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United States v. Tot.

October 28, 1942

UNITED STATES
v.
TOT.



Appeal from the District Court of the United States for the District of New Jersey; Thomas Glynn Walker, Judge.

Author: Goodrich

Before MARIS and GOODRICH, Circuit Judges, and BARD, District Judge.

GOODRICH, Circuit Judge.

The defendant, Frank Tot, was convicted and sentenced for violation of the statute known as the Federal Firearms Act, 15 U.S.C.A. ยง 901 et seq., by which it is made unlawful for any person who has been convicted of a crime of violence "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce * * * ."*fn1 That defendant had been previously convicted of a crime of violence, as defined in the Act, is undisputed. He was arrested by federal officers at his home in Newark, N.J., on a warrant charging theft of cigarettes from an interstate shipment. A .32 caliber Colt Automatic pistol, was found in his place of residence at the time of the arrest, which took place on September 22, 1938. In this appeal the appellant raises several questions of difficulty and importance concerning the statute cited.Additional facts necessary for presentation of the legal questions involved will be made in connection with the question to which they are relevant.

Search and Seizure.

At various stages of the proceedings after his arrest, appellant made timely motions for the suppression and return of the gun and that any evidence pertaining to it, which had been admitted over his objection, be stricken. All of these motions were denied. Their basis was the appellant's contention that the gun had been obtained in violation of his constitutional guarantee, under the Fourth Amendment, against unreasonable searches and seizures.

Since what the Constitution prohibits is unreasonable search and seizure it is inevitable that the courts are confronted with marginal cases and that sometimes the line between what is held reasonable in one case and unreasonable in another becomes faint. Some searches and seizures incident to a lawful arrest are permitted; others are not.*fn2 The facts presented here, however, do not show a case close to the line where our result would be indicated only by a careful analysis and differentiation among authorities by which we are bound. We are not here confronted with the problem of the propriety of the seizure if the officers had found a quantity of cigarettes about the accused's premises and seized them as evidence of his complicity in the crime with which he was charged in the warrant of arrest. Still less are we concerned with the legality of a seizure of some article of contraband like a package of opium or a container of untaxed alcohol. The only article seized here was the gun. Undoubtedly upon Tot's arrest under a valid warrant, as this was, his person could have been searched and the weapon taken from him.*fn3 The same privilege to search the place where the arrest is made "in order to find and seize things connected with the crime as its fruits * * * , as well as weapons and other things to effect an escape from custody, is not to be doubted."*fn4

The serving of the warrant and the taking of the gun by the officers were practically a contemporaneous transaction. The evidence shows that Tot was asked if he had a gun and that he replied in the affirmative. He stated that it was in the pocket of his coat which was hanging in a wardrobe closet in his bedroom. Whether this conversation took place in the kitchen, where the arresting officers entered or the adjoining bedroom, is disputed. We think it does not matter. There was also testimony that Tot offered to get the gun himself and that this unusual offer was declined by the officers, one of whom went to the closet, found the coat, removed the gun and took possession thereof. It might well be said that defendant's offer to produce the gun constituted a consent on his part to its taking by the officers. Regardless of this, however, we think it apparent that the seizure in this case is clearly within in the rule stated by the Supreme Court as one not to be doubted under which weapons and other things which may be used to effect an escape from custody may be seized without a search warrant upon a lawful arrest.

A general search of the premises was made, however, and the only warrant the officers had was the one for the arrest of the accused. If we assume, solely for the purpose of discussion, however, that the search was wider than constitutional limitations permitted, does this invalidate the arrest and the seizure of the weapon which was otherwise lawful as an incident to the arrest? The analogy at once suggested is the ancient doctrine of trespass ab initio by which subsequent misconduct of a party entering under license given by law may render the original entry toritous. Even so, however, this doctrine does not invalidate the doing of an act for the accomplishment of which the privilege exists.*fn5 Nor is it applicable to criminal prosecutions brought by the United States.*fn6 Our conclusion is that under the facts of this case the defendant may not complain of violation of constitutional rights in the search and seizure of the gun, and the overruling of his various motions and objections based on this theory were correct.

Meaning of the Statute.

Appellant's second contention is that the correct construction of the statute does not include the gun which was in his possession at the time of his arrest. In defining the term "firearm" the Congressional language states that it "means any weapon, * * * which is designed to expel a projectile * * * by the action of an explosive and a firearm muffler or firearm silencer, or any part or parts of such weapon."*fn7

The pistol here in question was not equipped with a silencer nor is there, according to the testimony of the government's expert, a commercially made silencer for this .32 caliber weapon. It is conceded, however, that a silencer could be made for it and there is evidence of a demonstration of the successful fitting and operation of a made-over .25 silencer on a gun of the same make, model and caliber. The appellant's argument is that the plain words of the statute, in which the conjunctive "and" is used instead of the disjunctive "or" or a combination of the two, limits the application of the statute to guns which are provided with a silencer, or where one may readily be applied. This being the plain meaning, he says, and the statute a penal one, resort should not be had to extrinsic sources like Treasury Regulations or legislative debates and hearings to give it some other meaning.

If the premise of plain meaning were acceptable, there is something to be said for the suggested conclusion. We do not agree with the appellant's argument about the plain meaning. The statute as a whole indicates an ambitious plan for dealing with firearms in interstate commerce. The very sentence upon which appellant relies shows, in the last phrase, the intent of Congress to deal with the parts as well as the whole. The appellant's interpretation of the language requires the word "and" to be read as "combined with". This, it seems to us, is quite a jump from plain meaning. It is a much narrower construction than we believe Congress meant in view of the statute as a whole and the concluding clause of the sentence referred to.

That Congress had no such narrow limitation in mind is clear from the discussion of the statute prior to its passage.Both the proponents and opponents of the Act thought of its provisions in the broadest terms, applicable to a "gun of any type", "firearms of all kinds", etc.*fn8 This reference is not made to put in the statute something which is not there. But, it is a matter ...


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