United States v. Wright

• Decision Date: 28 December 1972
• Docket Number: No. 72-1294.,72-1294.
• Citation: 468 F.2d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert Samuel WRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

468 F.2d 1184 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Albert Samuel WRIGHT, Defendant-Appellant.

No. 72-1294.

United States Court of Appeals, Sixth Circuit.

December 28, 1972.

B. H. Berg, Cincinnati, Ohio, for defendant-appellant; William J. Dammarell, Cincinnati, Ohio, on briefs.

Eugene E. Siler, Jr., U. S. Atty., for plaintiff-appellee; Robert M. Murphy, Asst. U. S. Atty., Lexington, Ky., on brief.

Before WEICK, EDWARDS and KENT, Circuit Judges.

KENT, Circuit Judge.

The appellant was tried with eight other individuals in the United States District Court for the Eastern District of Kentucky. The appellant and the other defendants were charged with conducting an illegal gambling business in violation of 18 U.S.C. § 1955. The appellant raises two issues, first, the legality of the search of the premises where the gambling operation was undeniably located, and, second, whether the District Court erred in denying appellant's motion for disclosure of the undercover agent before trial.

The search warrant issued authorized the search of

"the premises known as The New Plaza Lounge, 725 Monmouth Street, Newport, Kentucky, being a three-story red brick building on the East side of Monmouth Street, with a blue canopy over the front door of the lounge which faces West onto Monmouth Street, in the Eastern District of Kentucky * * *."

The evidence relating to the conduct of the illegal gambling activity seized pursuant to the search warrant was, in fact, found in a one-story cement block building which was attached to the three-story brick building described in the warrant. Two witnesses for the Government testified that in September, 1970, there was a door connecting barroom-restaurant business located in the three-story brick building to what was generally described as the back room. The doorway was closed with plywood before October 21, 1970. The period covered by the indictment is from October 21, 1970 to and including November 27, 1970.

The appellant urges that the search warrant authorizing a search of "the premises known as The New Plaza Lounge, 725 Monmouth Street, Newport, Kentucky, being a three-story red brick building * * *" does not authorize the search of a one-story cement block building attached to the three-story brick building. We recognize that, as stated in Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126, 129 (1960), "It is well settled that search warrants must be strictly construed." However, the burden of establishing that the search was improper and that the evidence secured thereby should be suppressed is clearly on the moving party. As stated by this Court in United States v. Thompson, 409 F.2d 113, 116, 117 (1969):

"Finally, appellant asserts that his case was prejudiced by the fact that on the hearing of his motion to suppress, the District Judge required him to go forward with his proofs. He relies in this contention upon the fact that he filed an affidavit with his motion. The movant, however, has the obligation to present evidence in court (as opposed to by affidavit) designed to convince the court that his motion should be granted. United States v. Okawa, 26 F.R.D. 384 (D.Hawaii 1961); United States v. Warrington, 17 F.R.D. 25 (N.D.Cal.1961). See also Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Fullbright v. United States, 392 F.2d 432 (10th Cir.), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968); United States v. Masterson, 383 F.2d 610 (2d Cir. 1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1147 (1968); Comment, Procedural Problems of a Motion to Suppress Evidence in a Federal Criminal Case, 1 U.S.F.L.Rev. 188 (1966). Once he has presented a prima facie case of illegal search, the government must assume a burden of proof that any search made was lawful. United States v. Burhannon, 388 F.2d 961 (7th Cir. 1968). We believe this burden was carried."

To the same effect is the decision of the Fifth Circuit in Rogers v. United States, 330 F.2d 535, 542 (1964), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186:

"As is true in so many other situations, the burdens of persuasion and of producing evidence in motions for the suppression of evidence have been badly confused. The burden of persuasion is properly and permanently placed upon the shoulders of the moving party. When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case."

In the instant case we have examined almost 1,000 pages of transcript and conclude that, from the probative evidence offered, the trial court was eminently justified in reaching the conclusion that the appellant had not sustained the burden of establishing that the back room of The New Plaza Lounge was in fact not a part of the premises described in the search warrant in question. We are of the opinion that this case is similar to United States v. Evans, 320 F.2d 482 (6th Cir. 1963), where this Court concluded that officers having a search warrant for 1000 Baldwin Street, Detroit, including the basement and attic, were justified in...