                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 22 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                    No. 96-5263
                                                 (D.C. No. 95-CR-45-1-B)
 ARLAND DEON GAINES, a/k/a                             (N.D. Okla.)
 Arland Deon Williamson,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Submitted on the briefs. **

Stephen C. Lewis, United States Attorney and Lucy O. Creekmore, Assistant
United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

C. Rabon Martin of Martin & Associates, Tulsa, Oklahoma, for Defendant-
Appellant.


Before PORFILIO, BRORBY and KELLY, Circuit Judges.


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      **
          After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
      In August 1996, a jury convicted the Appellant, Mr. Gaines, on one count

of Possession of a Controlled Dangerous Substance (cocaine base) with Intent to

Distribute in violation of 21 U.S.C. § 841(a)(1), and two counts of Possession of

a Firearm After Former Conviction of a Felony in violation of 18 U.S.C. § 922(g).

Mr. Gaines now appeals his conviction, claiming the trial court erred when it

denied his motion to suppress evidence. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.



      On November 9, 1995, Tulsa, Oklahoma police officers secured a warrant

to search the residence at 3323 East Ute Street for "[f]irearms, ammunition, and

records indicating the sale or purchase of firearms, [and] papers showing

residency." Tulsa County District Court Judge, the Honorable Peter Messler,

issued the search warrant on the basis of Officer Spitler's affidavit recounting

information provided by a past proven reliable confidential informant, as well as

information garnered during Officer Yelton's and Officer Spitler's two- to three-

month surveillance of the East Ute Street residence prior to their application for

the search warrant.



      With the search warrant in hand, together with an outstanding felony

warrant for Mr. Gaines' arrest for Possession of a Firearm After Former


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Conviction of a Felony, Tulsa Police Department officers returned to the East Ute

Street residence. While surveilling the residence, the officers observed Mr.

Gaines exit along with three other individuals. The officers then approached the

residence and arrested Mr. Gaines without incident. After serving Mr. Gaines

with a copy of the search warrant, the officers proceeded to the front door where

they knocked and announced their presence and their purpose. Upon receiving no

response, they entered and secured the residence and began their search. The

officers discovered a loaded Glock .9 mm. semi-automatic pistol underneath the

mattress of the bed in the southeast bedroom. Further search of the southeast

bedroom produced a purple "Crown Royal" bag which contained several

"suspected rocks of crack cocaine." The officers discontinued their search at that

point so they could apply for and obtain a narcotics search warrant. Upon

receiving the second warrant, the officers continued their search and recovered

several items from the residence pursuant to both search warrants.



      After his arraignment and prior to trial, Mr. Gaines filed a Motion to

Suppress Evidence, which generally alleged the described search violated his

Fourth Amendment Rights. In his Post-Hearing Memorandum, Mr. Gaines more

specifically argued the first warrant was issued without probable cause; the first

warrant was overbroad and became a general warrant since it authorized a search


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for ammunition; the police exceeded the scope of the first warrant by looking

inside the "Crown Royal" bag; the seizure of the crack cocaine cannot be justified

as a plain view seizure; and, finally, the police illegally served the second warrant

after dark. The district court rejected each of these arguments, denied Mr.

Gaines' motion and allowed the prosecution to present evidence obtained during

the search to the jury.



      On appeal, Mr. Gaines essentially repeats the arguments he presented to the

district court. He claims the district court erred in denying his Motion to

Suppress evidence obtained during the search of the East Ute Street residence

because: (1) the first warrant was issued without probable cause, (2) the first

warrant was a general warrant, (3) the seizure of the "Crown Royal" bag was

unauthorized by the warrant and did not satisfy the plain view exception, and (4)

the Tulsa police illegally served and unlawfully executed the second search

warrant after dark. We consider each of Mr. Gaines' arguments in turn, viewing

the evidence in a light most favorable to the district court's ruling. United States

v. Mendez, 118 F.3d 1426, 1429 (10th Cir. 1997). We must uphold the district

court's findings of fact unless they are clearly erroneous. Id. However,

determinations as to the reasonableness of the search under the Fourth

Amendment or other conclusions of law are subject to de novo review. Id.


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      We first consider Mr. Gaines' claim the original search warrant lacked

probable cause because officer Spitler's affidavit did not contain information that

Mr. Gaines actually possessed a firearm within the residence identified in the

search warrant and did not state when or where Mr. Gaines supposedly possessed

a firearm. Mr. Gaines further claims the information in officer Spitler's affidavit

concerning the existence of an outstanding warrant and Mr. Gaines' alleged gang

affiliation was irrelevant to a finding of probable cause to search the East Ute

Street residence.



      The Fourth Amendment mandates that search warrants be supported by

probable cause supported by oath or affirmation. U.S. Const. amend IV; United

States v. Cusumano, 83 F.3d 1247, 1249-50 (10th Cir. 1996). However, the

issuing judge's determination that probable cause exists is entitled to "great

deference." Id. at 1250. Upon review of that determination, we ask only whether,

under the totality of the circumstances presented in the affidavit, the issuing judge

had a "substantial basis" for finding a fair probability that contraband or evidence

of a crime would be found upon execution of the warrant. Id.



