Bynum v. United States, 10754.

• Decision Date: 08 May 1978
• Docket Number: No. 10754.,10754.
• Citation: 386 A.2d 684
• Parties: Roland BYNUM, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 684

386 A.2d 684

Roland BYNUM, Appellant, v. UNITED STATES, Appellee.

No. 10754.

District of Columbia Court of Appeals.

Argued December 14, 1976.

Decided May 8, 1978.

Warren C. Nighswander, Public Defender Service, Washington, D. C., for appellant. Frederick H. Weisberg, Public Defender Service, Washington, D. C., also entered an appearance for appellant.

Steven R. Schaars, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Iraline G. Barnes, Neil I. Levy and Carol E. Bruce, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY and HARRIS, Associate Judges, and PAIR, Associate Judge, Retired.

KELLY, Associate Judge:

Appellant was convicted of receiving stolen property. D.C.Code 1973, § 22-2205. He contends in this appeal that the stolen item, a tape recorder, was seized impermissibly because it was taken during the execution of a search warrant which facially was invalid for lack of probable cause. He claims, alternatively, that if the search warrant was valid, the seizure of the tape recorder exceeded the scope of the warrant. We reverse.

I

On April 24, 1975, a police officer prepared an affidavit in support of an application for a search warrant which read:

At approximately 1500 hours, on April 23, 1975 the undersigned Officer along with his partner Officer John K. Mangan of the First District Casual Clothes monitored a flash look-out for an old Valiant, light blue in color, bearing Maryland tags or possibly D.C. tags with a skeleton hanging from the rear view mirror. At approximately 1540 hours we were cruising south in the 1000 block of 3rd Street, S.W. when we observed the above described vehicle proceeding north in the 1000 block of 3rd Street, S.W. and then turn east in the 200 block of K Street. We subsequently stopped the vehicle in the alley west side of the 1100 block of Delaware Avenue, S.W. The driver of the auto, Roland Bynum of 231 K Street, S.W., negro male, D.O.B. 1-14-52, and the passenger Jeffrey Alan Greenfield of 200 I Street, S.W., negro male, D.O.B. 7-14-55, were transported back to the scene of the Burglary II for which the look-out for the auto was flashed. I.D.'s on the two subjects were negative. The subjects were then released. Prior to release I removed a pair of brown cloth gloves from Bynum's rear pants pocket and there was a pry bar in the auto he was driving on the floor to the left of the driver's seat.

Due to the fact that the subject Bynum lives within two blocks of the Burglary scene, and he was driving the auto when it was stopped we request that a search warrant be issued to search 231 K Street, S.W. to attempt to recover the property taken in the Burglary. The property is described below:

One white metal wedding band with Ivory trim

One ring of Greek origin with a Greek goddess holding a snake in her hands One pair of black Opera binoculars One black plastic portable radio name and serial numbers unknown

One KLH FM Stereo system with a Girard turntable and two walnut speakers One Brother portable sewing machine pale grey and blue in color

One Sony table radio AM/FM with 5 bands black in color

One Rolex watch silver metal with a white face and silver metal band

One antique Flemish tapestry dark brown wool background with a countryside setting with pink and white flamingos in same

Subsequent investigation revealed that in fact there had been a Burglary at 156 G St. S.W. A search of the automobile revealed no proceeds of the Burglary.

The affidavit, which was reviewed, approved, and signed by an Assistant United States Attorney, was presented to a Superior Court judge. The warrant issued and was executed the same day. Appellant's mother was at home during the search. Upon demand, she provided the officers with the key to a padlocked linen closet. In the closet, one of the officers found a tape recorder with a name and address etched on it. Knowing that the address was that of a townhouse which had been the site of a previous burglary, the officer seized the item "as suspected proceeds of crime." Appellant's mother told the officers that appellant had given her the recorder. The officer later learned that the recorder, identified by its serial number, had indeed been stolen. Appellant was arrested under the authority of a warrant and was prosecuted. Following the denial of his motion to suppress, appellant waived his right to a jury and went to trial on stipulated facts.

