United States v. Alfredo Jiminez Flores

Alfredo Flores appeals his conviction for possessing a firearm as a convicted felon, a violation of 18 U.S.C. App. § 1202(a)(1) (1976).

The firearm was discovered during a search of Flores’ apartment for evidence that another convicted felon, Douglas Bontempi, was committing the same crime. Flores’ primary contention is that there was insufficient evidence to support the search warrant which sought evidence that Bontempi illegally possessed firearms. Flores also contests the admissibility of a letter in which his attorney admitted Flores’ ownership of the gun. We affirm.

I. VALIDITY OF THE SEARCH WARRANT

A. PROBABLE CAUSE FOR THE SEARCH WARRANT

On April 17, 1978 Police Officer Michael Miceli applied to a federal magistrate for a warrant to search an apartment and adjoining storage area located on Luz Avenue in San Jose, California. The search sought evidence that Bontempi illegally possessed firearms, and evidence that would help “establish the identity of persons in control of said premises.” Miceli’s affidavit in support of the warrant stated that 1) Douglas Bontempi had been convicted of a felony and had been arrested in the apartment on April 3, 1978 on a murder conspiracy…

dissenting.

I believe that United States v. Bailey, 458 F.2d 408 (9th Cir. 1972), compels the conclusion that Officer Miceli’s affidavit was insufficient to support issuance of a search warrant. Therefore, I respectfully dissent.

Flores argues inter alia that the search warrant was invalid because the affidavit supporting it did not state facts sufficient to show that Bontempi was in possession of firearms to be found at the apartment. Specifically, he contends that the affidavit did not recite facts which showed that Bontempi resided at the specified address. The government asserts that Bontempi’s prior arrest in the apartment and the photographs displayed there were sufficient to link him with the apartment.

We have previously held that recitation of the fact that an individual has been arrested at a residence is insufficient to support the issuance of a warrant to search that residence for items believed to be in the arrested individual’s possession. United States v. Bailey, 458 F.2d 408, 412 (9th Cir. 1972). In Bailey , we stated:

*179 Under Bailey , the statement in Officer Miceli’s affidavit that Bontempi had previously been arrested at the Luz Avenue apartment permits…

679 F.2d 173 10 Fed. R. Evid. Serv. 1070 UNITED STATES of America, Plaintiff-Appellee, v. Alfredo Jiminez FLORES, Defendant-Appellant. No. 80-1705. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1981. Decided June 8, 1982. Daniel F. Cook, Asst. Fed. Public Defender, San Jose, Cal., for defendant-appellant. William G. Otis, Washington, D. C., argued, for plaintiff-appellee; Jo-Lynne Lee, Asst. U. S. Atty., San Jose, Cal., on brief. Appeal from the United States District Court for the Northern District of California. Before FARRIS and REINHARDT, Circuit Judges, and STEPHENS, * District Judge. FARRIS, Circuit Judge: 1 Alfredo Flores appeals his conviction for possessing a firearm as a convicted felon, a violation of 18 U.S.C. App. § 1202(a)(1) (1976). 2 The firearm was discovered during a search of Flores' apartment for evidence that another convicted felon, Douglas Bontempi, was committing the same crime. Flores' primary contention is that there was insufficient evidence to support the search warrant which sought evidence that Bontempi illegally possessed firearms. Flores also contests the admissibility of a letter in which his attorney admitted…