been made to determine whether the person or persons operating an alleged gambling business had registered or paid the tax required by federal law. See also United States v. Pollack, D.C.N.J.1946, 64 F.Supp. 554.
II. Objection that the Warrant is Invalid because the Premises to be Searched were not Adequately Described
The search warrant discussed herein referred to the premises as No. 209 Court Terrace. The companion warrant identified premises located at 523 Minersville Street. Defendant says that the address at which the agents appeared on June 21, 1958, and through which ingress to the defendant's dwelling was secured, was in fact 209 Minersville Street.
There was testimony that Court Terrace, as a matter of fact, is a continuation of Minersville Street (N.T. p. 57). In any case, if defendant is seriously taking the position that the address is or was insufficient, his argument is doomed to failure by the settled rule that all that is required is that the description suffice to enable the officers to ascertain and identify the place intended by reasonable effort. Steele v. United States, 1925, 267 U.S. 498, 45 S. Ct. 414, 69 L. Ed. 757; United States v. Klaia, 2 Cir., 1942, 127 F.2d 529.
No showing was made that there was any adjoining building likely to be confused with the Joseph premises, regardless of which address or which entrance was specified.
III. Objection that the Warrant did not Adequately Describe the Personal Property Seized
It is not denied by the government that general exploratory searches are forbidden. Go-Bart Importing Co. v. United States, 1931, 282 U.S. 344, 51 S. Ct. 153, 75 L. Ed. 374; Marron v. United States, 1927, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231. Further, items of mere and sole evidentiary value are not subject to seizure. United States v. Lefkowitz, 1932, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877; Gouled v. United States, 1921, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647. The rule as to what material may be seized was stated by the Supreme Court in Harris v. United States, 1947, 331 U.S. 145, 154, 67 S. Ct. 1098, 1103, 91 L. Ed. 1399, as follows:
'This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.'
The search warrant described the property to be seized as 'betting slips, rundown sheets, records and other paraphernalia and equipment which are being used or intended for use' in violation of specified sections of the Internal Revenue Code of 1954. Petitioner argues that this description is 'general, non-descriptive and inadequate to include all of the items of property actually taken.'
First, it must be remembered that in a search of a gambling establishment, the same descriptive particularity is not necessary as in the case, for instance, of stolen goods. Nuckols v. United States, 1938, 69 App.D.C. 120, 99 F.2d 353, 355. Second, and with the possible exception of the money, all of the property seized was clearly within the description contained in the search warrant and all of it was property used or intended for use as the means of committing a criminal offense. Merritt v. United States, 6 Cir., 1957, 249 F.2d 19, 21.
The money seized was also paraphernalia and equipment used and intended for use in violation of law. As was said in another case: 'A sufficient amount of cash to meet the demands of the trade appears to have been a necessary and closely related implement or facility of the wagering business transacted here.' United States v. Currency in Total Amount of $ 2,223.40, D.C.N.D.N.Y.1957, 157 F.Supp. 300, 304; see also United States v. $ 1,508.40, D.C.S.D.Ill.1958, 158 F.Supp. 916. It may be added that even were the money not within the description on the search warrant of the things to be seized, its seizure in these circumstances was still clearly proper. It is permissible to seize things other than those described in the search warrant if they have a reasonable relation to the purpose of the search. Bryant v. United States, 5 Cir., 1958, 252 F.2d 746, 749; Sanders v. United States, 10 Cir., 1956, 238 F.2d 145, 147; Palmer v. United States, 1953, 92 U.S.App.D.C. 103, 203 F.2d 66.
IV. Objection that the Search Warrant was not Properly Served
There are three parts to this objection, each of which will be discussed separately.
A. That Intelligence Agents of the Internal Revenue Service are not Empowered to Execute Search Warrants
This argument cannot be upheld. Defendant submits no case authority, but rests his argument on an implied repeal theory. Section 3602 of the Internal Revenue Code of 1939, which specifically gave the United States District Courts and commissioners authority to issue search warrants authorizing any Internal Revenue officer to search any premises was omitted from the Internal Revenue Code of 1954. In this connection defendant cites Title 26 U.S.C. §§ 7607 and 7608.
This court is not persuaded that there was any repeal by implication. Legislative history of 26 U.S.C. § 7608 may be seen in 1958 U.S.Code Cong. and Adm. News, pp. 4604-4605. Similar contentions have been rejected in Dumbra v. United States, 1925, 268 U.S. 435, 45 S. Ct. 546, 69 L. Ed. 1032; Brown v. Zerbst, 5 Cir., 1938, 99 F.2d 745; and Leonard v. United States, 1 Cir., 1925, 6 F.2d 353.
B. Objection that the Daytime Warrant did not Authorize Search which Continued into the Evening
The evidence at the hearing was uncontradicted that the search began at 4:00 P.M. and ended at approximately 10:30 P.M. Under Federal Rules of Criminal Procedure 41(c) the warrant could only be served in the daytime, since affiant was not positive that the property was on the premises to be searched.
It is clear that only one search was involved. The point has been considered in a number of cases, and the rule seems clear that it is sufficient if the search begins in the daytime, although it continues after dark. United States v. Bell, D.C.1955, 126 F.Supp. 612, 617; Woods v. United States, 1956, 99 U.S.App.D.C. 351, 240 F.2d 37. See also Distefano v. United States, 5 Cir., 1932, 58 F.2d 963 and United States v. Lie brich, D.C.M.D.Pa.1932, 55 F.2d 341.
C. Objections as to Personnel Accompanying the Authorized Officers, and the Manner of Conduct of the Search
The three officers named in the warrant were all present at the search and active in its conduct. The fact that they were assisted by other special agents does not invalidate the search as contended by petitioner. Palmer v. United States, 1953, 92 U.S.App.D.C. 103, 203 F.2d 66; Nuckols v. United States, 69 App.D.C. 120, 99 F.2d 353.
Without citing cases directly in point, petitioner also argues that the conduct of the officers during the search was so unreasonable as to invalidate the search. It is true that a number of the officers and agents were armed, but there was no indication that firearms were drawn or exhibited. In fact, the entire proceeding -- as revealed in the testimony at the hearing -- was conducted without violence or force. It seems clear that the searchers merely took the usual and necessary precautions so that their search would not be interfered with and so that property would not be removed from the house during the course of the search. Searches infinitely more aggressive than the present one have been upheld by the federal courts. Costner v. United States, 6 Cir., 1958, 252 F.2d 496, 498; Barrientes v. United States, 5 Cir., 1956, 235 F.2d 116.
Since the contentions of the defendant petitioner, Peter Joseph, fail on all grounds, it is therefore the Order of this Court that the motion of defendant Peter Joseph for suppression of evidence and return of seized property be and the same is hereby denied.
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