United States of America, Plaintiff-appellant, v. Norman Olt, Defendant-appellee, 492 F.2d 910 (6th Cir. 1974)

Arthur B. Lara, Jr., Dept. of Justice, Washington, D.C., for appellant; William W. Milligan, U.S. Atty., Anthony W. Nyktas, Asst. U.S. Atty., Cincinnati, Ohio, on brief.

Anthony Valen, Middletown, Ohio, on brief for appellee.

Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and ROSENSTEIN,¹  Senior Customs Judge.

ROSENSTEIN, Senior Customs Judge.

The issue presented herein is whether the information contained in an affidavit established probable cause for issuance of a search warrant. The lower court found the affidavit insufficient and sustained appellee's motion to suppress. We reverse.

A copy of the affidavit is attached hereto as an appendix. Based on the information contained therein, a magistrate of the Butler County, Ohio, Common Pleas Court issued a warrant providing for the search of:

'The residence at 4103 Harris Road, . . . and the adjacent and attached apartment residence at 4105 Harris Road, both apartments comprising the entire building.'

Execution of the warrant by federal and state law enforcement officers resulted in the seizure of 36,650 tablets of barbiturates and phenobarbital at appellee's residence at 4105 Harris Road, Oxford, Ohio. Appellee was subsequently indicted by a Federal Grand Jury charging violation of 21 U.S.C. 841(a) (1).

Thereafter, he moved the lower court to suppress the seized illegal drugs on the grounds, (1) that the affidavit failed to establish probable cause for the issuance of the search warrant, and (2) that the affidavit lacked specification as to time. In sustaining appellee's argument relating to probable cause, the lower court, in the Order appealed from, stated that:

'As indicated above, from the affidavit the Judge could only have probable cause to believe that the fifty pounds of marijuana was located at 4103 or 4105 Harris Road-- one or the other-- but not both. The affidavit shows probable cause for one of two, but not the two, and not which one of the two.'

Appellee's second argument relating to specification of time was overruled.

The following principles are applicable to a warrant directing the search of two or more dwellings:

'For purposes of satisfying the Fourth Amendment, searching two or more apartments in the same building is no different than searching two or more completely separate houses. Probable cause must be shown for searching each house or, in this case, each apartment. If such cause is shown there is no reason for requiring a separate warrant for each resident. A single warrant may cover several different places or residences in a single building. But probable cause must be shown for searching each residence unless it be shown that, although appearing to be a building of several apartments, the entire building is actually being used as a single unit.' United States v. Hinton, 219 F.2d 324, 325-326 (7th Cir. 1955); United States v. Higgins, 428 F.2d 232, 235 (7th Cir. 1970).

To determine if the affidavit established probable cause for the search of 4105 Harris Road, the guidelines announced in United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965), must be applied:

'The Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.' 380 U.S. at 108, 85 S. Ct. at 746; United States v. Harris, 403 U.S. 573, 577, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1970).

While Harker's reference in the affidavit to the fact that the marijuana was located at his 'neighbors' may be lacking in specificity, it is capable of being interpreted in such a fashion to mean that the marijuana was located at both of his neighbors. Moreover, when this allegation is construed in a non-negative non-grudging sense together with the remaining facts in the affidavit indicating a strong connection between all of the residents involved, it appears that the magistrate was not acting arbitrarily or unreasonably in issuing the warrant providing for the search of 4103 and 4105 Harris Road, see Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973).

In keeping with the teachings of Ventresca, Harris and Bastida, we find that too narrow a construction was given the affidavit by the lower court. Accordingly, we rule that the affidavit did contain sufficient information to establish probable cause for the search warrant.

Since appellee cannot cross-appeal in a 18 U.S.C. 3731 proceeding, we do not reach the issue of specification of time.

Reversed and remanded.