Petition of Becker
| Decision Date | 03 June 1981 |
| Docket Number | Magistrate No. 80-2051-M-01. |
| Parties | In re Property Seized from Manuel Becker. Petition of Manuel BECKER, Petitioner. |
| Court | U.S. District Court — District of Kansas |
F. Russell Millin, Sandra C. Midkiff, Burke, Hoffman & Millin, Kansas City, Mo., for petitioner.
John O. Martin, Asst. U.S. Atty., Kansas City, Kan., for defendant.
This matter comes before the Court upon petitioner's motion for the return of seized property and the suppression of evidence. In support of this motion, petitioner contends that the property was seized against his will, that certain of the items seized were not authorized by the search warrant, that the search warrant did not specifically describe the location of the search, and that the officers participating in the search were without jurisdiction. In his supporting brief, petitioner further alleges that the affidavit in support of the application for the search warrant was inadequate.
On October 8, 1980, the United States Magistrate authorized a search warrant for petitioner's residence. The search warrant authorized a search of the premises known as:
"4016 West 94th Street, Overland Park, Kansas; an individually numbered apartment unit in the Kenilworth Apartment Complex, prominently displaying No. 4016, fronted with brown shake shingles and stone facade."
The property to be seized was listed on an attached exhibit as:
On October 9, 1980, the date the search was executed, six of the eight objects listed were seized, as were approximately forty other art objects.
Petitioner's allegation can be divided into two categories, those that attack the validity of the search warrant and those that challenge the seizure of articles not listed in the search warrant. We will first discuss the validity of the search warrant.
Petitioner questions the sufficiency of the affidavit supporting the issuance of the search warrant. In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court established a two-prong test for determining whether an affidavit consisting of statements of an informant establishes probable cause for the issuance of a search warrant. The Court stated:
"... the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, ... was `credible' or his information `reliable.'" 378 U.S. at 114, 84 S.Ct. at 1513.
The first prong relates to whether the informant's information in the particular case is accurate. United States v. Schauble, 647 F.2d 113 (No. 79-2022, 10th Cir., April 14, 1981). The information must be detailed so that the magistrate knows that he is relying on "something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969). The second prong goes to the past reliability of the informant. See United States v. Hittle, 575 F.2d 799, 801 (10th Cir. 1978).
After reviewing the affidavit which supported the magistrate's issuance of the search warrant, we find that both prongs of the test have been satisfied. Two unidentified informants and one identified informant supplied personal information concerning the location of the items listed in the search warrant. The identified informant was Marvin Gabb, who told the affiant that he was a professional shoplifter. Gabb further stated that he personally sold stolen merchandise to petitioner on a continuous basis, and that he had observed in petitioner's home that merchandise and other stolen merchandise he had sold to others. (See Affidavit of James K. Weber, October 8, 1980, p. 3.) The second source stated to affiant that she was personally present when Gerrold Stevens, operator of a clothing store, purchased stolen property from Marvin Gabb and other interstate shoplifters, and she knew that petitioner had purchased stolen property from Gerrold Stevens. (See Affidavit of James K. Weber, October 8, 1980, p. 2.) As in Schauble, supra, personal observation and knowledge was the basis of the information provided in the instant case by the identified informant and the second source. While the information of the first source standing alone would not justify the issuance of a search warrant, here it adds to the reliability of the other information. Sufficient underlying circumstances were presented in such detail that the magistrate could determine that the informant had a reasonable basis for his belief. Petitioner has not questioned the reliability of the informant. Our review of the affidavit leads us to conclude that sufficient facts were presented to the magistrate that he could find that the informant was a reliable source. Therefore, we hold that the affidavit was sufficient to support the issuance of the search warrant.
Petitioner has further attacked the search warrant and the search which ensued in two areas. He alleged in his motion that the warrant did not specifically describe the location of the search. However, in his brief, he appears to have abandoned this issue. Evidence presented at the hearing indicated that the search warrant was sufficient in its specificity of the location to be searched.
The search warrant here was directed to "any special agent of the Federal Bureau of Investigation, or other authorized law enforcement officer." The search warrant was served by Edward A. Skelly, Jr., a special agent of the Federal Bureau of Investigation. He was assisted by Special Agent Trammel of the F.B.I., three Kansas City, Missouri police officers, and an F.B.I. photographer. Petitioner, who admits that the F.B.I. agents were present, has objected to the presence of the Kansas City, Missouri Police Officers, who he contends were without jurisdiction. However, these officers were clearly persons aiding a person authorized to execute the search warrant who was present and acting in the execution of the warrant. Therefore, the motion to return the property or to suppress evidence on the basis that the search warrant was invalid will be denied.
Petitioner's remaining arguments challenge the seizure of articles not listed in the search warrant. The "plain view" doctrine justifies the seizure of items not listed in a warrant, but discovered inadvertently during the execution of a valid warrant. The doctrine was discussed in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971):
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