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United States v. Unger

decided: November 28, 1972.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HERMAN P. UNGER, JR., DEFENDANT-APPELLANT



Duffy, Senior Circuit Judge, Fairchild, Circuit Judge and Grant, District Judge.*fn*

Author: Duffy

DUFFY, Senior Circuit Judge.

Defendant-appellant is a licensed firearm dealer. He was tried before the court on a three-count indictment charging possession of unregistered firearms in two counts and a failure to keep registration records in the third count. Defendant was found guilty of the possession charge in Count I*fn1 and was fined $500. Defendant appeals.

On December 20, 1970, pursuant to a search warrant, Chicago police detective Vollick and several other City police officers went to defendant's apartment located in Chicago, Illinois. Defendant Unger was present when the officers arrived and led the officers to the basement of his apartment. A number of weapons were discovered in a basement locker including machine guns, rifles, pistols, hand grenade casings, black powder, fuse assembly kits for hand grenades and M-2 conversion kits.

Daniel Harnett, a U.S. Treasury agent, testified that he heard an Assistant State's Attorney warn defendant of his constitutional rights. Later, when defendant was asked whether the M-2 conversion kits were registered defendant replied, "No, you've got me there".

At the trial, defendant moved for a judgment of acquittal without tendering any witnesses after the government had presented their evidence. The basis for this appeal is that the trial court erred in denying defendant's pre-trial motion to quash the search warrant. Therefore, questions concerning the constitutional requirements for obtaining a state search warrant are now before us.

The complaint for the warrant alleged that a private citizen, while working at his occupation, had occasion to be in the basement of an apartment building located on North Ashland Avenue, Chicago. In the course of his work, he observed an enclosed locker in the southeast corner of the basement. There was a small opening in the locker through which a cache of weapons was visible.

The citizen called the police, and based upon his experience with weapons gained while in the Ordnance section of the United States Army, he described the firearms and materials with particularity.

Thereafter, the citizen personally identified the building in question to the police and drew a diagram of the basement disclosing the exact location of the locker where the weapons were stored.

Based upon this information, Detective Vollick, the complainant in the warrant, applied to a magistrate and obtained a search warrant to search the locker and seize the specific weapons which had been described to him by the citizen.*fn2

Defendant contends on appeal that the District Court improperly denied his motion to suppress the evidence and material listed in the indictment after he attempted to indicate the insufficiency of the complaint for the search warrant. In support of his argument, defendant alleges under the guidelines of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1967) that the complaint for the search warrant herein was insufficient to provide "a neutral and detached magistrate "*fn3 with the requisite probable cause basis for the warrant to issue and furthermore, the complainant failed to allege or make a showing with respect to the reliability of the unidentified citizen-informant providing the police officer with the pertinent information.

Even if the decision of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960) which gives great deference to a magistrate's determination of probable cause is ignored, we are convinced the complaint for warrant was factually sufficient to form a probable cause basis for the warrant to issue. The locker containing the arms and the distinct varieties of arms viewed by the citizen were described with great particularity evincing personal observation. Furthermore, with knowledge of weapons gleaned from the Armed Forces, the citizen was able to list the types of weapons he witnessed inside the locker for police, believing them to be illegally stored or possessed.

We turn to the question raised by defendant of the omission of an allegation in the complaint for the warrant concerning the reliability of the informant, which defendant considers fatal to the validity of said warrant.

The exactions of the complaint for a search warrant under the Fourth Amendment are propounded by the Supreme Court in Aguilar, supra, and later considered in Spinelli, supra. Under Aguilar, supra, a complaint when based solely on hearsay information from an unidentified informant must recite ". . . some of the underlying circumstances from which the officer concluded that the ...


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