The opinion of the court was delivered by: CLARY
The defendant in the above case has filed a motion for suppression of evidence as being the fruit of an alleged illegal search.
The defendant is charged in a two-count indictment with the possession of firearms in violation of the National Firearms Registration and Transfer Act, 26 U.S.C. §§ 5841, 5861, and 5871.
Early that evening, the police armed with the search warrant and apparently an arrest warrant on a charge of breaking and entering, executed the search. Upon searching defendant's apartment, the police were unable to locate any of the articles named in the warrant. They did, however, find other stolen checks, and during a search of a closet, they located a sawed-off shotgun, and a pipe bomb. The officers seized the shotgun and called an Army Bomb Disposal Unit to disarm the bomb.
Defendant first contends that the search warrant was invalid as the facts set forth were inadequate to authorize the issuance of a search warrant.
At the hearing before the State Court, Lieutenant Reeder of the Metuchen Police Department testified that a sales clerk identified the defendant from among a group of pictures as being the purchaser who had passed one of the Wells' checks. She and the clerks at the other stores where the checks were passed identified the purchaser as wearing a blue jersey with white numerals.
From these and other facts recorded at the application hearing, I am of the opinion that the State Court took adequate precautions and received adequate evidence to support the issuance of a search warrant.
Defendant secondly contends that the warrant being executable "at any time" was invalid under the above stated facts.
In testimony before this Court, the police officers stated that they executed the warrant at approximately 8:30 P.M. They also testified that the lighting was sufficient to recognize the facial features of the defendant, and for the defendant to read the warrant.
Decisional law in this area reveals that the exact moment of sunrise and sunset is not controlling. See 26 A.L.R. 3d 951, 975 (1969). Federal decisions have sustained searches as long as twenty minutes after sundown. Pugliese v. United States, 343 F.2d 837 (1st Cir. 1965), United States v. Gosser, 339 F.2d 102 (6th Cir. 1964), and United States v. Woodson, 303 F.2d 49 (6th Cir. 1962).
Finding that the warrant was executed while sufficient daylight remained, the question of whether the issuing judge was warranted in permitting a search "at any time", need not be considered. Johnson v. United States, 46 F.2d 7 (6th Cir. 1931), United States v. Fitzmaurice, 45 F.2d 133 (2nd Cir. 1930), and United States v. Callahan, 17 F.2d 937 (M.D. Pa. 1927).
Defendant's last contention is that since the articles seized were not described in the warrant, ...