### The Honorable Ann D. Montgomery, United States District 1 

### Judge for the District of Minnesota, sitting by designation. The Honorable Michael J. Melloy, United States District 2 

### Judge for the Northern District of Iowa. No. 96-3329

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Ralph A. Weinbender, * * Appellant. *

Submitted: January 15, 1997 Filed: April 3, 1997
Before WOLLMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge , and MONTGOMERY, District Judge. 1
MONTGOMERY, District Judge.

This is an appeal of the district court’s denial of a motion t o 2 suppress. After the denial of his motion to suppress, Ralph Weinbende r entered a conditional plea of guilty to unlawful possession of a silencer in violation of 26 U.S.C. §§ 5861 and 5871. He was subsequently sentenced , inter alia , to a term of imprisonment of 24 mont hs. This appeal followed. We affirm.
On June 9, 1993, an unidentified assailant shot a BB gun at the front window of a residence in Dubuque, Iowa. Unbeknownst to the assailant, a video camera had been installed to record activities in front of the house

. The videotape on the night of

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the shooting showed a man wearing a light-weight windbreaker, dark shorts, tan shoes and a baseball cap with a logo affixed to it.

In October, 1995, the June 9, 1993 videotape was shown to Debora h Weinbender, Ralph Wei nbender’s estranged wife. She identified the man on the videotape as her husband by his physical app earance, running style and clothes. She recogni zed the bluish-gray windbreaker he had received from his d eceased father; the dark shorts which he wore frequently; his ta n Reebok shoes and the baseball cap with a logo.

Based on the information obtained from Deborah Weinbender and o thers, Capta in Pat Egan of the Dubuque Police Department applied for a searc h
warr ant for Ralph Weinbender’s house. On October 25, 1995, the Iow a District Court, Dubuque County, issued the requested warrant to search for :
a bluish-gray windbreaker jacket; a dark pair of shorts, pockets in th e front, one in the rear; tannish Reebok shoes; and a ball hat with logo.

Prior to the execution of the warrant, officers were advised b y Deborah Weinbender that Ralph Weinbender had several “hiding places” in hi s house. She informed the officers that there were hiding places in th e attic as well as under the stairs in the basement. This information was communicated to the officers conducting the search. Off icers from the Dubuque Police Department executed the searc h warrant on October 25, 1995. During the search, officers broke into teams to search separate areas of the house. Officers James Sawvel and Ji m Schmit searched the basement, including a closet under the stairs. Th e close t was partially finished with drywall hung on several walls. Th e seams of the drywall were unfinished.

### -3- Upon entering the closet, Officer Schmit observed a framed pictur e hanging on the unfinished drywall. When he removed the picture, he notice d that the uppermost piece of drywall moved. This piece of drywall was smal l (approximately 101⁄4” high by 35" wide) and custom cut to fit in the notch of the steel I-beam which ran along the top of the closet. He then remove d the piece of drywall. Although there were nails through it, he was able to remove the drywall in a few seconds without using any tools. Behind th e drywall, Officer Schmit saw two pieces of wood stuck between the I-beam an d the wal l studs. The wood pieces were not attached to anything and wer e removed.
Using a flashlight, Officer Schmit was able to see items along th e I-beam behind the wall studs. The first item extracted was a metal objec t which Off icer Schmit initially believed might be a pipe bomb. He late r learned that the item was part of a homemade silencer. Officer Schmi t subsequently removed the other items stored along the I-beam. In all, he
rec overed a pistol, two parts to a homemade silencer, a holster and a magazine for the pistol.

Based upon the evidence seized by Officer Schmit, Ralph Weinbende r
was charge d with unlawful possession of a silencer in violation of 2 6 U.S.C
. §§ 5861(c) and 5871. Weinbender moved to suppress the evidenc e seized from his basement closet, but his motion was denied. H e subsequently pled guilty conditioned upon his ri ght to appeal the district court’s denial of his motion to suppress. In this appeal, Weinbender claims that the police exceeded th e authority and scope of the search warrant when t he officer removed drywall and t wo pieces of wood in an attempt to find clothing and shoes from a n alleged crime occurring 28 months before the search.

