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July 17, 1972


The opinion of the court was delivered by: Poos, Chief Judge.


This cause comes before the Court on the Motions of the Defendant, Harold L. Davis, for the Return of Property and to Suppress Evidence.

On July 24, 1971 at approximately 10:00 A.M., four agents of the Department of Treasury, Alcohol, Tobacco & Firearms Division went to the home of the Defendant at 519 East Highpoint Road, Peoria, Illinois, with warrants to arrest the Defendant and to search the Defendant's premises. There is a conflict of testimony as to the execution of the search warrant.

Marjorie Eckhoff testified on behalf of the defense and stated that she is a college student and was cleaning house for the Defendant on the date of the search. She testified that while placing dishes into a dishwasher she noticed unfamiliar cars in Defendant's driveway with no one in them. She became concerned and walked to the entrance way which faces the front of the house adjacent to the kitchen window, and saw an Alcohol, Tobacco & Firearms agent (hereinafter "ATF agent") with the door open coming into the house. Once he was in the house the ATF agent identified himself and explained his presence. She further testified that there are two doors in the front entrance of Defendant's residence: one large wooden door, and one glass storm door. The large wooden door was opened, and the storm door had been closed prior to the ATF agent's entrance. She testified that there was no radio playing or any other distracting noise which would prevent her from hearing any knock on the door. After the ATF agent explained his purpose, Miss Eckhoff pointed out that the Defendant was not at home and summoned Defendant's son. He, in turn, called the Defendant on the telephone and Mr. Dytrych, the first ATF agent into the house, spoke to the Defendant. In the meantime, three additional ATF agents entered the house and the Defendant's son asked them to come into the living room and wait for the Defendant to arrive.

ATF agent, Joseph Slater, testified that he took part in the search with agents Donnley, Herbert and Dytrych. Slater and Dytrych went to the front door and Dytrych rang the doorbell. There was no response so Dytrych knocked on the door and Miss Eckhoff answered. The agents had their badges on the outside of their coats, and identified themselves while standing on the front steps as Miss Eckhoff held the door open.

Slater testified that there was only one door in the front entrance of defendant's residence. He described this door as being a heavy wooden door with glass panels and that the door was closed. Notwithstanding his testimony concerning the door and the entry of the agents, his testimony is substantiated by Miss Eckhoff and the three other ATF agents. That is, that he and agent Dytrych came into the house as Miss Eckhoff summoned Mike Davis. Dytrych spoke to the Defendant on the telephone and all four ATF agents waited for the Defendant to arrive in the Defendant's living room. On cross-examination agent Slater wasn't positive that Dytrych rang a doorbell, but Dytrych did use a knocker which was in the middle of the door about head high. Slater testified that there were double doors, i.e., two doors that meet each other in the same opening. Slater later changed his testimony and said that Dytrych knocked with his hand — not a knocker. He specifically pointed out that the door did not have a single large square glass panel, but he did describe the door as having frosted glass panels throughout, and that you could not see through these glass panels.

Agent Peter Donnley was also at the scene on July 24, 1971. He was stationed at the far corner of Defendant's house approximately fifty feet from the front door. He testified that the front heavy wooden door was closed, that Dytrych knocked on the door, that a young girl answered and Dytrych and Slater walked into the house. Donnley later entered the house when Dytrych was on the telephone. Donnley then took pictures of the entrance to Defendant's house which were marked Government Exhibits 1 and 2. After examining these Exhibits Donnley described the front entrance way to Defendant's home. He stated that his testimony was not based on the Exhibits, but rather on what he saw on July 24, 1971. He described the door as a large wooden door with a wooden cross-beam with four window panels of glass. He stated that there was no storm door and that Dytrych rapped on the glass, not the wood.

Agent Peter Dytrych testified that he, along with Slater, went up to the front door which he described as a heavy wooden door, with some type of crossbeam. There was no storm door and Exhibits 1 and 2 accurately depicts Defendant's front door. He knocked on the wooden panel and then on the glass before the girl answered.

