United States v. Carney

• Decision Date: 12 April 1973
• Docket Number: Crim. No. 15141.
• Citation: 356 F. Supp. 855
• Parties: UNITED STATES of America v. David Kenneth CARNEY.
• Court: U.S. District Court — Middle District of Tennessee

356 F. Supp. 855

UNITED STATES of America v. David Kenneth CARNEY.

Crim. No. 15141.

United States District Court, M. D. Tennessee, Nashville Division.

April 12, 1973.

Charles H. Anderson, U. S. Atty., and Joe B. Brown, Asst. U. S. Atty., Nashville, Tenn., for plaintiff.

Lionel R. Barrett, Jr., Nashville, Tenn., for defendant.

ORDER

FRANK GRAY, Jr., Chief Judge.

In the early afternoon of December 21, 1972, an officer of the Metropolitan Police Department of Nashville, Tennessee, learned from an informant that David Kenneth Carney, the defendant herein, was in possession of certain drugs and a silencer for a rifle. Because of the information concerning the silencer, the officer immediately notified agents of the Alcohol, Tobacco and Firearms Division (ATF) of the Internal Revenue Service, and a meeting was then arranged. Present at that meeting were the informant, Nashville police officers, and ATF agents. Following the meeting, the officers decided, based on the information furnished by the informant, to search the defendant's premises on South Hamilton Road in Davidson County, Tennessee. That same afternoon, consequently, the Metropolitan Police officers went before a State judge to obtain a warrant to search the defendant's premises. The ATF agents, however, did not attempt to obtain a warrant to search for the silencer and were content to return to their offices and wait for the Metropolitan Police officers to get their warrant.

The warrant to search the defendant's house was issued on December 21, 1972, at approximately 5:05 p. m. and was based on the informant's tip that the defendant was in possession of "marijuana and legend drugs." There was no mention either in the warrant or in the supporting affidavit of a silencer. The warrant itself was preprinted and purported to authorize the search for and seizure of virtually every drug that is a controlled or prohibited substance in the State of Tennessee, as well as a wide range of drug paraphernalia.

After the warrant was obtained, three Metropolitan Police officers and two ATF agents met at a prearranged time and place and, from there, proceeded to the defendant's house. Upon entry, the ATF agents commenced their search for the silencer, and the police officers started searching for drugs. The police found some marijuana, and the agents found the silencer which became the basis for the case now before the court.

The defendant was indicted for the offense of possessing an unregistered silencer, in violation of 26 U.S.C. § 5861 (d). In advance of trial, the defendant filed a motion to suppress the introduction of the silencer as evidence on the ground that the affidavit in support of the search warrant was legally insufficient and that the search had exceeded the scope of the warrant. A hearing was held on this motion before trial and the court took the motion under advisement, being under the impression that only a question of law was at issue, and the case came on to be tried before the court, sitting without a jury. During the course of the trial, however, the facts set forth in the opening paragraph of this order, which facts were hitherto unknown to the defendant and the court, came to light. Consequently, the court took the case under advisement after hearing all of the proof offered in the case and invited the attorneys to submit briefs on the question of whether the search in this case violated the Fourth Amendment rights of the defendant.

Thus, the court is presented with the novel situation in which federal officers, who have probable cause and a reasonable opportunity to obtain a search warrant, proceed, without a warrant, to search the dwelling place of another for a silencer, that search being contemporaneous with a search of the same house by state officers who were searching for contraband drugs under the authority of a state search warrant. The issue is whether such a search is violative of the Fourth Amendment.

The Government contends that the search in question was lawful, that it was justified under the "plain view" doctrine or under the theory that there was no invasion of the defendant's right of privacy because those rights were already lawfully invaded by the state officers who had a warrant. For the reasons which follow, the court rejects those theories advanced by the Government to justify the search, and holds that the federal agents' search of the defendant's home violated his constitutional rights under the Fourth Amendment.

First, a proper characterization of the facts at bar demonstrates that, instead of there being one search of the defendant's house in which both state and federal officers participated, there were in fact two searches of his premises, one search by state officers for drugs and another search by ATF agents for a silencer. These searches were conducted simultaneously; the former was conducted pursuant to a valid warrant, but the latter was a warrantless...