U.S. v. David

• Decision Date: 25 October 1996
• Docket Number: Criminal No. 3:94cr39.
• Citation: 943 F.Supp. 1403
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Karl V. DAVID.

943 F.Supp. 1403

UNITED STATES of America, v. Karl V. DAVID.

Criminal No. 3:94cr39.

United States District Court, E.D. Virginia, Richmond Division.

October 25, 1996.

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George Metcalf, Office of the United States Attorney, Richmond, VA, for Plaintiff.

Michael Morchower, Lee W. Kilduff, Morchower, Luxton & Whaley, Richmond, VA, for Defendant.

MEMORANDUM OPINION

PAYNE, District Judge.

Karl V. David has been charged, inter alia, with the unlawful receipt of four firearms in violation of 18 U.S.C. § 922(n).¹ David has moved to suppress the admission of firearms which were seized during a search of his home and office conducted on May 5, 1994, pursuant to a search warrant issued on May 4, 1994. David argues that the search warrant was procured by virtue of information obtained in an unlawful search which preceded issuance of the warrant. Specifically, David contends that a package sent to him from Bob's Gun Shop in Norfolk, Virginia via United Parcel Service ("UPS") was illegally opened and that this allegedly illegal search was conducted by UPS employees acting as agents of the government, particularly the Bureau of Alcohol, Tobacco, and Firearms. David claims that the illegal discovery of a firearm in the package opened by UPS was used as a basis for establishing probable cause to obtain the search warrant under which the firearms at issue were seized.

David's motion to suppress is denied for the following reasons. First, David has failed to carry his burden to prove that the opening of the package was governmental. Second, assuming, arguendo, that the opening was governmental and thus unconstitutional, the subsequent investigation of David, including a controlled delivery and the securing of the search warrant, was not prompted by, and was wholly unconnected to, the discovery of the firearm in the allegedly unlawful search. Consequently, based upon those portions of the search warrant affidavit unrelated to the illegal discovery, the affidavit provided sufficient probable cause to support the issuance of the search warrant. Finally, the seizure of the challenged firearms was not tainted by the alleged antecedent illegal search because the seizure was based on information from an independent source and would otherwise have been inevitably discovered by lawful means.

STATEMENT OF FACTS

David owns Karl's Gun Shop, a federally licensed firearms dealership in Milford, Virginia. On April 19 1994, Kenneth G. Mosely, Jr., Special Agent, Bureau of Alcohol, Tobacco and Firearms, ("ATF"), learned that on October 6, 1993, David had been indicted by a state court grand jury and charged with a felony, punishable by up to twenty years imprisonment.² At the same time, Mosely learned that David had been arraigned on October 27, 1993 and informed of the indictment against him. (Mosely Aff. at 1-2). Also on April 19, Mosely discovered that on March 23, 1994, David had submitted to ATF an ATF Form 8, ("Renewal of Firearms License") in an effort to secure renewal of his Federal Firearms License number which was due to expire on April 1, 1994. Id. at 2-3.

Mosely then obtained a copy of the ATF Form 8, which was dated March 23, 1994, five months after David's indictment. The form signed by David contained the statement that David was not presently under indictment for a crime punishable by more than a year. Id. at 3. Based upon this knowledge, Mosely secured permission from his ATF superiors to investigate David for possible violations of federal firearms statutes.

Some time between April 19 and either April 21 or 22, Virginia State Police Special Agent Taylor V. Blanton, who was then on special assignment to ATF, communicated with Robert Martinson, an employee of the loss prevention department of UPS in Richmond. (Blanton Deposition at 36; Mosely Aff. at 4; testimony). Blanton told Martinson that Mosely "had a federal investigation involving a federal firearms dealer that involved receiving firearms after being under indictment for a felony, and that I [Blanton] was told that was a federal violation and we needed to monitor to see, if any, what kind of shipments he got." (Blanton Dep. at 37). Martinson agreed to inform Blanton if UPS received any packages for the address. Id. at 37. At the suppression hearing, there was conflicting evidence respecting whether Blanton asked Martinson to hold packages or to simply notify him about the shipments.

