The opinion of the court was delivered by: Simandle, District Judge
On October 6, 2005, federal agents searched Defendant's private residence pursuant to a warrant issued the day before by Judge Joel B. Rosen, U.S. Magistrate Judge. The search uncovered, among other things, a gun which was seized. On November 2, 2005, a federal grand jury sitting in Camden returned a one-count Indictment against Bishop Krabsz, a convicted felon, charging him with knowingly possessing in and affecting commerce a firearm in violation of 18 U.S.C. § 922(g)(1) and 2.
Defendant has moved to suppress the items seized from his residence.*fn1 Defendant does not challenge here the existence of probable cause to believe Defendant committed tax crimes. (Def. Br. at 18.) Instead, Defendant seeks suppression on the grounds that (1) the warrant is an unconstitutional general warrant; (2) there was no probable cause to find the items to be seized at his residence; and (3) the gun was discovered during a second unauthorized search following completion of the initial search.
For the following reasons, the Court rejects Defendant's Fourth Amendment challenges. Accordingly, the motion to suppress will be denied and the Government will be permitted to introduce at trial evidence seized pursuant to the warrant.
This case began as an investigation by the Internal Revenue Service ("IRS") into Defendant Bishop Krabsz and his business partner, Kevin Rankin. Based on information uncovered during the investigation, IRS Special Agent Laura A. Capra prepared a lengthy affidavit in support of search warrants for the following properties: (1) Defendant's private residence in Cherry Hill, New Jersey; (2) Kevin Rankin's private residence in Philadelphia, Pennsylvania; (3) Dangerous Curves, an adult entertainment club located in Philadelphia, Pennsylvania; and (4) a restaurant/bar named the Ashburner Inn located in Philadelphia, Pennsylvania. The Court here is concerned only with the search of the Cherry Hill residence.
The affidavit in support of the search warrant application states that Agent Capra had: probable cause to believe that Kevin Rankin and Bishop Krabsz -- the owners and operators of an adult entertainment club in Philadelphia known as Dangerous Curves and two of the investors in a restaurant/bar in Philadelphia known as the Ashburner Inn -- conspired to defraud the United States, filed materially false personal tax returns for tax years 2001, 2002, 2003 and/or 2004, willfully evaded and failed to account for, withhold, and pay federal payroll taxes for at least some of the employees of Dangerous Curves, structured cash transactions to evade reporting requirements, and/or willfully failed to file certain returns . . . .
The affidavit recites that while Defendant reported total income of less than $50,000 for each of the specified years, he claimed a total income of more than $200,000 for one of those years in connection with a bank loan application.*fn2
Attachment B-2 authorized the search for the following items at Defendant's private residence:
For the period of January 1, 2000 through the present, the following records, documents, materials and/or files, whether in paper form or in the form of computerized electronic data, in the name of, or on behalf of: Kevin Rankin, Bishop Krabsz, Dangerous Curves, Ashburner Inn and the business entities which are used to manage, operate, and hold property for Dangerous Curves and Ashburner Inn, and any other entity in which Kevin Rankin and or Bishop Krabsz have a financial interest.
1. All financial records, including bank statements, canceled checks, checkbooks, passbooks, journals, ledgers, checks, drafts, letters of credit, certificates of deposit, wire transfer documents, money orders, withdrawal tickets, deposit slips, money cash bands, records of mutual funds, stocks, bonds, records of real estate transactions, invoices, bills, loan documents, business and financially related correspondence and notes, certificates of insurance, lists of assets, records of safe deposit boxes, and all other items evidencing the obtaining, controlling, transfer, and/or concealment of assets and the obtaining, controlling, transfer, and/or concealment of assets and the obtaining, controlling, transfer, concealment and/or expenditure of money.
2. All checks paid to employees for wages, including the employer's copy of the check stub, Forms W-2, and Forms 1099.
3. All records of cash payments to entities and individuals.
4. All records of money and any other assets sent abroad.
5. Address and/or telephone books, rolodex indices, business cards, and any papers reflecting names, addresses, telephone numbers, pager numbers, facsimile numbers, electronic mail addresses, and/or telex numbers of business associates, sources of supply, customers, employees, temporary worker, drivers used to transport workers, financial institutions, and other individuals or businesses with whom a financial relationship exists.
6. All tax records, including but not limited to, tax returns, IRS forms, tax forms of equivalent state and local agencies, and correspondence with the IRS or equivalent state and local agencies.
7. All employee background records including applications for employment and personnel files.
8. All corporate and/or business bookkeeping records and other financial records including trial balances, general ledgers, general journals, subsidiary ledgers and journals, disbursement records and/or journals, accounts payable ledgers and records, payroll records, loan receivable and payable ledgers, and cash disbursement journals.
9. All corporate minute books, Stock Registers or other records reflecting ownership of corporate stock.
10. All financial statements, bookkeeper's work papers and/or accountant's work papers used in the preparation of corporate and/or business records and tax returns.
11. Electronic equipment, such as computers and fax machines, and relating manuals used to generate, transfer, count, record, and/or store the information described in items 1 through 10 of this attachment.*fn3
The affidavit additionally states that probable cause existed to find the items to be seized at Defendant's private residence: first, on the five separate occasions in September, 2005 that FBI agents conducted surveillance of Defendant's home, Defendant was seen leaving his residence with a briefcase; second, real estate records stated that Defendant is the sole owner of the residence and that electric and water at that location are in his name; third, a review of the mail delivered to the residence on September 27, 2005 revealed that "personal and monthly expense type bills" are mailed to Defendant at his residence; and finally, records from Comcast Corp. show that Defendant has residential high speed internet service at his house.
B. Search of Defendant's Residence
The warrant application relating to the Defendant's residence in New Jersey was submitted to the Honorable Joel B. Rosen, U.S. Magistrate Judge, who reviewed and signed the warrant on October 5, 2005.*fn4 The very next day, at approximately 10:30 A.M., between 10-15 agents executed the search of Defendant's house. Although Defendant was not present at the time, his fiancé, Lisa Bonett, was present. According to Bonett, the search covered Defendant's bedroom, including dresser drawers; the outside shed, including plastic bins containing grass seed; the bedroom of Ms. Bonett's 11 year-old son; the area behind a light fixture on a dresser in the bedroom; and the drawers and closets in a room set aside for Ms. Bonett's brother. (Bonett Aff. ¶ 7.)
During the search, a firearm was seized from a shoe box on the top shelf of a clothes closet. According to Agent Jeffrey Huber, an FBI Agent who participated in the search, the firearm was seized between 11:30 and 11:45 A.M., approximately one hour after the FBI and IRS agents arrived to Defendant's home and commenced the search. Huber testified that once he learned the gun had been seized he informed Ms. Bonett and continued to search the premises. Shortly before the search concluded ...