacted him and indicated that he had a green wings pair and a buffons pair for sale, and that he had just sold a scarlet macaws pair. On January 8, 1986, FBI Special Agent Coppinger applied to the magistrate in Des Moines, Iowa, for warrants to search appellant's place of business and residence. The magistrate issued the warrants at 5:10 p.m. on January 8, 1986. Special Agent Coppinger telephoned law enforcement officials in Ames, Iowa, and notified them that the warrants had issued. Those law enforcement officials proceeded immediately to appellant's business and residence to commence their searches.
Appellant and his brother were present at appellant's business address, and objected to the search. Appellant asked to see a copy of the warrant; he was informed that the warrant was on its way from Des Moines and would arrive before the officer left the premises. Appellant's brother stated that he would not allow the officers to search until the warrant arrived; the officer indicated that if appellant's brother interfered, he would be arrested. The officers then commenced searching and seized various business records. The warrant arrived, and the inventory was completed prior to the officer's departure from the scene. Appellant received a copy of the warrant and the inventory.
Meanwhile, other officers had identified themselves to Clemencia Hepperle, appellant's wife, and commenced searching appellant's residence. Mrs. Hepperle testified that she was "scared and intimidated," but that she consented to the officers' entry and search. The officers at the residence contacted officers at the business, and notified them that Mrs. Hepperle seemed to have some difficulty with the English language, and that perhaps appellant should talk with her. Appellant did talk with Mrs. Hepperle; officers informed appellant that he was free to go to his residence to be with her if he so desired, but he refused.
The officers found a buffons pair and a green wing pair of macaws, as well as a single scarlet macaw at appellant's residence. Goode identified the pairs as his, but stated that the scarlet macaw was not his; the scarlet pair was later recovered from R.D. Buckingham, who had traded appellant the single scarlet macaw and some cash for Goode's scarlet pair.
The warrant arrived at the residence while the officers were searching; Mrs. Hepperle testified that she read and understood the warrant and inventory, and that she signed the inventory.
The officers then met at the local police headquarters. One or more of the officers indicated that they had observed a station wagon behind appellant's residence that matched the description provided by Goode of the vehicle observed by neighbors on January 2, 1986. Agent Oxler testified that, after considering the cumulation of seized evidence, and that the appellant was now alerted, they decided to seize the vehicle.
A subsequent search of the vehicle rendered soil samples, various road maps, two orange carpets, mismatched tire treads (five in front, seven in back), a fishing net, wire cutters, and a large white feather.
The fourth amendment protects the right of the person to be free from unreasonable searches. The fundamental inquiry in considering fourth amendment issues is whether the search and seizure was unreasonable under all the circumstances. United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977).
Rule 41, Federal Rules of Criminal Procedure, outlines procedural requirements relating to search warrants. Section 41(d) provides:
The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The federal magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
Appellant argues that it was unreasonable for law enforcement officials to commence the searches prior to the arrival of a warrant, and that this unreasonableness renders the searches invalid, requiring that the "fruits" be suppressed.
The court disagrees. While it may be foolhardy to proceed in the absence of the physical presence of the warrant, it is not unconstitutional. Nothing in the fourth amendment or Rule 41 requires that the search warrant be physically present prior to commencing the search. Katz v. United States, 389 U.S. 347, 355 n. 16, 88 S.Ct. 507, 513 n. 16, 19 L.Ed.2d 576 (1967); United States v. Marx, 635 F.2d 436, 441 (5th Cir.1981) (); United States v. McKenzie, 446 F.2d 949, 954 (6th Cir.1971) (); United States v. Woodring, 444 F.2d 749, 751 (9th Cir.1971) ().
Appellant argues that this court has never specifically addressed the issue, but has implied that any evidence discovered prior to the arrival of the warrant must be suppressed. United States v. Williams, 737 F.2d 735 (8th Cir.1984).
In Williams appellant's house was under surveillance when a search warrant was issued. The surveillance officers entered the house prior to arrival of the warrant, conducted an initial security search, and then waited for...
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