The opinion of the court was delivered by: CLARY
This is a preliminary motion by defendant, Nicholas Russo, to suppress two categories of evidence secured by the Federal Bureau of Investigation (hereafter "FBI"). First, the Court is asked to suppress all items seized upon the execution of duly issued search and arrest warrants. Secondly, suppression is sought of all evidence secured by FBI inspection of the records of the Bell Telephone Company.
The relevant facts are as follows: For sometime prior to February 6, 1965, the FBI had inspected records of the Bell Telephone Company regarding calls made from the Cherry Hill, New Jersey, telephone of one Pasquale Monzelli (indicted together with defendant Russo). These calls were made to various telephones in Philadelphia, one of which was in defendant Russo's name. The accounting information secured by these inspections of interstate calls included the dates, telephone numbers, and approximate duration of such calls. It has been stipulated by the parties that this information was not secured pursuant to a subpoena or other Court order. Eventually, warrants for the arrest of defendants Monzelli and Russo on grounds of federal offenses committed in connection with alleged bookmaking activities, and a warrant for the search of defendant Monzelli's apartment were issued. These were based largely on the evidence gained by this inspection of telephone records, but also on the testimony of Special Agent Phelan concerning information from reliable informants and personal observations. At about 4 P.M. on February 6, 1965, defendants were arrested and a search of the apartment commenced. However, before the search was completed, the defendants were taken into custody. The search was completed in their absence. It is claimed by Russo that certain items not specifically described in the warrant were seized in this search in violation of his rights.
Subsequent to the date of the execution of the warrants, subpoenas were issued for the above-mentioned telephone records. The defendants were ultimately indicted for conspiracy to use interstate travel and facilities in aid of a gambling enterprise operated in violation of State law. Both defendants pleaded not guilty to the above charges and defendant Russo alone brought the present motion to suppress.
The first question raised in this motion is whether the FBI, in the execution of the search warrant, violated defendant's rights by seizing certain items not specifically described in the search warrant. The Fourth Amendment states that:
"No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
It is the settled rule that evidence gained by an unreasonable search and seizure must be suppressed, and that police cannot engage in a general exploratory search, even with a warrant. Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S. Ct. 153, 75 L. Ed. 374 (1931); Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647 (1921).
Defendant Russo has moved to suppress all the evidence gained by the search of defendant Monzelli's apartment, on the grounds that at least some of the items were seized without being specifically described in the search warrant. It is assumed that Russo has standing to contest this search. See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697, 78 A.L.R.2d 233 (1960). The warrant in question directed the agents to seize:
"Numbers and bookmaking slips, adding machines, rice paper, flash paper, money and records relating to and used in the business of bookmaking and in accepting bets and wagers and in conducting a gambling enterprise in violation of state law."
Although it is true that a warrant must specifically describe the articles to be seized, this Court has held that less specificity is needed in a warrant to search a gambling establishment than in a search for stolen goods. United States v. Joseph, 174 F. Supp. 539, 544 (E.D.Pa.1959), aff'd 278 F.2d 504 (3 Cir. 1960), cert. denied, 364 U.S. 823, 81 S. Ct. 59, 5 L. Ed. 2d 52 (1960). This is reasonable since officers planning to search a suspected gambling headquarters may be uncertain as to exactly what will be able to be confiscated as the fruits or instrumentalities of the crime. The warrant in the Joseph case was quite similar to the present one, and the latter is sufficiently specific not to be invalid on its face.
Defendant's brief refers to a number of items claimed to have been seized without being particularly described in the warrant (Def. 11). This includes papers and documents found in a black leather folder, a container of papers belonging to one "Joseph Sacreto", and a box containing miscellaneous papers. These are items 10, 11 and 12, respectively, on the return of the search warrant. Since the Government has stated that it does not intend to introduce these papers into evidence (Gov. 14-15), it is not necessary for the Court at this time to decide the lawfulness of their seizure. Moreover, even if the above papers were illegally seized, this would only affect their admissibility, and would not invalidate the entire search. Rule 41(e) of the Federal Rules of Criminal Procedure states that anyone aggrieved by an unlawful search and seizure may move for the return of anything so obtained, and if the motion is granted " the property shall be restored * * * and it shall not be admissible * * *." See United States v. Castle, 213 F. Supp. 52, 56 (D.D.C.1962).
The entire search would only seem to become invalid if its general tenor was that of an exploratory search for evidence not specifically related to the search warrant - a situation not present in this case. The FBI accounted for each item or group of items that it seized. In executing the warrant, it conducted a thorough but careful search for the instrumentalities of this offense.
Defendant also objects to the seizure of two wrenches and an adjustable iron pipe, items 4, 5 and 6. These were not described in the warrant. Very often warrants for the search of gambling establishments list "other paraphernalia and equipment used in gambling". This language is missing in the present document. However, although it is often stated that only articles specifically described can be seized, it has been held in this Court and others that "[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." United States v. Joseph, supra, page 57, 174 F.Supp at 545. See also Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539 (1961), cert. denied, 375 U.S. 888, 84 S. Ct. 167, 11 L. Ed. 2d 118 (1963); 4 Barron, Federal Practice and Procedure, § 2405 (Wright Ed.Supp.1964). The evidence indicates that the wrenches and pipe were used to bar the door and thus to prevent detection and aid escape. They were therefore properly considered instrumentalities of the crime, and had a sufficient relation to the purpose of the search to allow their seizure and admission into evidence without being specifically described in the warrant.
In light of the above reasoning, the fact that the defendants were not present during much of ...