did not take place during Defendant's business hours.
Having determined that the Government must establish its
authority to search and seize by means of the search warrant,
questions arise as to the propriety of the issuance of the
search warrant and as to the execution thereof.
Defendant contends that probable cause does not exist to
permit the search and seizure of the Defendant's premises on
July 24, 1971. The basis for this contention, he alleges, is
that the alleged violations in the affidavit of ATF Agent
David Krug which took place at a Peoria Gun Show on May 15 and
16, 1971 were too remote in time to give probable cause for a
search on July 24, 1971.
Defendant argues that the reference in David Krug's
affidavit to a sale to Ronald Backer is not credible because
it is hearsay by an informer, and no one has attested to his
reliability. I do not believe that Mr. Backer is an informer
inasmuch as he executed an affidavit before the Magistrate,
and the Magistrate had the opportunity to determine Mr.
Backer's credibility. The defendant cites Giordenello v.
United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503
(1958), Aguilar v. Texas, 375 U.S. 108, 84 S.Ct. 1509, 12
L.Ed.2d 723 (1964), and Jones v. United States, 362 U.S. 257,
80 S.Ct. 725, 4 L.Ed.2d 697 (1960). These cases are
distinguishable since the informants in those cases were
unknown and the Magistrate had no opportunity to determine
their credibility. Mr. Backer's affidavit must be considered
in determining whether or not sufficient probable cause exists
to support a search warrant for the search of Defendant's
The affidavit of David Krug stated that the Defendant had
been issued a Federal Firearms Dealer's License, and that
license restricted all firearms transactions to Defendant's
place of business at 519 Highpoint Road, Peoria, Illinois.
That Edward Gleba purchased, on May 16, 1971, a .22 Caliber
Smith & Wesson escort pistol from an employee of the Defendant
at the Peoria Gun Show which was away from Defendant's
premises. That Joe Slater, on May 15, 1971, purchased a Smith
& Wesson bodyguard Model .38 Caliber two-inch revolver from
the Defendant at the Peoria Gun Show and that the Defendant
knew that Mr. Slater did not possess an Illinois Firearm
Owners Identification Card. The affidavit concludes by stating
that these two sales establish probable cause to believe that
the Defendant's premises is being used to store and conceal
firearms, books and records pertaining to firearms
transactions which are intended for use, or are being used as
the means of violating Section 922(a)(1), Title 18, U.S.C.
The affidavit of Ronald Backer states that he is a licensed
firearm dealer and that on May 15, 1971 he purchased from the
Defendant a Smith & Wesson .357 Magnum Caliber revolver at the
Peoria Gun Show. That the Defendant stated to the affiant that
the papers would be made out to John Doe. The affiant was not
asked to produce an Illinois Firearms Owner Identification
card or a Federal Firearms Dealers License, nor did the
Defendant make any record or execute any forms dealing with
the transfer. That on May 19, 1971 the affiant was advised by
the Defendant that the purchase of the .357 Magnum had been
written up to an individual in Fairfield, Illinois. That on
July 19, 1971 the affiant was present at the Defendant's
residence when the Defendant exhibited four Winchester rifles
and five new Smith & Wesson revolvers and asked the affiant if
he were interested in these guns. Affiant purchased a Model 36
Smith & Wesson Chief's Special and stated that he would be
interested in purchasing about six more on July 24, 1971. That
the Defendant asked the affiant if he wanted to handle the
transfer of the gun on his Federal Firearms License, his
Illinois Gun Owners Card, or a John Doe. That the Defendant
and affiant agreed to use the name Edward Wren for the
transfer. On the basis of the foregoing the affiant alleges
probable cause exists to believe that the Defendant's premises
is being used to store and conceal firearms, books and records
pertaining to firearms transactions which are intended for use
or are being used as the means of violating Section 922(a)(1)
of Title 18, U.S.C.
On the basis of these affidavits the Government contends
that all firearms described in Title I of the Gun Control Act
of 1968 (Title 18, U.S.C. Chap. 44, Sec. 921), and all books,
records and documents pertaining to firearms transactions are
being held and/or offered for sale in violation of Section
922, Title 18, U.S.C. by the Defendant, and that there is
probable cause to search and seize all these items.
Probable cause means more than a mere suspicion, but less
than evidence that would justify conviction. Brinegar v.
United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879
(1949). The classic definition of probable cause is found in
Brinegar v. United States, 338 U.S. 176, 69 S.Ct. 1311:
"These long prevailing standards seek to
safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded
charges of crime. They also seek to give fair
leeway for enforcing the law in the community's
protection. Because many situations which
confront officers in the course of executing
their duties are more or less ambiguous, room
must be allowed for some mistakes on their part.
