2004 | Cited 0 times | D. Maine | June 4, 2004


This matter is before the court on Defendant Daniel Bishop's motionto suppress (Docket No. 12). Because this motion is a straight-up frontalattack to the facial sufficiency of the challenged state court searchwarrant, no evidentiary hearing was held. I did schedule oral argument onthe motion, held on May 27, 2004, and I now recommend that the courtDENY the motion to suppress.


In unambiguous terms the search warrant affidavit filed on January 22,2004, sets forth probable cause to believe that firearms and related gunparaphernalia belonging to Daniel Bishop, located inside his residence at170 Kelly Road, Orono, Maine, were subject to seizure as evidence of thecommission of a criminal offense. The affidavit recites that Bishop is aconvicted felon and prohibited from owning or possessing firearms. Italso reveals that on January 22, 2004, Bishop's roommate indicated to lawenforcement officers that there were locked firearms in the residence atthat time and the firearms did not belong to the roommate. Furthermore,the roommate's former girlfriend told law enforcement personnel thatsometime between February and October 2003 she traveled with DanielBishop to a storage unit in Corinth, Maine where Bishop picked up two or three handguns and two or three long guns which he thentransported to 170 Kelly Road. According to the former girlfriend, thoseguns were still in the house when she moved out in October 2003.

Based upon these facts the officer sought and obtained a state courtsearch warrant authorizing a search of 170 Kelly Road and "any vehicleslocated on the premises of the described property." The warrantauthorized the seizure of firearms. It also authorized the seizure of"[f]irearm-related components, including holsters, scopes, and cases" andany ammunition on the premises. The police reports and search warrantinventory return indicate that firearms and related items such asammunition, cleaning kits, and gun cases were recovered from inside theresidence during the execution of the search warrant.

Bishop's facial challenge to this warrant is three-pronged. He argues,first, that the warrant lacks the requisite specificity; second, thatthere is no probable cause for the search; and, third, that the searchwarrant exceeds the scope of Maine Rule of Criminal Procedure 41. In myopinion the latter two arguments are nonstarters. Clearly any common sensereading of the affidavit supports a finding of probable cause to supportthe search of the residence and Bishop's own vehicle. Kevin Wood, aresident of 170 Kelly Road, told the officers that there were firearms inhis home and that they did not belong to him. The other occupant of 170Kelly Road was Bishop, an individual with a felony conviction, and theperson who was identified some months prior to the issuance of the warrantas bringing the guns into the home. Furthermore, even though it is not aseparate criminal violation to possess things like holsters, scopes, andcases, the appearance of those items in the residence constitutesevidence of the use and possession of firearms, and, thus, their seizure is within the scope of Rule 41 under either theFederal or Maine rules governing criminal procedure. The Maine ruleauthorizes the seizure of "any property that constitutes evidence of thecommission of a criminal offense." Me. R. Crim. P. 41(b); see alsoFed.R.Crim.P. 41(c)(1) (authorizing the issuance of a warrant for searchand seizure of "evidence of a crime"). The legality of the seizure doesnot change because Bishop could lawfully possess some firearm-relatedcomponents. A piece of property may constitute evidence of a crime evenif it is not contraband in and of itself. Courts routinely issue searchwarrants for legal items that are nevertheless evidence of criminalconduct. See, e.g., United States v. Leahy, 47 F.3d 396, 398 (10th Cir.1995)(documents relating to acquisition of firearms); United States v.Conley, 4 F.3d 1200, 1204 (3d Cir. 1993) (revenue records); United Statesv. Porter, 831 F.2d 760, 764 (8th Cir. 1987) (stamps and currency).

Turning to Bishop's other argument, that the warrant lacks specificityand is perilously close to, if not over, the line into the realm of a"general warrant," there are two fronts to the attack. First, Bishopmaintains that the description of the items to be seized wasimpermissibly vague, leaving broad discretion to the officers executingthe warrant. The items were described as "[f]irearm-related components,including holsters, scopes, and cases." I find that this description issufficiently specific to pass constitutional muster. A generaldescription in a warrant can be acceptable when the surroundingcircumstances render it reasonable. United States v. Morris, 977 F.2d 677,680-81 (1st Cir. 1992). A warrant may authorize the seizure of an entireclass of items if it establishes probable cause as to the entire class.In United States v. Morris, for instance, the First Circuit found that awarrant authorizing the seizure of "all that is relating to drugs and narcotics" was sufficiently particular because theaffidavits submitted in support of the warrant established probable causethat the property to be searched was used for drug trafficking. The courtupheld the warrant against constitutional attack, finding that it was"clearly not a case where, insofar as drugs and narcotics are concerned,the executing officers were left with unfettered discretion as to whatthey could seize." Id. at 682.

In addition, the Bishop warrant contained a specific reference to thestatute the officers alleged was being violated. Statutory references inthe warrant can adequately narrow otherwise broad language describing theitems to be seized. For instance, in United States v. Docktor,58 F.3d 1284, 1288-89 (8th Cir. 1995), the court upheld a warrantpermitting the seizure of firearms, ammunition and "all otherinstrumentalities, substances or documents" relating to the crime ofpossession of a firearm by a felon. The Eighth Circuit ruled that thewarrant was sufficiently particular because the affidavit filed insupport of the warrant specifically referred to the gun possessionstatute and the items described in the warrant were narrowly tailored tothe crimes alleged. Id. at 89. For these reasons, the warrant wassufficiently particular when it authorized seizure of firearm-relatedcomponents. This type of property is evidence relevant to the crime offirearm possession. The affidavit filed in support of the warrantestablished probable cause that the entire class of components could beseized. The warrant was accompanied by a statutory reference to 15M.R.S.A. § 393 and a list of examples that narrowly defined what types ofevidence to be seized. Like Morris, therefore, it was not a case wherethe officers were left with unfettered discretion about what to seize. What the affidavit does not do is establish probable cause, as aclass, as to all vehicles that might be on the premises of 170 KellyRoad. Bishop correctly points out that clearly the warrant is overbroadin this respect and that with a minimum amount of investigative work lawenforcement personnel could have identified the specific vehiclesregistered to or used by him. The United States does not really disputethat contention in its response, but relies upon the "no harm, no foul"rule. None of the seized firearms were removed from Bishop's vehicle oranyone else's vehicle. In cases of this ilk, the First Circuit has saidthat the court can selectively excise the offending portions of thewarrant and still admit other items of evidence properly seized under thewarrant. See United States v. Diaz, 841 F.2d 1, 4 (1st Cir. 1988) (searchwarrant which allowed impermissible seizure of some items withoutprobable cause and properly allowed seizure of other items, was notentirely invalid) (citing United States v. Riggs, 690 F.2d 298 (1st Cir.1982)). That principle can be applied to the vehicle searches in thiscase.


Based upon the foregoing, I recommend that the court DENY the motion tosuppress.


A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, and request for oral argument before the district judge, if any is sought, within ten (10) days of being served with a copy thereof. A responsive memorandum and any request for oral argument before the district judge shall be filed within ten (10) days after the filing of the objection. Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.

Back to top