U.S. v. Cutts

• Decision Date: 09 June 1976
• Docket Number: No. 76-1129,76-1129
• Citation: 535 F.2d 1083
• Parties: UNITED STATES of America, Appellee, v. Stanley Zane CUTTS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1083

535 F.2d 1083

UNITED STATES of America, Appellee, v. Stanley Zane CUTTS, Appellant.

No. 76-1129.

United States Court of Appeals,

Eighth Circuit.

Submitted May 28, 1976.

Decided June 9, 1976.

Jack S. Nordby, St. Paul, Minn., for appellant.

Robert G. Renner, U. S. Atty., and Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before LAY, STEPHENSON and WEBSTER, Circuit Judges.

PER CURIAM.

Stanley Zane Cutts appeals from his conviction for unlawful receipt of a firearm by a convicted felon, in violation of 18 U.S.C. App. § 1202(a)(1).

On August 24, 1974, a Minnesota law enforcement officer obtained a warrant to search for cocaine at the residence of the defendant in Plymouth, Minnesota. The search led to discovery of controlled substances, as well as a .9 mm semi-automatic pistol, which led to the instant federal firearms prosecution. ¹

The conviction was secured upon agreed facts, with defendant contesting only the lawfulness of the search and seizure. Defendant challenges the search on this appeal, arguing: (1) that the affidavit supporting the search warrant failed to show probable cause to believe that narcotics were present on the premises; and (2) that the seizure of the pistol was unlawful because the officer securing the warrant knew of the existence of the weapon but did not request its inclusion as one of the items to be seized. We affirm the conviction.

Defendant complains that the crucial allegation in the affidavit, that the affiant had observed "powder represented to be cocaine," is "cryptic and indirect." Defendant argues that the affidavit does not state who was present when the "white powder" was observed, nor who had possession of the powder, nor who represented it to be cocaine, and that the affidavit thus fails to show probable cause to believe that narcotics would subsequently be found at the premises.

We are not persuaded by this argument. Affidavits for search warrants

. . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.

. . . Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

See also United States v. Koonce, 485 F.2d 374, 380 (8th Cir. 1973); United States v. Bridges, 419 F.2d 963 (8th Cir. 1969). In the instant case, the affidavit stated that cocaine had been viewed on the premises of 12410 Highway 55, that the defendant and a woman named Susan (in addition to the informant) were present on the premises, and that both the defendant and Susan resided at the above address. No mention is made of any other persons, nor is it reasonable to view the informant as the possessor of the powder or the one representing it to be cocaine. Thus, under a commonsense reading of the affidavit, a magistrate could properly conclude that a controlled substance was in the possession of the residents of 12410 Highway 55 and would be found there upon a subsequent search. See...