United States v. Dye

• Decision Date: 03 September 1969
• Docket Number: Crim. No. 69-62.
• Citation: 303 F. Supp. 504
• Parties: UNITED STATES of America, Plaintiff, v. Charles E. DYE, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

303 F. Supp. 504

UNITED STATES of America, Plaintiff, v. Charles E. DYE, Defendant.

Crim. No. 69-62.

United States District Court W. D. Oklahoma.

September 3, 1969.

John E. Green, Asst. U. S. Atty., Oklahoma City, Okl., for plaintiff.

Mac Oyler, Oklahoma City, Okl., for defendant.

ORDER

DAUGHERTY, District Judge.

The Court has under consideration Defendant's Motion to Suppress as evidence the .410 gauge sawed-off shotgun which is the weapon described in the Indictment herein. An evidentiary hearing was conducted on the Motion. Arguments have been heard and briefs have been submitted.

Defendant contends that (1) the Affidavit for Search Warrant is insufficient and does not conform to the "Spinelli" test, (2) the weapon was seized without knowledge that the required making tax therefor had not been paid and there was a failure to file a written application to make and register the weapon and, (3) the entry and search of Defendant's house during which the weapon was observed was illegal and, therefore, its subsequent seizure even with a Search Warrant was tainted and illegal. The Plaintiff opposes each contention and asserts that (1) the Affidavit for Search Warrant is sufficient, (2) the weapon is an illegal firearm by law and may be seized when observed without knowledge regarding the non-payment of tax and no application to make and register, and, (3) the officer observing the weapon in Defendant's house was legally in the house at the time of observing same and the subsequent seizure by a Search Warrant was not tainted and illegal.

The evidence shows that on the day in question a burglary and attempted robbery of a super market had been reported to the Oklahoma City Police. The burglars and robbers left the store in a car. The car was found abandoned about one block from the Defendant's house. In it was a wig seen at the store in the possession of the burglars and robbers. Near the car a cowboy hat was found resembling one observed being worn by one of the burglars and robbers. The car was immediately found to have been reported stolen the previous day. It had rained and there were muddy tracks leading from the car to the hat and to the front door of Defendant's house. A K-9 dog also followed the trail from the car to the hat to the Defendant's front door. No one responded to a knock on the door of the house. Inquiry revealed the house to be occupied by a lady and some young children. In point of time the following of the trail from the store to the abandoned car to the hat to the Defendant's house was very soon after the burglary and attempted robbery. An officer of the Oklahoma City Police Department then entered the house through a window in an effort to apprehend and arrest the two men he had probable cause to believe were then in the house and who had only shortly before committed the burglary and attempted robbery of the grocery store. In searching the house for the two men, the officer found the .410 gauge sawed-off shotgun in looking under a bed for the men. The weapon was under the mattress. Upon observing the weapon and that it was a sawed-off shotgun with a very short barrel, the officer reported the same to Sgt. Maxwell of the Oklahoma City Police Department who obtained a Federal Search Warrant and with others executed the same seizing the firearms in the process thereof.

As to the Affidavit for Search Warrant, it described the premises and the property to be seized as an illegal firearm made from a shotgun in violation of the National Firearms Act and further stated:

"And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

That on April 17, 1969 I received reliable information, which I believe, from a confidential informant who has in the past furnished reliable information that an illegal

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