The opinion of the court was delivered by: McLAREN, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant's motions for
return of property and suppression of its use as evidence and
for a bill of particulars. The motions are denied.
Defendant has been charged in fourteen counts for unlawfully
dealing in firearms and unlawfully making, possessing and
transferring specified firearms. On December 18, 1972 a search
of defendant's residence was conducted and approximately
twenty-six firearms and other articles were seized. A warrant
had been issued by a United States Magistrate for the search
of these premises.
The warrant was based upon an affidavit containing hearsay
evidence from an informer. In Aguilar v. Texas, 378 U.S. 108,
114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1965), the Supreme Court
stated that in order to base an affidavit on hearsay
information, the magistrate must have knowledge of (1) the
underlying circumstances from which the informant concluded
that the sought-after goods were where he claimed they were
and (2) the underlying circumstances from which the officer
concluded that the informant was reliable. The instant
challenge is directed at the issue of informant's reliability.
The reliability of the informant was sufficiently
corroborated to sustain the instant warrant. The test is
whether a substantial basis existed for crediting the hearsay
testimony of the informant. United States v. Harris,
403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed. 723 (1971); Jones v. United
States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697
(1960). Here, the affidavit recited that on three separate
occasions the informant had supplied reliable information to
agents of the Bureau of Narcotics and Dangerous Drugs and that
on each said occasion surveillance had corroborated his
information. Defendant contends that affiant did not state he
had personal knowledge and that he must have relied on the
statements of other agents with respect to the reliability of
informants. Granted that this is hearsay, the finding of
probable cause may rest on evidence not legally competent in
a criminal trial (United States v. Ventresca, 380 U.S. 102,
107-108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Draper v. United
States, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327
(1959)), and observations of fellow officers may be recited in
an affidavit and provide a reliable basis for a warrant.
Ventresca, supra, 380 U.S. at 111, 85 S.Ct. 741. In short, the
magistrate may consider testimony that other officers had
experienced the informant to be reliable. Contrary to
defendant's assertion, it appears unnecessary to supply factual
details upon which the conclusion of reliability is based. See
Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4
L.Ed.2d 697 (1960).
Additional circumstances were set forth in the affidavit
that support affiant's conclusion that the informant was
reliable. The affiant stated that while he had defendant's
premises under surveillance the informant went there on
November 30, 1972, purchased a sawed-off shotgun and delivered
the same to affiant. The fact that affiant conducted his
surveillance while stationed across the street from the
premises and could not personally identify defendant Geldon at
the preliminary hearing does not detract from that event as a
corroborating circumstance. Furthermore, the informer
delivered a white powder that allegedly was obtained from
Geldon and contained barbituates. A field test of the
substance established that it did contain barbituates. Such
circumstances would certainly provide a substantial basis for
relying upon the informer's statements.
The general rule is that only those items described in the
search warrant may be seized. However, numerous exceptions
have developed. In United States v. Zeidman, 444 F.2d 1051
(7th Cir. 1971) the search warrant described one weapon.
Another weapon — a semiautomatic pistol with detachable
holster-shoulder stock — was seized and that seizure was upheld
on the ground that the weapon was a short barreled rifle and
there was probable cause to believe that it was held in
violation of 26 U.S.C. § 5841, which required that such weapons
be registered. See also 26 U.S.C. § 5861 which makes illegal
the receipt or possession of an unregistered firearm. That case
would provide authority for upholding the seizure of any
weapons involved here which should have been registered
pursuant to § 5841.
Furthermore, when the initial search is reasonable, it is
permissible to seize evidence not described in the warrant,
but which has a nexus with the crime under investigation.
Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294,
306-307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States
v. Kane, 450 F.2d 77 (5th Cir. 1971), cert. denied,
405 U.S. 934, 92 S.Ct. 954, 30 L.Ed.2d 810 (1972); United States v.
Mahler, 442 F.2d 1172, 1175 (9th Cir.), cert. denied,
404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971). Here, one of the
crimes under investigation was illegal dealing in firearms.
The additional guns seized have a nexus in that they would
constitute evidence of inventory for the purpose of carrying
out the crime.
In light of the foregoing, the motion to suppress and return
the seized goods is denied.
The purpose of a bill of particulars is to provide defendant
with information regarding the alleged crime sufficient to
avoid surprise at trial and to enable him to plead the
conviction or acquittal in bar of another prosecution. ...