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United States v. Busk

November 16, 1982

UNITED STATES OF AMERICA
v.
BUSK, JAMES W., A/K/A BUSKI JAMES W. BUSK, APPELLANT; UNITED STATES OF AMERICA V. JAMES W. BUSK, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Gibbons, Weis and Sloviter, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge.

James W. Busk is before us on separate appeals from judgments of sentence entered following two convictions. One conviction, No. 82-1101, is on four counts of an eight count indictment for willfully attempting to evade payment of the excise tax on wages and the special occupational tax on wagering activity. 26 U.S.C. § 7201 (1976). The other, No. 82-1144, is for conducting an illegal gambling enterprise. 18 U.S.C. §§ 1955 and 2 (1976). Busk's principal contention, common to both appeals, is that both trial courts erred in denying his motion to suppress the fruits of a search of an apartment at 3123 Richmond Street, Philadelphia, Pa., conducted on February 20, 1981, as well as materials seized from his person when he was detained before and during that search. The search was made pursuant to a warrant which, Busk contends, did not, as required by the fourth amendment, particularly describe the place to be searched. His detention, he contends, was an illegal arrest within the meaning of Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981). We conclude that the search warrant was invalid. Thus we reverse and remand for a new trial.

In both cases the courts held suppression hearings. Each hearing dealt with the circumstances surrounding the issuance of a search warrant by a judge of the Philadelphia Municipal Court, and the execution of that warrant. The affidavit presented to the municipal court was by a Philadelphia police officer, Anthony P. Massaro. It disclosed that, as a result of a tip from an informant, premises at 3123 Richmond Street were placed under police surveillance on February 17, 18, and 19; that Busk was seen on each day entering the location and staying approximately one hour; and that a telephone surveillance was conducted between the hours of 11:30 a.m. and 2:00 p.m. on each day, during which hours the phone was continually busy.*fn1 The affidavit is set forth on a form, on the bottom of which is printed the search warrant. The form contains a printed legend:

PROBABLE CAUSE BELIEF IS BASED ON THE FOLLOWING FACTS AND CIRCUMSTANCES

The probable cause information is typed, following the legend, in the space provided. There is no description, in that typed information, of the premises to be searched. Elsewhere on the form is a space containing the printed legend:

SPECIFIC DESCRIPTION OF PREMISES AND/OR PERSONS TO BE SEARCHED (Street and No., Apt. No., Vehicle, Safe Deposit Box, etc.)

The printed warrant directs a search of "the above described premises or person." Thus the language typed in the space provided under this printed legend sets forth the scope of the executing officer's authority. That language is:

3123 Richmond St., 3-story brick row home, (entire property to be searched.)

Another space on the printed form contains the printed legend:

NAME OF OWNER, OCCUPANT OR POSSESSOR OF SAID PREMISES TO BE SEARCHED (If proper name is unknown, ...


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