United States v. Bowling, 16226.
Decision Date | 29 September 1965 |
Docket Number | No. 16226.,16226. |
Citation | 351 F.2d 236 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Parnell BOWLING, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Charles J. Schear, Newport, Ky. (Morris Weintraub, Newport, Ky., on the brief), for appellant.
James F. Cook, Asst. U. S. Atty., Lexington, Ky., (George I. Cline, U. S. Atty., Lexington, Ky., on the brief), for appellee.
Before CECIL,* PHILLIPS and EDWARDS, Circuit Judges.
The Fourth Amendment prohibits "unreasonable searches and seizures." It also specifically allows for searches and seizures upon "probable cause" and the issuance of a judicial warrant. In such cases as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961); Aquilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), the Supreme Court of the United States has spelled out its desire to encourage the use of search warrants wherever it was reasonably possible for the police to procure one.
The Supreme Court has also made clear that highly technical attacks upon affidavits and warrants where sought and used are not to be encouraged.
United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 746.
Herein, with ample reason to believe that defendant was operating as a fence for stolen business machines, the police officer concerned went to two courts to procure three different search warrants in order to search — more or less simultaneously — the three logical storage places which they knew defendant to possess. In two of the places searched, the searchers drew blanks. In the third, defendant's home, the searchers discovered a basement full of stolen property — including the business machines herein concerned.
Two of these machines had been stolen from agencies of the United States government. Their recovery resulted in the instant indictment under which defendant was charged with unlawfully and willfully receiving and concealing property of the United States, with intent to convert it to his own use in violation of Title 18 U.S.C. § 641.
Defendant was tried by a jury. A motion to suppress evidence was made and denied. Defendant was found guilty and sentenced to one year and one day on each count, with the sentences to run concurrently.
The sole issue on this appeal pertains to the District Judge's denial of the motion to suppress evidence. That motion was filed before trial and was the subject of extensive evidence before the District Judge. It was lengthy and technical and was amended on the day of hearing. The issues as presented to the District Judge may be summarized as follows:
The facts as developed at hearing present an interesting story. A Cincinnati Police Department detective, Lt. Scully, having been told of theft of an IBM typewriter on which a "ball" was missing, advised the IBM "people," "in the event anybody orders this particular ball, have one of your salesmen check the item and get the serial number off of it, because it might be one of the stolen pieces of equipment."
Subsequently, a businessman in Fort Thomas, Kentucky, did order a "ball" and the IBM people did notify Lt. Scully, and on checking the serial numbers of this machine, he ascertained that it was the one previously reported stolen. Asked where he got the stolen machine, the Fort Thomas businessman reported he got it from a W. A. Hennard of Newport, Kentucky.
The story continues from the transcript:
Actually Lt. Scully proceeded to procure three search warrants — one for the Bowling drug store, one for the building into which the drug store was about to move, and one for Bowling's home. The affidavit and the warrant issued for the home recited as follows:
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