As to appellant's first claim of error, we recognize, of course, that reviewing courts must give substantial deference to the issuing judge's or magistrate's decision, Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and that warrants must be construed not with an exacting eye for detail but with a common sense realism, United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (plurality opinion), United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). However, our scope of review in determining the validity of any warrant is confined solely to a consideration of the affidavit itself. Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). As a reviewing court, we must be sure that the issuing magistrate performs a "`neutral and detached' function and [does] not serve merely as a rubber stamp for the police." Id. 378 U.S. at 111, 84 S.Ct. at 1512.

In the instant case, Officer Shedeck, the affiant, concluded that since appellant lived in the vicinity of the crime scene and was found with a pair of cloth gloves in his pocket and a "pry" bar in his car¹ that a search warrant should issue for his [mother's] entire premises "to attempt to recover the property taken in the Burglary." Two significant facts which appear in the affidavit and which the trial court seemingly discounted were that when returned to the scene, an eyewitness failed to identify appellant, and that no proceeds of the burglary were found in the car appellant was driving.

When appellant was not identified and the search of the car failed to reveal any proceeds of a crime, the police were correct in releasing him because, as they recognized and so testified, there was no probable cause to place appellant under arrest. Therefore, it is difficult to see that with no additional facts why the trial court concluded that probable ause existed to issue the disputed search warrant. It is true that testimony was presented at the hearing on the motion to suppress regarding the subsequent investigation of the burglary which supplements the information known to the police at the time the warrant issued.² However, as we have said, only facts contained within the affidavit as submitted to the issuing judge or magistrate can be considered on review of the sufficiency of the warrant: i.e., whether it was issued on probable cause. See Aguilar v. Texas, supra at 109 n. 1, 84 S.Ct. 1509. See also Tabasko v. Barton, 472 F.2d 871, 873 (6th Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2288, 36 L.Ed.2d 974 (1973); United States v. Kahn, 471 F.2d 191, 197 (7th Cir. 1972).

The problem here is not that the affidavit in support of the search warrant is technically imprecise or poorly drafted, but that it does not state sufficient facts to support an independent determination by the issuing judicial officer that probable cause exists to enter and search a person's home. See, e. g., Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Spinelli v. United States, supra; United States v. Ventresca, supra; Aguilar v. Texas, supra; United States v. Giordenello, supra. Accordingly, we conclude that the search warrant was facially invalid.

II

The resolution of the warrant issue dispenses with the necessity of reviewing the validity of the seizure of the tape recorder. However, assuming arguendo that the search warrant was valid, the seizure of the tape recorder would have exceeded the warrant's scope. The Fourth Amendment requires that items to be seized pursuant to a warrant must be specifically listed or generally described within that warrant. See Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927).

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Supreme Court made it clear that seizure of items in plain view may not be made unless it is "immediately apparent to the police that they have evidence before them." Id. at 466, 91 S.Ct. at 2038. The plain view exception is not one which allows the seizure of an item on mere suspicion.

The question therefore becomes whether the cassette player was immediately recognizable to Officer Mangan as evidence of a crime. On the record of the instant case, we conclude in the negative. Officer Mangan testified at the motions hearing that when he saw the address "234 G Street, S.W. etched on the side of the tape player," he was reminded of a reported burglary at that address "a month and a half to two months earlier." He conceded that he had no follow-up information regarding that burglary and that the case might have been closed without his knowledge. Nevertheless, he decided to seize the player "as suspected proceeds of crime." After seizing the item, Officer Mangan returned to police headquarters where he ascertained that a burglary had in fact occurred some four months earlier at 234 G Street, S.W., and a tape recorder was one of the items listed as stolen.

Where police officers, pursuant to a warrant authorizing a search of a house for specific items, come across some other article in plain view, there must at least be probable cause to believe that article is incriminating evidence. United States v. Johnson, 541 F.2d 1311, 1316 (8th Cir. 1976); United States v. Clark, 531...