      In this case, officer Spitler's affidavit stated a confidential informant,

proven to be reliable on at least five previous occasions, advised officer Spitler


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that Mr. Gaines was in possession of a chrome plated 9 mm. semi-automatic

pistol. The confidential informant further advised officer Spitler he/she had been

inside the East Ute Street residence within the past seventy-two hours and had

observed Mr. Gaines' roommate with a semi-automatic pistol. Officer Spitler

affirmed he personally had surveilled the East Ute Street residence, and had

observed Mr. Gaines at that residence, occasionally in the company of several

known member of the "Bloods" gang. Officer Spitler also had personal

knowledge that Mr. Gaines previously had been convicted for Possession of

Controlled Dangerous Drugs, and had an outstanding felony warrant for

possession of a firearm. This evidence, viewed as a whole, is relevant to and

provided substantial support for Judge Messler's conclusion there was a fair

probability that contraband or evidence of a crime would be found in the East Ute

Street residence.



      Given the nature of the property to be seized, additional information

pinpointing when and where the confidential informant observed Mr. Gaines in

possession of a semi-automatic pistol was not critical to Judge Messler's finding

of probable cause. Firearms and ammunition are reasonably expected to be kept

at an individual's home or on their person for an extended period of time. See

United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986). Thus, it was enough


                                        -6-
the confidential informant had observed a semi-automatic pistol in Mr. Gaines'

residence only days before the execution of the warrant. We find no error in the

district court's determination the original warrant was amply supported by

probable cause.



      We move next to Mr. Gaines' claim the first search warrant was overbroad

and constituted a "general" warrant in contravention of the Fourth Amendment

requirement that a search warrant describe the things to be seized with

particularity. Mr. Gaines specifically argues since it is not illegal for him to

possess ammunition "the search warrant which allowed for the search of

ammunition became overbroad when it allowed or gave the officers discretion to

open bags which they knew did not contain ammunition."



      It is true, a warrant may leave nothing to the officer's discretion as to what

is to be seized and must prevent the executing officer from generally rummaging

through a person's belongings. Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir.

1997). However, the test applied to determine whether the description of property

to be seized was sufficiently particular is a practical one: Does the description

enable the searcher to reasonably ascertain and identify the things authorized to

be seized? Id. The warrant at issue easily passes this test.


                                          -7-
      The warrant directed officers to search for and seize: "Firearms,

ammunition, and records indicating the sale or purchase of firearms, papers

showing residency." This description was sufficiently narrow to proscribe a

general exploratory search of Mr. Gaines' residence. Moreover, the presence of

ammunition would be indicative of the presence of firearms -- the ultimate goal of

the search. The described property therefore was directly related to the alleged

criminal activity, even if the possession of ammunition, alone, was not illegal.

Finally, the testimony at the suppression hearing does not support Mr. Gaines'

claim the officers knew the "Crown Royal" bag did not contain ammunition. To

the contrary, Corporal Young specifically stated he did not feel the bag to

determine its contents prior to opening it. For these reasons, we hold the first

warrant to search the East Ute Street residence was not an invalid "general"

warrant, and the officers were justified in searching the "Crown Royal" bag and

any other location where ammunition, ownership papers, or firearms themselves

might be found.



      Mr. Gaines' further argues the seizure of the cocaine was not allowed under

the "plain view" exception to the Fourth Amendment because the officer had

determined the "Crown Royal" bag did not contain a firearm or ammunition

before he opened it, and because without testing the contents of the bag the


                                         -8-
officer could only suspect the bag contained a controlled drug. This argument is

totally without merit.



      As stated above, Corporal Young unequivocally testified he did not feel the

bag to determine its contents prior to opening it. Given that the bag could have

contained objects described in the search warrant, Corporal Young had no

obligation to feel the bag prior to opening it. Corporal Young also stated that

upon opening the bag, his five years as a narcotics investigator as well as training

and observation of narcotics on the street led him to believe the bag contained a

controlled substance. Because the police officers were lawfully inside Mr.

Gaines' residence to search for firearms, had lawful access to the "Crown Royal"

bag to search for ammunition, and the incriminating character of the bag's

contents was immediately apparent to Corporal Young -- i.e., Corporal Young had

probable cause to believe the bag contained contraband -- the officers were

authorized to seize the bag and its contents under the "plain view" doctrine. See

United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996).



      Having held the search and seizure of the "Crown Royal" bag was

authorized under the "plain view" doctrine, without the necessity of obtaining the

second warrant, we need not address Mr. Gaines' claim the second search warrant


                                         -9-
was unlawfully executed after dark. For the foregoing reasons, we hold the

district court did not err in denying his Motion to Suppress and AFFIRM Mr.

Gaines' conviction.



                                     Entered for the Court



                                     WADE BRORBY
                                     United States Circuit Judge




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