United States v. Eli Gusan

549 F.2d 15
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 25, 1977
Docket76-1858
StatusPublished
Cited by30 cases

This text of 549 F.2d 15 (United States v. Eli Gusan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eli Gusan, 549 F.2d 15 (7th Cir. 1977).

Opinions

SPRECHER, 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 Juiie 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 eases 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 “[i]t 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 “[t]he 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) 11

(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 envelope such as bookies sometimes use to pay off their bets.

(6) “The members of the Gary Police Department have cause to believe that the establishment located at' 1172 Harrison Blvd., Gary, Indiana . . . [is] now being used as a horse betting operation.”

(7) “This affidavit is made for the purpose of securing a search warrant in order that a lawful search of the herein described residence . . . including any lower level of the' residence may be made . ” (Emphasis added.)

(8) “The establishment located at 1172 Harrison Blvd., Gary, Lake County, Indiana is a Two story Duplex. The exterior walls [17]*17are white stucco with a dark roof. The entrance to 1172 Harrison Blvd. is a single entrance in the front with a[n] open porch and a single entrance in the rear.” (Emphasis added.)

Pursuant to the defendant’s motion to suppress, an evidentiary hearing was held before the district court on June 4, 1976, at which time the defendant’s principal evidence was the testimony of the owner of the premises which included 1172 Harrison Boulevard. He testified that the building was a two-story stucco duplex, as recited in the search warrant, but that there were four separate apartments: two apartments at 1176 Harrison, which constituted the southern half of the premises and two additional apartments at 1172 Harrison, which constituted the northern half of the premises. He further testified that there were two porches, each with an entrance, on the front or east side of the building; that the southern porch entrance at 1176 provided access to the first and second-story apartments at 1176, as well as to the second-story apartment at 1172; that the northern porch entrance at 1172 provided access to the first-story apartment at 1172; that he himself occupied the first story at 1176, that the defendant leased and occupied the second-story at 1172; and that the second-story at 1176 and the first-story at 1172 were both vacant, the latter for one-and-a-half years prior to the search involved in this case.

The owner of the premises further testified that each of the four apartments was provided with separate keys and with separate gas and electric meters. However, he also testified that the four gas meters were located on the south or 1176 side of the building, that the electric meters were on the west or in the rear of the building, and that there were only three mailboxes, two on the front porch on the 1176 side and only one on the front porch on the 1172 side of the premises. Therefore, the police officers could not necessarily have seen, without trespassing, the gas meters on the 1176 or opposite side of the house nor the electric meters at the rear of the house, but could have readily observed only one mailbox at 1172. Both the owner and the tenant who had vacated the first-story 1172 apartment one-and-a-half years before the search, conceded that access to the second-story 1172 apartment could be gained by entering at the porch at 1172 and going through the first-story apartment to a hallway leading to a stairway which went to the upper apartment and that was the only way one using the 1172 door could get to the second-story 1172 apartment. The owner’s credibility was not supported when he testified that he could not recall whether the 1172 entrance was identified by numbers on the building.

Both the defendant and a Gary police detective agreed in their testimony that on March 19, 1976, the defendant was arrested approximately three miles from his apartment at 1172 Harrison Boulevard, was handcuffed, and was taken to the porch entrance at 1172, where the police broke a pane of glass, unlocked the door at 1172 through the broken glass, briefly searched the vacant apartment on the first floor, walked through the apartment to a hall which led to the stairs, went up the stairs to the second-story apartment and, searching it, found 109 items of betting paraphernalia, as well as the two unregistered machine guns which became the subject of the indictment in this case.

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Bluebook (online)
549 F.2d 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eli-gusan-ca7-1977.