M.D.N.C.: SW for stolen tractor lawn mower didn’t support plain view in house of firearm

A search warrant for a stolen tractor lawn mower didn’t support a plain view in defendant’s house for alleged illegal firearms because they aren’t per se unlawful to possess. They could have been registered. United States v. White, 2017 U.S. Dist. LEXIS 93750 (M.D. N.C. June 19, 2017):

There is little question that the statement made by Sgt. Hampshire characterizing his interview with White was intended to mislead the judge into believing White had admitted to stealing a tractor and further had recanted that admission. Further, there is no question that the statement in paragraph 14 would compel a judge to find probable cause under the circumstances of this case. Thus, Sgt. Hampshire’s inclusion of the statement outlined in paragraph 14 was reckless in that it was without basis, was misleading, and further it was material to the state court’s finding of probable cause. The Court concludes that White has made the substantial preliminary showing that he is entitled to a Frank’s hearing; however, in light of the fact that the motion to suppress will be granted on other grounds, such a hearing is unnecessary at this time.

. . .

White’s final argument for suppression is that the lawfulness of the rifle and silencers was not readily apparent to officers seizing them and thus the plain-view doctrine should not apply. It is undisputed that the search warrant in this case does not specifically authorize the search or the seizure of the rifle and silencers found in White’s home. (See ECF No. 15 at 2; ECF No. 17 at 32 & n.9.) Therefore, the Court must determine whether an exception to the warrant requirement is applicable here. The Government contends that the seizure of these items is permissible under the plain-view doctrine. The Court concludes, however, that the Government has failed to carry its burden of demonstrating the plain-view exception to the warrant requirement is applicable here and, thus, White’s motion to suppress must be granted.

Moreover, the Government presented no argument as to how the rifle and silencers present in White’s home would be an immediately apparent violation of the statute prohibiting the possession of unregistered firearms. S.A. Cummings testified that possession of the short-barreled rifle and the modified silencers was not per se illegal if properly registered. Nor did S.A. Cummings testify that he had probable cause to believe these items were unregistered. On these facts, the Government has failed to carry its burden of demonstrating the incriminating character of the rifle and silencers was immediately apparent. See United States v. Holmes, 36 F. Supp. 3d 970, 977 (D. Mont. 2014) (stating the government “present[ed] no argument as to how a silenced pistol stored without the registration paperwork constitut[ed] an immediately apparent violation of the statute proscribing unregistered silencers” and thus the government “had no reliable basis—much less one that was immediately apparent—from which to conclude that the silencer was unregistered”).

Based on the evidence presented, the Government has failed to carry its burden of establishing that the search and seizure of the items in question fell within the plain-view exception to the warrant requirement. Thus, the Court concludes the rifle and silencers must be suppressed.

The Fourth Amendment of the United States Constitution requires that individuals must be protected, particularly in their homes, from unreasonable searches and seizures. When it appears that law enforcement treats this sacred constitutional right as nothing more than an impediment to making their case, we all lose.

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