But the mistakes must be those of reasonable men,
acting on facts leading sensibly to their
conclusions of probability. The rule of probable
cause is a practical, nontechnical conception
affording the best compromise that has been found
for accommodating these often opposing interests.
Requiring more would unduly hamper law
enforcement. To allow less would be to leave
law-abiding citizens at the mercy of the
officers' whim or caprice."
The affidavits and search warrant must be interpreted in a
common sense and realistic fashion. See United States v.
Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684. In
analyzing the affidavits of Mr. Krug and Mr. Backer in
addition to the search warrant, I find that probable cause
does exist to seize the books, documents and records of the
defendant in addition to the four Winchester rifles and five
Smith & Wesson revolvers. To say that probable cause exists to
search and seize anything other than the items hereinabove
mentioned would be illogical and highly improper.
The defendant is a licensed dealer and he has the legal right
to sell firearms lawfully to persons entitled to purchase
them. In relation to the Defendant's stock, the Government has
shown a very small number of allegedly illegal sales. Three of
the illegal sales that were mentioned by the Government took
place at the Peoria Gun Show. One took place at the
Defendant's residence, and nine other guns were allegedly
offered for sale by the Defendant illegally. It would strain
the fabric of law beyond reason to say that because of these
transactions probable cause exists to search and seize all of
the Defendant's gun stock. The Government's position appears
to be that since the Defendant has allegedly made some illegal
sales, he intends to sell the remaining portion of his gun
stock illegally. This is not a rational conclusion. The
Government is reasoning from a specific situation dealing with
a small number of guns to a general situation dealing with
Defendant's entire stock without a substantial basis.
Accordingly, I find no probable cause to search and seize
anything other than Defendant's books, records and documents
relating to firearms transactions and the four Winchester
rifles and five Smith & Wesson revolvers. All other items
seized in this search must be suppressed.
Notwithstanding the fact that probable cause does exist for
the above mentioned items, there is a problem with the
execution of the search warrant. As pointed out earlier, there
a conflict in testimony between the various ATF agents and the
two defense witnesses, namely the Defendant and Miss Eckhoff.
It is apparent that agents Slater, Donnley and Dytrych had
examined Government Exhibits 1 and 2 prior to the hearing and
attempted to tailor their testimony as to the portrayal of the
Defendant's premises in these pictures. Each described the
door to Defendant's front entrance as having frosted panes of
glass throughout the door. With a quick glance of Exhibits 1
and 2 this would appear to be correct. However, the testimony
of the Defendant and Miss Eckhoff, who is a disinterested
third party, reveals that the front entrance to the
Defendant's premises at 519 Highpoint Road, Peoria, Illinois,
has two doors, a glass storm door and a large wooden door with
one pane of glass in it near the top of the door. What Exhibit
1 and 2 portrays is not a large wooden door with glass panels.
It portrays a view looking directly into the front entrance of
Defendant's premises with the glass storm door closed and the
large wooden door opened out of the picture. The glass panes
described by the agents as being part of the door is in fact
the rear picture window of Defendant's living room overlooking
the Illinois River. This is substantiated by agent Herbert's
testimony that while sitting in the living room waiting for
the Defendant to arrive, he observed a large picture window
overlooking a river.
I accept and adopt as my Findings of Fact the testimony of
the Defendant and Miss Eckhoff. Namely that the large wooden
door was open and the storm door closed, and that agent
Dytrych entered the Defendant's premises without prior
announcement of authority and purpose. Title 18 U.S.C.
Section 3109 states:
"The officer may break open any outer or inner
door or window of a house, or any part of a
house, or anything therein, to execute a search
warrant if, after notice of his authority and
purpose he is refused admittance or when
necessary to liberate himself or a person aiding
him in the execution of the warrant."
In Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20
L.Ed.2d 828 (1968), the Court stated:
"An unannounced intrusion into a dwelling — what §
3109 basically proscribes — is no less an
unannounced intrusion whether officers break down a
door, force open a chain lock on a partially open
door, open a locked door by use of a passkey, or,
as here, open a closed but unlocked door. The
protection afforded by, and the values inherent in
§ 3109 must be `governed by something more than the
fortuitous circumstance of an unlocked door.'"
Keiningham v. United States, 109 U.S.App.D.C. 272,
276, 287 F.2d 126, 130 (1960).
If an officer breaks in without announcing who he is, and by
what authority he is entering, the invalid execution of the
warrant will require that any evidence obtained from this
search must be suppressed. Sabbath v. United States,