United States v. Estese, 72-2067.
Decision Date | 19 June 1973 |
Docket Number | No. 72-2067.,72-2067. |
Citation | 479 F.2d 1273 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Minot Wayne ESTESE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Terry M. Tranter (Court Appointed), Cincinnati, Ohio, for defendant-appellant.
Byron E. Trapp, Asst. U. S. Atty., for plaintiff-appellee; William W. Milligan, U. S. Atty., Anthony W. Nyktas, Asst. U. S. Atty., Cincinnati, Ohio, on brief.
Before WEICK and EDWARDS, Circuit Judges, and PRATT,* District Judge.
Appellant appeals from his conviction before the United States District Court for the Southern District of Ohio on the charge of possession of an illegal firearm (a sawed-off shotgun), in violation of 26 U.S.C. § 5861(b) (1970). He was tried to the court without a jury and sentenced to a term of one year on probation.
Appellant's appeal is directed solely at the denial by the District Judge of appellant's motion to suppress evidence, i. e., the sawed-off shotgun. This motion was heard and decided before the trial itself.
Relevant facts include these: Local police responded to a radio call reporting a breaking and entering at appellant's apartment. They found the door open and observed evidence that it had been pried open. Appellant was not at home at the time. After police reinforcements arrived, the officers entered the apartment and searched for the burglar. They found a cereal bowl full of marijuana in plain view on the table, and on looking under a water bed, where a burglar could have been hiding, they found a broken-down sawed-off shotgun emplaced in the holes of the concrete block supports employed for the bed.
The police then left the shotgun in place and left one of their members guarding the building while others sought an arrest warrant for appellant. They also summoned federal officers to the scene to look at the weapon.
When appellant returned to his apartment, he was arrested and the sawed-off shotgun was removed. After Miranda warnings, appellant admitted ownership of the gun.
On these facts appellant contends that the warrantless seizure of the gun required the District Judge to suppress evidence, including the gun and the statements of an inculpatory nature made by appellant.
The District Judge's rationale in denying the motion to suppress is set forth in the record on said motion as follows:
Clearly in this case the basic invasion of appellant's privacy had...
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