The opinion of the court was delivered by: GASCH
When this case was called for trial, counsel announced that the defendant wished to waive trial by jury and that the evidence received by the Court on the defendant's motion to suppress and to dismiss might be considered by the Court by stipulation as the evidence on trial if the Court denied defendant's motions. Accordingly, the Court heard the following testimony:
The next witness to testify was Detective Joseph C. Quantrell of the Metropolitan Police Department, who stated that he obtained a search warrant for the entire premises 725 -- 6th Street, N.W., Washington, D.C., which he described as a three-story single family house occupied by the Barno family. During the course of his execution of the search warrant, which was predicated upon a narcotics buy, while searching various bureaus and other places he found a sawed-off shotgun in a bureau in the room occupied by the defendant Ulysses Barno. He had heard prior to the raid that one of the Barnos possessed a sawed-off shotgun. He found this sawed-off shotgun in the bedroom in which Ulysses Barno was lying on a bed with his small child. The sawed-off shotgun was in a brown paper bag; that upon finding the sawed-off shotgun, the barrel of which was slightly in excess of 12 inches long, he arrested the occupant of this room, the defendant Ulysses Barno.
The defense called one Donald Martin, who stated he was present when the police entered and when asked whether they had a search warrant, stated the police had flashed a paper but said they did not need a search warrant. He was not present when the third-floor door leading to Ulysses Barno's room was opened; he heard banging on the door. He does not know in what position the thumb bolt on Ulysses Barno's door was at the time it was opened. He stated the police made him "leave out" when they were searching.
Defendant was charged in a two-count indictment with possession of an unregistered firearm in violation of 26 U.S.C. § 5861 (d) and possession of a prohibited weapon, 22 D.C.Code § 3214 (a). The latter charge was dismissed by the government, and the case proceeded to trial on the first count of the indictment charging violation of 26 U.S.C. § 5861 (d).
The question presented by the defense is two-fold: whether the search warrant obtained by the police is lawful and whether while searching for narcotics under the authority of the search warrant the seizure by the police of the sawed-off shotgun in question was lawful.
The Court finds that there was an adequate basis for the issuance of the search warrant for the entire premises as set forth in the affidavit on the basis of which the United States Magistrate issued the search warrant. Seizure of the prohibited weapon in question by the police while searching for narcotics is a lawful seizure.
When such a weapon is subject to be readily restored to an operable condition within the meaning of the Gun Control Act of 1968, 26 U.S.C. § 5845 (d), possession of such a weapon is in violation of law. The Court accepts the testimony of Col. Westenberger that this weapon could readily be restored to an operable condition. On this testimony, the Court overrules the defense motions and finds the defendant guilty of the charge of possessing an unregistered firearm. See United States v. 16,179 Molso Italian,.22 Caliber Winlee Derringer Convertible Starter Guns, 314 F. Supp. 179, affirmed, 2 ...