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He also c laims that the seizure of the items was not justified by th e “plain view” doctrine because the officers were not lawfully in a position to view the items and the officers did not realize the incriminating natur e of the items at the time they were observed. He thus argues that th e evidence should be suppressed.
The denial of a motion to suppress i s reviewed de novo. See United States v. Morgan , 91 F.3d 1193, 1195 (8th Cir. 1996); Ornelas v. Unite d States , U.S. , , 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996). However, “a reviewing court should take care both to review findings o f historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcemen t officers.” Ornelas , U.S. at , 116 S.Ct. at 1663, 134 L.Ed.2d 911. Whether o fficers exceeded the scope of a warrant during a search i s reviewed de novo. Un ited States v. Becker , 929 F.2d 442, 446 (9th Cir.), cert. den ied , 502 U.S. 862, 112 S.Ct. 183, 116 L.Ed.2d 145 (1991), app

. after rem. 23 F.3d 1537 (9th Cir. 1994); United States v. Snook , 88 F.3d 605, 607 (8th Cir. 1996). A lawf ul search extends to all areas and containers in which th e object of the search may be found. United States v. Hughes , 940 F.2d 1125 , 1127 (8th Cir.), cert. denied , 502 U.S. 896, 112 S.Ct. 267, 116 L.Ed.2d 22 0 (1991). However, “[t]he manner in which a warrant is executed is always subject to judicial review to ensure that is doe s not traverse the general Fourth Amendment pros cription against unreasonableness.” Hummel-Jones v. Strope , 25 F.3d 647, 650 (8th Cir. 1994). In this case, the search warrant authorized officers to search th e entiret y of Weinbender’s home for the specified items. Moreover, th e office rs had been informed that “hiding places,” including under th e basement stairs, were utilized by Weinbender.

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The space along the I-beam was sufficiently large to permit any of th e list ed items to be stored there. Furthermore, the evidence does no t suppor t Weinbender’s argument that Officer Schmit engaged in th e unnecessary destruction of property. Instead, as the district court noted , There’s no evidence in the pictures of any forcible pulling out of nails or ripping the drywall down. And to me it was pretty clear it was a cutout panel of drywall that came down prett y easily and behind it was a compartment that contain ed the items which are the subject of this prosecution. And so it seems to me t hat under those circumstances, we’re not talking abou t pulling nails out of the wall or taking ceilings down or walls down,. . . .

See Suppression hearing transcript, at 110.
In light of the information possesse d by the searching officers, the relative ease with which the officer removed the drywall and the reasonabl e probability of finding the sought for items hidd en behind the drywall, the actions of Officer Schmit were reasonable.
Weinbender also argues that the seiz ure of the homemade silencer was not justif ied under the plain view doctrine. The plain view doctrin e permits law enforcement officers to “seize evide nce without a warrant when (1) ‘the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed,’ (2) the object’s incriminating character is immediately apparent, and (3) the officer has ‘a lawful right of access to the object itself.’” Hughes , 940 F.2d at 1126

- 27 (quoting Horton v. California , 496 U.S. 128, 136-37, 110 S.Ct. 2301 , 2307-08, 110 L.Ed.2d 112 (1990)).

### -6- In this case, the law enforcement officers gained access t o Weinbender’s residence under a properly issued w arrant. See United States

v. Murphy , 69 F.3d 237, 242 (8th Cir.), cert. denied , U.S. , 11 6 S.Ct. 1032, 134 L.Ed. 2d 109 (1996). As indicated supra , since the items listed in the warrant could have been concealed along the I-beam, th e officers did not violate the Fourth Amendment by visually searching that location. In addition, to properly observe the items secreted along the I-beam and to ensure that no additional items were present there, each ite m had to be removed. Thus, Officer Schmit did not violate the Fourt h Amendment in removing the items from their secret storage place along the I-beam.

When Off icer Schmit pulled the first metal object from its restin g spo t along the I-beam, he believed that it was a pipe bomb. He late r learn ed the object was part of a homemade silencer. “The ‘immediatel y appare nt’ requirement means that officers must have ‘probable cause t o associate the propert y with criminal activity.’” United States v. Hatten , 68 F.3d 257, 2 61 (8th Cir. 1995), cert. denied , U.S. , 116 S.Ct

. 1026, 134 L.Ed.2d 105 (1996), (quoting United States v. Garner , 907 F.2d 60, 62 (8th Cir.), ce rt. denied 498 U.S. 1068, 111 S.Ct. 787, 112 L.Ed.2d 849 (1991)). “Probable cause demands not that an officer be ‘sure’ o r ‘certain’ but only that the facts available to a reasonably cautious man would warrant a belief ‘that certain items may be contraband or stole n property or useful as evidence of a crime.’” Id. , (quoting Garner , 907 F.2 d at 62, in turn quotin g Texas v. Brown , 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983)). Her e, the incriminating character of the object was immediatel y apparent to Officer Schmit. The possession of either a pipe bomb or a homemade silencer is illegal. The fact that the item turned out to be the silencer, instead of a pipe bomb, did not

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vitiate t he probable cause. See Murphy , 69 F.3d at 242 (“Regardless o f whethe r the chemicals were used for manufacturing drugs or explosives , th eir incriminating nature as contraband was immediately apparent t o officers entering the house.”). Thus, the seizure of the homemade silence r was justified under the plain view doctrine.

In conclusion, the district court did not err in denyin g Weinbender’s motion to suppress. Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.