Appeal from the United States District Court for the Northern District of Indiana, Hammond Division No. H CR 76-57 - Allen Sharp, Judge.
Swygert, Sprecher and Tone, Circuit Judges. Swygert, Circuit Judge.
The sole issue in this appeal is whether the search warrant contravened the Fourth Amendment by not describing the place to be searched with sufficient particularity.
The defendant, Eli Gusan, was indicted in two counts for knowingly possessing two firearms - a Spitfire.45 caliber machine gun and a Sten MK II machine gun, 9 mm caliber - which firearms were not registered to him, in violation of 26 U.S.C. § 5861(d). Upon a written waiver of trial by jury and submission on stipulated facts, defendant was found guilty and sentenced to seven years and a fine of $5,000 as to each count, the sentences to run concurrently. The defendant expressly reserved his right to appeal from the order of the district court of June 4, 1976, denying his motion to suppress evidence on the ground of unreasonable search and seizure. This direct appeal from the judgment of conviction of August 20, 1976, is limited to the issue of the search and seizure.
The Fourth Amendment provides in part that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Inasmuch as search and seizure cases depend so heavily upon the precise facts involved, we will examine those facts in some detail in order to apply what we believe to be the applicable law.
The affidavit supporting the search warrant was incorporated in its entirety in the search warrant, a copy of which was handed to the defendant upon his arrest and shortly prior to the search of his apartment. Although it has been held that "it is the description in the search warrant, not the language of the affidavit, which determines the place to be searched," United States v. Kaye, 139 U.S. App. D.C. 214, 432 F.2d 647, 649 (1970), here "the affidavit was incorporated into the warrant, and we shall not require that the facts stated in the affidavit be recited again on the face of the warrant when they are served together," United States v. Rael, 467 F.2d 333, 335 (10th Cir. 1972). See also, United States v. Womack, 166 U.S. App. D.C. 35, 509 F.2d 368, 382 (1975).
The affidavit thus incorporated into the search warrant described the place to be searched in the following language:
(1) "premises described as 1172 Harrison Blvd. . . . in the City of Gary, County of Lake, State of Indiana . . . ."
(2) "the establishment located at 1172 Harrison Blvd., Gary, Lake County, Indiana . . . ."
(3) "horse bets have been placed by the informant over the telephone to Eli Gusan by telephoning him at 885-0718 (which is listed to Gusan Real Estate, 1172 Harrison Blvd., Gary, Lake County, Indiana) . . . ."
(4) Eli Gusan was observed "making stops" on March 2, 4 and 17, 1976 at several addresses and finally at "1172 Harrison Blvd., Gary."
(5) On February 26, 1976 police officers "observed three male white subjects enter 1172 Harrison Blvd." and, following one of those subjects after he left, he was seen throwing out of his automobile window an ...