The opinion of the court was delivered by: MARSH
Defendant, Fletcher Earl Jones, is charged in a four-count indictment with: possessing a firearm after being convicted of felonies in violation of 18 U.S.C.App. § 1202(a); possessing a firearm transferred to him without payment of the transfer tax (26 U.S.C. § 5811); and without filing a written application with the Secretary of the Treasury (26 U.S.C. § 5812) in violation of 26 U.S.C. §§ 5861(b), 5871; possessing a firearm made without the filing of a written application form with the Secretary of the Treasury (26 U.S.C. § 5822) in violation of 26 U.S.C. §§ 5861(c), 5871; and possessing a firearm which had not been registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5861(d), 5871. At a non-jury trial held on October 5, 1973, it appeared that the offending firearm is a 12-gauge Iver Johnson shotgun which had been so modified as to be correctly described as a sawed-off shotgun; that said firearm had travelled in interstate commerce, was operational, and was regulated by the statutes enumerated in the indictment; that defendant had been convicted of three felonies in the State of Pennsylvania prior to April 2, 1973; that the firearm in question was not registered to, or acquired by lawful making, transfer, or importation by defendant; and that defendant was in possession of said firearm on April 2, 1973.
The above facts are undisputed. Therefore, the defendant is adjudged guilty of the four counts in the indictment.
Prior to the trial the defendant filed a motion to suppress as evidence the shotgun seized on April 2, 1973 pursuant to a search warrant (DX B). Testimony was taken, after which the court orally denied the motion to suppress (Tr., p. 49), and the sawed-off shotgun seized pursuant to the search was admitted into evidence at the trial as GX 4 (Tr., p. 58). At the conclusion of the trial defendant's counsel requested time to argue the suppression issue. Defendant was granted permission to brief the new issues raised by the evidence adduced at the hearing on the motion to suppress (Tr., pp. 64-67). Upon due consideration of the briefs of the parties, it is our opinion that it was not error to deny the motion to suppress and admit the firearm into evidence at the trial.
The facts involving the search and seizure of the firearm are as follows: On March 30, 1973, United States Magistrate Robert C. Mitchell issued a search warrant (DX A) authorizing a search "at any time in the day or night by 10 P.M. Saturday March 31, 1973" of one 1970 Lincoln Continental. This warrant was based upon the following sworn affidavit of Special Agent Robert L. Maffett:
"On March 29, 1973, at about 4:00 PM at the intersection of Centre Avenue and Kirkpatrick Street while keeping Fletcher Earl Jones under surveillance in my duties as a special agent of the Bureau of Narcotics and Dangerous Drugs, I was standing about ten-fifteen feet from Jones and others by the above-described vehicle, Jones stated that he was going to protect himself from being 'ripped off.' He said he always kept his 'piece' with him. He then said, 'you want to see my piece.' He then opened his trunk and I observed a pistol. I believe there to be a violation of Title 18, United States Code, Section 1202(a) Appendix as Jones is a convicted felon. Jones has been convicted of Auto Larceny, Auto Burglary, Carrying a Concealed Weapon, Burglary and Receiving Stolen Goods.
"Jones is known to be a narcotic trafficker and surveillance efforts to locate Jones during daylight hours have generally proved negative. However, Jones has been observed in Pittsburgh generally during early evening through night time hours."
This warrant expired by its own terms before the officers could locate and search the described automobile.
On April 2, 1973, a second warrant (DX B) was issued by Magistrate Mitchell based upon the same sworn facts as set out in the affidavit for the first warrant, plus the following additional facts:
"On March 30, 31, and April 1, 1973, surveillance was conducted on known residence of Fletcher Earl Jones, 1825 Bedford Avenue, Pittsburgh, Pennsylvania. The 1970 Lincoln Continental was not seen. Surveillance was discontinued April 1 at 2:00 p.m. During this period, areas where Fletcher Jones is known to frequent were also checked periodically and the 1970 Lincoln Continental, Pennsylvania Registration License Number OCO934 was not seen. On April 2, 1973, a check was made on the residence of Fletcher Jones, 1825 Bedford Avenue, Pittsburgh and the 1970 Lincoln Continental was observed. On April 2, 1973, surveillance was conducted at 9:00 a.m.
"On April 1 and 2, 1973, observations were made by Special Agent William Wildrick, Bureau of Alcohol, Tobacco and Firearms. On April 2, 1973, Special Agent Wildrick observed the 1970 Lincoln Continental in front of the residence of Fletcher Jones, 1825 Bedford Avenue, Pittsburgh, Pennsylvania at 9:00 a.m."
The second warrant authorized only a daytime search of defendant's automobile on April 2, 1973. This warrant was successfully executed resulting in the seizure of the sawed-off shotgun introduced as evidence at the trial. This was the same firearm which Agent Maffett ...