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UNITED STATES v. BLAKENEY

December 16, 1983

UNITED STATES OF AMERICA, Plaintiff
v.
JEROME F. BLAKENEY, Defendant



The opinion of the court was delivered by: GREEN

 GREEN, District Judge

 This matter is before the Court on defendant's motion to suppress tangible evidence, the Government's opposition thereto, and the entire record herein. The Court held a hearing on defendant's motion to suppress tangible evidence and heard testimony from Special Agent John R. Seiler of the Bureau of Alcohol, Tobacco and Firearms, Detective Donald Lyddane of the Metropolitan Police Repeat Offender Unit, and defendant Jerome F. Blakeney. For the reasons stated below, the Court grants in part and denies in part defendant's motion to suppress tangible evidence.

 STATEMENT OF FACTS

 On September 8, 1983, officers from the District of Columbia Metropolitan Police Department Repeat Offender Unit, along with Special Agent John R. Seiler of the Bureau of Alcohol, Tobacco and Firearms, executed a valid search warrant. The warrant was for the seizure of drugs, specifically, marijuana and PCP. The warrant was issued for the premises of 4331 Fourth Street, S.E., Apartment 10. At the time the warrant was issued, the police officers did not know the identity of the occupant of Apartment 10. The only prior knowledge that the police had concerning the identity of the person who occupied the apartment was that he was called "Jerome."

 When the police executed the warrant, no one was present at Apartment 10. The police were therefore required to make a forcible entry into the apartment. Upon entering, the police discovered lying on a small stand, in plain view, a Model Blackhawk,.44 magnum, Strum Ruger revolver. The police, however, did not take possession of the weapon. Upon further investigation in their search for drugs, the police also discovered in defendant's bedroom leaning against a wall, a Remington, bolt-action,.30 caliber rifle. Also located in defendant's bedroom on a "T.V. stand" was a Colt Mark IV,.45 caliber semi-automatic pistol. At that time, these weapons were also not taken into possession by the police.

 During the search for drugs, police found defendant's certificate of parole which was located in defendant's briefcase. The briefcase was located on the floor next to defendant's bed. No drugs were found in defendant's briefcase. Based on discovery of the certificate of parole, observation of other papers that disclosed defendant's identity in their search for drugs, and observation of weapons that were lying in plain view, the police believed that they had sufficient probable cause to make a records check on defendant's status. The records confirmed that defendant was convicted of a felony and so the weapons were seized. Upon completion of the search, the police also discovered and seized approximately three pounds of marijuana. No PCP was recovered.

 Following the search of Apartment 10, an arrest warrant was issued for defendant. The police went to Mr. Blakeney's place of employment at 1000 Constitution Avenue, N.W. Upon arriving at that location, the police officers went to Security who in turn took them to Personnel. Defendant was then summoned to the Personnel Office where he was searched and placed under arrest. The search produced seven "nickel bags" of marijuana. After the arrest and while defendant was still at his place of employment, the police officers requested his consent to search his locker. They stated that if defendant refused, they would get a search warrant within the hour. Defendant consented to the search of his locker, believing that he had no other alternative. It is plain from the testimony, however, that this consent was attained from defendant while he was under arrest and without the benefit of having his Miranda rights read to him. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The search of defendant's locker produced approximately six additional "nickel bags" of marijuana.

 CONCLUSIONS OF LAW

 Defendant seeks to suppress all the weapons discovered at his home, as well as the marijuana that was discovered in his locker at work. The Court denies the portion of defendant's motion to suppress the weapons found in his home, but grants the portion of his motion to suppress the marijuana discovered in his locker. The Court will address each issue separately.

 Suppression of the Weapons Seized in Defendant's Apartment

 Defendant seeks to suppress the weapons found in his apartment because, he argues, this seized evidence went far beyond the scope of the authorized search and further is not covered under the plain view exception to the warrant requirement.

 It is plain that the fourth amendment protects individuals against unreasonable searches and seizures by the Government. It is also plain that under the fourth amendment, a neutral and detached magistrate may issue a warrant upon a finding of probable cause. E.g., Steagald v. United States, 451 U.S. 204, 212, 68 L. Ed. 2d 38, 101 S. Ct. 1642 (1981). It is necessary that the warrant issued describe with sufficient particularity the place to be searched and the things to be seized. Marron v. United States, 275 U.S. 192, 196, 72 L. Ed. 231, 48 S. Ct. 74 (1927). Generally, if police officers seize evidence that is not specified in the warrant, a court may suppress that evidence because it is beyond the scope of the authorized search. See Ybarra v. Illinois, 444 U.S. 85, 91-92, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979) (heroin discovered during a pat-down of bar patron suppressed where warrant only authorized search of tavern and its bartender.)

 This general rule, however, is not without exceptions. One such exception is the seizure of evidence that is in plain view. The plain view exception to the warrant requirement permits the seizure of evidence discovered by police when there is independent prior justification for being present at the point of observation, when perceived items' evidentiary value is readily apparent, and when the discovery is inadvertent. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971) (plurality opinion). ("The 'plain view' ...


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