On cross-examination Dytrych stated that he examined Exhibits 1 and 2 before the hearing, and that his testimony is based on these pictures. He further stated that the door had a mullion on it with four panes of glass.

Agent Victor Herbert also took part in the search but did not recall anything concerning Defendant's front door. He did state however that while in Defendant's living room he noticed that one side of the living room is glass overlooking the Illinois River.

The Defendant, on rebuttal, testified that he lived at this address for eight years. He described his front entrance way as having two doors. The inner door was a large solid oak door with a small window approximately seven feet above the ground floor. The outer door was a storm door with one large pane of glass. The Defendant examined Exhibit 1 and described the picture. The large wooden door is open and out of the picture. The storm door is closed and the picture portrays a view looking through the glass storm door and through to the back side of Defendant's house. The cross-beams shown in the picture, the Defendant stated, was not part of the door but rather a part of the back glass wall of his home.

Miss Eckhoff again testified and described Exhibit 1 as the large wooden door being open and the storm glass door being closed. She identified the cross-beams as being on the rear window which is the living room directly behind the front entrance of Defendant's residence.

The remaining testimony points out that after waiting approximately forty-five minutes in the living room, the defendant, his attorney and father-in-law arrived and the ATF agents then conducted their search and seized numerous guns in addition to books, records and documents pertaining to firearm transactions. On July 26, 1971 agent Herbert, along with an Assistant United States Attorney, went to Magistrate Ghiglieri of the Northern Division of the Southern District of Illinois, and presented an affidavit in order to obtain a search warrant for another search of the Defendant's home. Agent Herbert did not swear to the affidavit however Magistrate Ghiglieri dated the affidavit, indicated that it was denied, and signed the affidavit. A record of this action was filed with the Clerk of this Court on August 11, 1971. On July 27, 1971, Agent Herbert, along with the United States Attorney, went to Magistrate Giffin in the Southern Division of the Southern District of Illinois with the same affidavit which had been presented to Magistrate Ghiglieri. Although there is no testimony dealing with this aspect, the United States Attorney did point out that Magistrate Giffin was apprised of the entire proceedings on July 24, 1971 at the residence of the Defendant and of the proceedings before Magistrate Ghiglieri on July 26, 1971. Magistrate Giffin then issued a warrant for a further search of the Defendant's premises and approximately ninety additional guns were taken from the Defendant's premises.

The first question to determine is under what authority the Government is acting in seizing the Defendant's books, records and guns. Defendant argues that the Government must establish its right to search and seize under the authority by which it is acting. The Government chose to proceed by means of a search warrant and it must be bound by the procedure enunciated in Rule 41 of the Federal Rules of Criminal Procedure. The Government argues that the Defendant was afforded an additional protection since the Government proceeded by means of a search warrant. The Government argues that it could have inspected the Defendant's business premises during business hours as part of the inspection procedure authorized by Section 923(g) of the Gun Control Act of 1968 without obtaining a search warrant. The Government further contends that since the Defendant was afforded the additional protection of having a search warrant issued when in fact his Firearms Transaction Records were subject to inspection without the issuance of a search warrant in the first place, he cannot now complain. Apparently the Government is arguing that even if the procedure utilized in obtaining and executing the search warrant is invalid, the seizure must be upheld since it could have inspected and seized Defendant's guns and records pursuant to Section 923(g) of the Gun Control Act of 1968. The Government's argument fails on two grounds. First, since the Government chose to proceed by means of a search warrant, it cannot now alter this procedure and essentially say that it could have done the same thing by means of another procedure. The point is, the Government chose to proceed by means of a search warrant and it must establish its right to search and seize under the authority by which it was acting. Secondly, if the Government had proceeded under the statutory inspection procedure pursuant to Section 923(g) of the Gun Control Act of 1968, the inspection must occur ...

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