United States of America, Plaintiff-appellee, v. James H. Goyett, Defendant-appellant, 699 F.2d 838 (6th Cir. 1983)

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US Court of Appeals for the Sixth Circuit - 699 F.2d 838 (6th Cir. 1983) Submitted on Briefs Jan. 26, 1983. Decided Feb. 23, 1983

James E. Wilson, Midland, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Michael J. Lavoie, Detroit, Mich., Michael Hluchaniuk, Asst. U.S. Atty., Bay City, Mich., for plaintiff-appellee.

Before EDWARDS, Chief Judge, LIVELY, Circuit Judge and PECK, Senior Circuit Judge.

PER CURIAM.


This is an appeal from a conviction after a jury trial for making a false statement in acquiring a firearm and being a felon in possession of a firearm.

No appellate issues are presented as to either count upon which appellant Goyett was actually convicted. The appeal is taken entirely upon the ground that the firearm in question was seized under an invalid search warrant issued by a state District Judge. The contention is that the application for the search warrant as originally presented was defective in that the cause for its issuance was not within the personal knowledge of the police officer who presented same.

The state District Judge who issued the warrant, however, as we review this record, did exactly what he should have done in refusing to issue the warrant until the actual complaining witness, a 16 year old girl named Karen R. Smith, was brought before him to attest to the facts which had previously been set forth in the officer's statement. This she did under oath, in person, before the District Judge.

The District Judge, after hearing her statement which conformed entirely with the representations on the application for the warrant, had her sign her name on the application. Preferably, of course, he should have gone one step further and written or dictated a statement of her actual testimony. Such a requirement, however, could not be found within the terms of the Fourth Amendment to the U.S. Constitution and this search was clearly a state search.

The judgments of conviction are affirmed for these reasons and those set forth in the memorandum and order of Judge James Harvey, U.S. District Judge.