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 to

2

suppress. After the denial of his motion to suppress, Ralph Weinbender

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 months. 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 Deborah

Weinbender, Ralph Weinbender’s estranged wife. She identified the man on

the videotape as her husband by his physical appearance, running style and

clothes. She recognized the bluish-gray windbreaker he had received from

his deceased father; the dark shorts which he wore frequently; his tan

Reebok shoes and the baseball cap with a logo.

Based on the information obtained from Deborah Weinbender and others,

Captain Pat Egan of the Dubuque Police Department applied for a search

warrant for Ralph Weinbender’s house. On October 25, 1995, the Iowa

District Court, Dubuque County, issued the requested warrant to search for:

a bluish-gray windbreaker jacket; a dark pair of shorts, pockets in the

front, one in the rear; tannish Reebok shoes; and a ball hat with logo.

Prior to the execution of the warrant, officers were advised by

Deborah Weinbender that Ralph Weinbender had several “hiding places” in his

house. She informed the officers that there were hiding places in the

attic as well as under the stairs in the basement. This information was

communicated to the officers conducting the search.

Officers from the Dubuque Police Department executed the search

warrant on October 25, 1995. During the search, officers broke into teams

to search separate areas of the house. Officers James Sawvel and Jim

Schmit searched the basement, including a closet under the stairs. The

closet was partially finished with drywall hung on several walls. The

seams of the drywall were unfinished. 
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Upon entering the closet, Officer Schmit observed a framed picture

hanging on the unfinished drywall. When he removed the picture, he noticed

that the uppermost piece of drywall moved. This piece of drywall was small

(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 removed

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 the

drywall, Officer Schmit saw two pieces of wood stuck between the I-beam and

the wall studs. The wood pieces were not attached to anything and were

removed.

Using a flashlight, Officer Schmit was able to see items along the

I-beam behind the wall studs. The first item extracted was a metal object

which Officer Schmit initially believed might be a pipe bomb. He later

learned that the item was part of a homemade silencer. Officer Schmit

subsequently removed the other items stored along the I-beam. In all, he

recovered 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 Weinbender

was charged with unlawful possession of a silencer in violation of 26

U.S.C. §§ 5861(c) and 5871. Weinbender moved to suppress the evidence

seized from his basement closet, but his motion was denied. He

subsequently pled guilty conditioned upon his right to appeal the district

court’s denial of his motion to suppress.

In this appeal, Weinbender claims that the police exceeded the

authority and scope of the search warrant when the officer removed drywall

and two pieces of wood in an attempt to find clothing and shoes from an

alleged crime occurring 28 months before the search. 
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He also claims that the seizure of the items was not justified by the

“plain view” doctrine because the officers were not lawfully in a position

to view the items and the officers did not realize the incriminating nature

of the items at the time they were observed. He thus argues that the

evidence should be suppressed.

The denial of a motion to suppress is reviewed de novo. See United

States v. Morgan, 91 F.3d 1193, 1195 (8th Cir. 1996); Ornelas v. United

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 of

historical fact only for clear error and to give due weight to inferences

drawn from those facts by resident judges and local law enforcement

officers.” Ornelas, U.S. at , 116 S.Ct. at 1663, 134 L.Ed.2d 911.

Whether officers exceeded the scope of a warrant during a search is

reviewed de novo. United States v. Becker, 929 F.2d 442, 446 (9th Cir.),

cert. denied, 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 lawful search extends to all areas and containers in which the

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 220

(1991). However, “[t]he manner in which a warrant is executed is always

subject to judicial review to ensure that is does not traverse the general

Fourth Amendment proscription against unreasonableness.” Hummel-Jones v.

Strope, 25 F.3d 647, 650 (8th Cir. 1994).

In this case, the search warrant authorized officers to search the

entirety of Weinbender’s home for the specified items. Moreover, the

officers had been informed that “hiding places,” including under the

basement stairs, were utilized by Weinbender. 
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The space along the I-beam was sufficiently large to permit any of the

listed items to be stored there. Furthermore, the evidence does not

support Weinbender’s argument that Officer Schmit engaged in the

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 pretty

easily and behind it was a compartment that contained the items

which are the subject of this prosecution. And so it seems to

me that under those circumstances, we’re not talking about

pulling nails out of the wall or taking ceilings down or walls

down,. . . .

See Suppression hearing transcript, at 110.

In light of the information possessed by the searching officers, the

relative ease with which the officer removed the drywall and the reasonable

probability of finding the sought for items hidden behind the drywall, the

actions of Officer Schmit were reasonable. 

Weinbender also argues that the seizure of the homemade silencer was

not justified under the plain view doctrine. The plain view doctrine

permits law enforcement officers to “seize evidence 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)).
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In this case, the law enforcement officers gained access to

Weinbender’s residence under a properly issued warrant. See United States

v. Murphy, 69 F.3d 237, 242 (8th Cir.), cert. denied, U.S. , 116

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, the

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 item

had to be removed. Thus, Officer Schmit did not violate the Fourth

Amendment in removing the items from their secret storage place along the

I-beam.

When Officer Schmit pulled the first metal object from its resting

spot along the I-beam, he believed that it was a pipe bomb. He later

learned the object was part of a homemade silencer. “The ‘immediately

apparent’ requirement means that officers must have ‘probable cause to

associate the property with criminal activity.’” United States v. Hatten,

68 F.3d 257, 261 (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.), cert. denied 498 U.S. 1068, 111 S.Ct. 787, 112 L.Ed.2d

849 (1991)). “Probable cause demands not that an officer be ‘sure’ or

‘certain’ but only that the facts available to a reasonably cautious man

would warrant a belief ‘that certain items may be contraband or stolen

property or useful as evidence of a crime.’” Id., (quoting Garner, 907 F.2d

at 62, in turn quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535,

1543, 75 L.Ed.2d 502 (1983)).

Here, the incriminating character of the object was immediately

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 the probable cause. See Murphy, 69 F.3d at 242 (“Regardless of

whether the chemicals were used for manufacturing drugs or explosives,

their incriminating nature as contraband was immediately apparent to

officers entering the house.”). Thus, the seizure of the homemade silencer

was justified under the plain view doctrine.

In conclusion, the district court did not err in denying

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.