Duffy, Senior Circuit Judge, and Cummings and Pell, Circuit Judges.
Appellant Merkle Altom was found guilty in a bench trial of violating 18 U.S.C. § 641*fn1 and was sentenced to serve two years for each of four counts, the terms to run concurrently. He was also fined $1500 and court costs. The district court then suspended the sentences and placed Altom on probation for two years. From the convictions, Altom has taken this appeal.
The first three counts of the indictment charged that on December 1, 1968, Altom received, concealed and retained with intent to convert to his own use three stolen electronic generators, each having a value over $100, which were the property of the United States Government, and that Altom then knew them to have been stolen. The fourth count charged that Altom, on or about March 26, 1969, wilfully and knowingly did steal, purloin and convert to his own use a fourth generator, also Government property and having a value in excess of $100.
On February 3, 1970, as part of an investigation concerning suspected thefts at the federal Naval Avionics Facility in Indianapolis, agents of the Federal Bureau of Investigation interviewed the defendant, who was employed at the Facility as a duty electrician. They asked him if they could search his house within the next few days and he orally consented.
On the morning of February 4, 1970, the F.B.I. agents acquired a list of items which had been reported stolen from the Naval Avionics Facility. Later that day, four F.B.I. agents came to Altom's home and asked Altom to allow them to look for items missing from the Facility. When Altom inquired whether the agents were only going to be searching for the three items (two survival radios and a paint spray gun) he had been questioned about the day before, the agent in charge of the search (John Aziere) replied that he had a list of other items for which he was going to be looking. Agent Aziere then produced a Consent to Search form to be signed. Altom objected to a phrase authorizing the agents to take from his premises "any letters, papers, materials or other property which they may desire." Aziere then scratched out that language and substituted "see back of this form." On the reverse side, he enumerated certain items, including three pieces of TV test equipment (Telemet Company generators),*fn2 which were missing from a console that had been returned to the Naval Avionics Facility by Ellsworth Smith, just before Smith ceased employment at the Facility. Smith was a friend of the defendant and a fellow electronics buff.
The agents searched Altom's basement workshop for several hours, during which time they recorded type, serial numbers, and descriptions of about 40 items. The agents found and seized the three generators that had been listed on the back of the Consent to Search form. Glue and adhesive were observed on the outside of the generators in the shape of calibration control labels, property tags and console part tags. The serial numbers of the generators were missing from their casings.
Altom told the agents that the box containing the generators was one of several boxes placed in his basement by Smith. At trial, the defendant indicated that he did not know from direct observation that Smith had left the box but he assumed that Smith had done so because Smith had a key to Altom's house and allegedly had been going down to the basement workshop without disturbing Altom, to store or check equipment. Smith, however, testified that he had not stored any equipment at the defendant's house. He also said that the only equipment he had lent Altom during their friendship was a radio, a B & K television analyst and a wood jointer.
In the same box containing the three Telemet generators, there was also a fourth generator, a Wavetek. The F.B.I. agents did not seize the Wavetek, but noted its description and replaced it in the box. They did not know at that time that it was stolen property. Later, Naval Avionics Facility officials informed the F.B.I. that the Wavetek generator was Government property stolen from the Facility.
The Wavetek generator, which is the subject of Count IV of the indictment, was calibrated on March 26, 1969, at the Naval Avionics Facility. A couple of months later, it was found to be missing from the Facility. The last time Ellsworth Smith was inside the Facility was in December 1968, when he had been admitted as a guest. The Facility was guarded and property was supposed to be removed only with a property pass. The defendant had access to about 90 percent of the Facility through the use of the duty electrician keys that he carried. The areas to which Altom had access included the areas from which the generators were taken.
On December 10, 1970, the agents returned to Altom's home, arrested Altom on an outstanding arrest warrant, and, pursuant to a newly-acquired search warrant, seized the Wavetek generator.
On this appeal, Altom strongly challenges the reasonableness of the search that ultimately resulted in the seizure of the Wavetek generator, which Count IV of the indictment alleged had been stolen by Altom from the Facility. The defendant is not arguing that his consent to search was invalid. Rather, he contends that the consent was a limited one and that the F.B.I. agents abused that consent by conducting a search far exceeding the agreed limits. Thus, a legitimate search for specific, listed items became, according to Altom, an unconstitutional "all-out no holds barred search." He argues that the results of the search (the Wavetek generator) should be inadmissible because the search violated his fourth amendment rights. The obtaining of a search warrant for the Wavetek was allegedly merely an attempt to give some semblance of reasonableness to the whole transaction.
We must first consider the effect of the wording of the Consent to Search form that Altom signed on February 4. The front of the form reads in part: "I, Merkle C. Altom, . . . hereby authorize . . . [named Special Agents of the F.B.I.] to conduct a complete search of my premises. . . ." However, as previously noted, upon objection by Altom the form was modified.
The form that Altom signed did not in any way limit the scope of the search; it only limited the items that the agents were authorized to take from Altom's premises. In oral argument, appellant's counsel stated that the understanding between Altom and Aziere was that the agents would confine their search to the items listed. Although the agent's testimony at ...