U.S. v. Oakes, 76-1438

Citation564 F.2d 384
Decision Date25 October 1977
Docket NumberNo. 76-1438,76-1438
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ted E. OAKES, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

David J. Phillips, Asst. Federal Public Defender, Kansas City, Kan. (Leonard D. Munker, Federal Public Defender, Kansas City, Kan., on the brief) for defendant-appellant.

Richard L. Hathaway, Asst. U. S. Atty., Kansas City, Kan. (E. Edward Johnson, U. S. Atty., Topeka, Kan., on the brief) for plaintiff-appellee.

Before LEWIS, Chief Judge, and BREITENSTEIN and DOYLE, Circuit Judges.

LEWIS, Chief Judge.

Appellant was convicted in the district court for the District of Kansas of knowingly possessing an unregistered machine gun in violation of 26 U.S.C. § 5861(d). The gun was purchased from appellant by an undercover agent for the Alcohol, Tobacco, and Firearms section of the United States Treasury Department. The agent posed as a firearms dealer who was supplying weapons to domestic political groups. Appellant met with the agent, usually at appellant's home, on numerous occasions, the two often spending hours discussing guns and politics. There is no question that the undercover agent was in the home by invitation and with appellant's consent.

The government agent purchased firearms from appellant on seven different occasions. One of these purchases involved the gun in question. The gun had at one time been in the possession of the Kansas City, Kansas police, having been given to them by appellant's wife after a marital dispute. When the gun was returned to appellant by the police the barrel was welded shut. At the time of the purchase by the government agent, however, the barrel had been cleared and the gun could have been made operable with relatively minor repairs.

On appeal Oakes asserts four grounds which allegedly require the reversal of his conviction. Two of these grounds involve constitutional issues.

I.

Appellant argues that the agent's presence in his home for the purpose of gathering evidence of illegal possession of firearms was an unlawful search and seizure in violation of the fourth amendment. Appellant clearly has an arguable fourth amendment claim since the agent entered his home seeking to obtain evidence. The fact that there was no physical search of the house, in the sense of opening closets and drawers, or seizure of tangible evidence, is not determinative. The Supreme Court has made clear that the protections of the fourth amendment can be violated by guile as well as by force. See Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374.

The flaw in appellant's argument lies in the fact that the agent entered the house by invitation and took away nothing that was not voluntarily given or sold by appellant. The Supreme Court has addressed a virtually identical fact situation in Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312. That case involved an undercover narcotics agent who was invited into the defendant's house for the purpose of buying marihuana. The Court held that the subsequent introduction of the marihuana at trial was proper because the seizure of the drug did not violate the fourth amendment. Adopting the government's language, the Court stated that the case " 'presents no question of the invasion of the privacy of a dwelling; the only statements repeated were those that were willingly made to the agent and the only things taken were the packets of marihuana voluntarily transferred to him.' " 385 U.S. at 212, 87 S.Ct. at 428.

Defendant attempts to avoid the force of Lewis by distinguishing its facts. He argues that while in Lewis the agent was specifically invited into the home for an illegal purpose, that is, the purchase of marihuana, in this case the agent came only to investigate and no firearms changed hands until the third visit. We do not believe that the purpose of either the defendant in extending the invitation, or the agent in accepting it is the critical factor. The fact is that the agent entered only at defendant's invitation and removed only that which was freely offered. "What a person knowingly exposes to the public even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, citing Lewis v. United States, supra. We hold that the agent's actions here did not violate defendant's fourth amendment rights. See United States v. Ressler, 7 Cir., 536 F.2d 208, 211; United States v. Raines, 8 Cir., 536 F.2d 796, 799-800, cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293.

II.

The second constitutional argument that appellant advances is that the prosecution here violated his right to bear arms guaranteed by the second amendment. 1 Defendant presents a long historical analysis of the amendment's background and purpose from which he concludes that every citizen has the absolute right to keep arms. This broad conclusion has long been rejected. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206. However, as in his search and seizure argument, appellant attempts to avoid the seemingly dispositive nature of the case law by arguing a factual distinction. He contends that, even if the second amendment is construed to guarantee the right to bear arms only to an organized militia, he comes within the scope of the amendment. He points out that under Kans.Const. art. VIII, § 1, the state militia includes all "able-bodied male citizens between the ages of twenty-one and forty-five years . . . ." He further points out that he is a member of "Posse Comitatus, a militia-type organization registered with the state of Kansas."

The purpose of the second amendment as stated by the Supreme Court in United States v. Miller, supra at 178, 59 S.Ct. 816, was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view. Id. To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant's membership in "Posse Comitatus," an apparently nongovernmental organization. We conclude, therefore, that this prosecution did not violate the ...

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