United States v. Olt
Decision Date | 28 February 1974 |
Docket Number | No. 73-1995.,73-1995. |
Citation | 492 F.2d 910 |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. Norman OLT, Defendant-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Arthur B. Lara, Jr., Dept. of Justice, Washington, D. C., for appellant; William W. Milligan, U. S. Atty., Anthony W. Nyktas, Asst. U. S. Atty., Cincinnati, Ohio, on brief.
Anthony Valen, Middletown, Ohio, on brief for appellee.
Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and ROSENSTEIN,* Senior Customs Judge.
ROSENSTEIN, Senior Customs Judge.
The issue presented herein is whether the information contained in an affidavit established probable cause for issuance of a search warrant. The lower court found the affidavit insufficient and sustained appellee's motion to suppress. We reverse.
A copy of the affidavit is attached hereto as an appendix. Based on the information contained therein, a magistrate of the Butler County, Ohio, Common Pleas Court issued a warrant providing for the search of:
"The residence at 4103 Harris Road, . . . and the adjacent and attached apartment residence at 4105 Harris Road, both apartments comprising the entire building."
Execution of the warrant by federal and state law enforcement officers resulted in the seizure of 36,650 tablets of barbiturates and phenobarbital at appellee's residence at 4105 Harris Road, Oxford, Ohio. Appellee was subsequently indicted by a Federal Grand Jury charging violation of 21 U.S.C. § 841(a) (1).
Thereafter, he moved the lower court to suppress the seized illegal drugs on the grounds, (1) that the affidavit failed to establish probable cause for the issuance of the search warrant, and (2) that the affidavit lacked specification as to time. In sustaining appellee's argument relating to probable cause, the lower court, in the Order appealed from, stated that:
Appellee's second argument relating to specification of time was overruled.
The following principles are applicable to a warrant directing the search of two or more dwellings:
United States v. Hinton, 219 F.2d 324, 325-326 (7th Cir. 1955); United States v. Higgins, 428 F.2d 232, 235 (7th Cir. 1970).
To determine if the affidavit established probable cause for the search of 4105 Harris Road, the guidelines announced in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), must be applied:
380 U.S. at 108, 85 S.Ct. at 746; United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1970).
While Harker's reference in the affidavit to the fact that the marijuana was located at his "neighbors" may be lacking in specificity, it is capable of being interpreted in such a fashion to mean that the marijuana was located at both of his neighbors. Moreover, when this allegation is construed in a non-negative non-grudging sense together with the remaining facts in the affidavit indicating a strong connection between all of the residents involved, it appears that the magistrate was not acting arbitrarily or unreasonably in issuing the warrant providing for the search of 4103 and 4105 Harris Road, see Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973).
In keeping with the teachings of Ventresca, Harris and Bastida, we find that too narrow a construction was given the affidavit by the lower court. According...
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