On April 21 or 22, 1994,³ Martinson telephoned Blanton and reported that the UPS office in Fredericksburg had received two packages addressed to Karl's Gun Shop. (Blanton Dep. at 37-38; Mosely Aff. at 3). Here the testimony conflicts. According to Blanton, Martinson set up a conference call among Blanton, Kenneth Tickle, Manager of the UPS Fredericksburg branch, and Martinson. (Blanton Dep. at 38). According to Martinson and Tickle, however, there was no conference call. Instead, under their recollection, Martinson made one call to Tickle and another to Blanton on different telephones located in the same room about ten feet apart from each other. Martinson relayed information back and forth between the two parties. However, it is uncontested that, during the call, Tickle stated that UPS was in possession of two packages destined for Karl's Gun Shop: one from Bob's Gun Shop in Norfolk and one from T.S. Goldenberg in North Carolina. (Blanton Dep. at 38). There also is dispute, however, about the ensuing events. According to Blanton and Tickle, Martinson asked Tickle if any of the packages could be opened to which Tickle replied that he could open the package from Bob's but not the other one. According to Blanton and Tickle, Martinson told Tickle to open the package, asking what it contained. Martinson denies asking Tickle to open the package, claiming instead that he only asked Tickle whether he could determine what the packages contained, meaning that Tickle should look at the labels or invoices.

The record thereafter is not disputed. Either on Martinson's request or on his own initiative, Tickle opened the package from Bob's Gun Shop and reported that the package contained a .38 caliber revolver and provided the serial number. Under either scenario, Blanton was privy to exchanges between Martinson and Tickle, whatever they were, and Blanton learned then that the package from Bob's Gun Shop contained a firearm. Blanton and Martinson testified that Blanton never asked UPS to open the package.⁴ Tickle did not suggest otherwise.

After Blanton's conversation with Martinson, he made arrangements to travel to Fredericksburg the next day with equipment and a technician for the purpose of x-raying both packages. Although UPS agreed to hold the packages for that purpose, when Blanton arrived, he was informed that the packages had been delivered to David. (Blanton Dep. at 39-40).

On April 26, 1994 at 9:00 a.m., Martinson informed Blanton that UPS possessed two new packages bound for Karl's Gun Shop, one from SOG, International ("Southern Ohio Gun") and the other from Brownell's, Inc. in Iowa. (Mosely Aff. at 4). When contacted by the agents, Southern Ohio Gun reported that the package bound for Karl's Gun Shop contained one Russian, Makarov, model PM, 9 × 18 caliber pistol, serial number 0080. Brownell's Inc. reported that the package it had shipped contained gunsmithing supplies and equipment.

Mosely was given permission by his ATF supervisor and the United States Attorney to make a controlled delivery of the packages to David. (Blanton Dep. at 42). On April 26, 1994, at about 11:30 a.m., Mosely met with Joseph V. Lang, UPS District Loss Prevention Manager. Lang agreed to let Mosely pose as a UPS delivery person and deliver the packages from Southern Ohio Gun and Brownell's, Inc. to Karl's Gun Shop. At approximately 2:40 p.m. on April 26, Mosely and Martinson arrived at Karl's Gun Shop where they were greeted by an unknown male. Another male, approximately forty to forty-five years of age asked how much the total cash delivery amount was required on the two packages and returned with the money in hand. Mosely placed the packages within six inches of the door, accepted the money, and asked the recipient for a signature to confirm receipt. The individual signed "K.V. David" and upon request, verbally confirmed his signature.

On May 2, 1994, Mosely learned from Southern Ohio Gun's bookkeeper that the following firearms were ordered by Karl's Gun Shop and shipped by UPS on the following dates: an M-1 Garand ordered 11/1/93 and shipped 11/2/93; an M-1 Carbine ordered 11/5/93 and shipped 11/5/93; an Enfield # 1, MK 3, ordered 11/8/93 and shipped 11/15/93; a Star, Firestar, ordered 1/19/94 and shipped 1/25/94; a Russian SKS ordered 2/17/94 and shipped 2/23/94; a Russian SKS, Paratrooper, ordered 2/25/94 and shipped 2/28/94; a Russian SKS ordered 2/25/94 and shipped 2/28/94; a Russian SKS ordered 3/18/94 and shipped 3/18/94; and a Russian Makarov, ordered 4/20/94 and shipped 4/22/94. (Mosely Aff. at 7-8).

On the basis of the foregoing information, Mosely applied for, and received, a warrant to search Karl's Gun Shop and to seize certain weapons. The weapons seized during that search are the subject of David's motion to suppress.

DAVID HAS FAILED TO PROVE THAT OPENING THE PACKAGE FROM BOB'S GUN SHOP CONSTITUTED A GOVERNMENTAL SEARCH

A. Rule of Law

The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..." Const.Amend. IV. "A `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (citations omitted). "Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such...