U.S. v. Burke, 85-8515
| Decision Date | 18 March 1986 |
| Docket Number | No. 85-8515,85-8515 |
| Citation | 784 F.2d 1090 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Brenda Faye BURKE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Richard H. Deane, Asst. U.S. Atty., Larry D. Thompson, U.S. Atty., Atlanta, Ga., for plaintiff-appellant.
John O. Ellis, Jr., Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before JOHNSON and HATCHETT, Circuit Judges, and ALAIMO *, Chief District Judge.
The present case requires us to decide whether the search of the apartment of defendant-appellee Brenda Burke was conducted in violation of her rights under the Fourth Amendment.
On July 13, 1984, FBI Agent John Benesh executed an affidavit in support of two search warrants. The affidavit was based on information from a confidential informant who had given reliable information on several occasions in the past. Included in the affidavit was the statement that an envelope containing stolen payroll checks could be found in the apartment of "Brenda," last name unknown, a woman who was a "fence" for local thieves and kept stolen property in her apartment. The affidavit also stated that a woman known as "Kojak" had displayed numerous checks to the informant and had said that she had other papers in her apartment.
The confidential informant told Benesh that Brenda and Kojak both lived in Atlanta, Georgia, at "38 Throop Street, apartment 840," and at "24 Throop Street, apartment 854," respectively. Before submitting the affidavit in support of the search warrant, Benesh accompanied the informant to appellee's apartment complex; the informant pointed out the building and apartment belonging to appellee. Benesh did not observe a building number, but he did observe the number "840" on the apartment door.
In describing the location of appellee's apartment, the affidavit in support of the search warrants stated:
38 Throop Street, is a two-story red brick building, trimmed in a reddish-brown paint with a shingled roof and three adjacent apartments, with apartment 840 being the far left apartment at that address looking at it from the front.
On the strength of the affidavit, a magistrate issued two search warrants. The present case concerns the warrant that was supposed to authorize a search of Brenda Burke's apartment. That warrant authorized a search of the premises located at "38 Throop Street, being a two-story red brick building, trimmed in a reddish-brown paint with a shingled roof and three adjacent apartments, with apartment 840 being the far left apartment at that address looking at it from the front." In fact, Brenda Burke resided in the Carver Homes Housing Project at 48 Troup Street, apartment 840, Atlanta, Georgia.
On July 13, 1984, two search teams comprised of FBI agents and local police officers assembled for the purpose of searching the two apartments for which search warrants had been issued. Agent Benesh was in the team that was to search Kojak's apartment; FBI Agent Michael Smith headed the team assigned to search appellee's apartment. Before going to the apartments, in a meeting of the agents in the parking lot outside Carver Homes, Benesh told Smith that Benesh had previously been to appellee's apartment. As the two teams drove past appellee's apartment building at 48 Troup Street, Benesh advised Smith by radio which building was the one in which appellee lived. During all discussions prior to the search, the agents had referred to "Troup Street," not "Throop Street."
Smith's team searched apartment 840 at 48 Troup Street. In the course of the search, the team found a gun. When asked if the gun belonged to her, Brenda Burke said that it did. Brenda Burke had previously been convicted of a felony. Consequently, on November 6, 1984, appellee was charged in a one-count indictment with unlawful possession of a firearm, in violation of 18 U.S.C.A.App. Sec. 1202(a)(1).
Following her indictment, appellee moved to suppress the firearm, as well as her statement that the gun belonged to her. A magistrate recommended that the motion to suppress be denied. The district court followed this recommendation with respect to the statement; however, the court rejected the recommendation with respect to the firearm and granted the motion to suppress, 613...
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