United States v. Stanley Zane Cutts, 535 F.2d 1083 (8th Cir. 1976). · Go Syfert
United States v. Stanley Zane Cutts, 535 F.2d 1083 (8th Cir. 1976). Cases Citing This Book View Copy Cite
16 citation events across 7 distinct courts.
Strongest positive: United States v. Bruce Wayne Johnson (ca8, 1983-05-04) · Strongest negative: United States v. Jerry D. Wright (ca8, 1981-02-27)
Top citers, strongest first. 6 distinct citers. How cited ↗
examined Cited "but see" United States v. Jerry D. Wright (3×) also: Cited as authority (rule), Cited "see, e.g."
8th Cir. · 1981 · signal: but cf. · confidence high
United States v. Hare, 589 F.2d 1291, 1294 (6th Cir. 1979); but cf. United States v. Cutts, 535 F.2d 1083, 1084 (8th Cir. 1976) (per curiam) (discovery was anticipated and warrant could have been obtained). 4 .
discussed Cited as authority (rule) United States v. Bruce Wayne Johnson
8th Cir. · 1983 · confidence medium
This circuit, however, has consistently applied the rule that “the warrantless seizure of weapons or contraband during the course of an otherwise authorized search” is not necessarily unlawful “notwithstanding that the discovery was anticipated and that a warrant could have been obtained,” United States v. Cutts, 535 F.2d 1083, 1084 (8th Cir.1976).
discussed Cited as authority (rule) United States v. Gregory James Freeman and David Lyle Boese, A/K/A Dennis Phillip Stevens and David Sterling (2×)
5th Cir. · 1982 · confidence medium
Compare United States v. Vargas, 621 F.2d 54, 56 (2d Cir.), cert. denied, 449 U.S. 854 , 101 S.Ct. 150 , 66 L.Ed.2d 68 (1980); United States v. Cutts, 535 F.2d 1083, 1084 (8th Cir. 1976) (holding that inadvertence requirement is unnecessary in cases of seizure of contraband), with United States v. Ortega, 644 F.2d 512, 515 (5th Cir. 1981); United States v. Roberts, 644 F.2d 683, 686 (8th Cir.), cert. denied, 449 U.S. 821 , 101 S.Ct. 79 , 66 L.Ed.2d 23 (1980); United States v. Hare, 589 F.2d 1291, 1293-96 (6th Cir. 1979); United States v. Bills, 555 F.2d 1250, 1251 (5th Cir. 1977); United State…
cited Cited as authority (rule) United States v. Luis Vargas
2d Cir. · 1980 · confidence medium
Lo-Ji Sales, Inc. v. New York, supra, 99 S.Ct. at 2323 n.5; United States v. Liberti, supra, at 36; United States v. Cutts, 535 F.2d 1083, 1084 (8th Cir. 1976).
discussed Cited "see" United States v. Gorman
S.D. Fla. · 1980 · signal: see · confidence high
See United States v. Cutts, 535 F.2d 1083, 1084 (8th Cir. 1976); United States v. Carwell, 491 F.2d 1334 (8th Cir.), cert. denied, 417 U.S. 949 , 94 S.Ct. 3076 , 41 L.Ed.2d 669 (1974); United States v. Smollar, 357 F.Supp. 628, 632-33 (S.D.N.Y.1972); Kelder & Statman, “The Protective Sweep Doctrine — Recurrent Questions Regarding the Propriety of Searches Conducted Contemporaneously With an Arrest On or Near Private Premises,” 30 Syr.L.Rev. 973, 1084, n.342 (1979).
discussed Cited "see, e.g." United States v. Vincent and Barbara Liberti, Movants-Appellees (2×)
2d Cir. · 1980 · signal: see, e.g. · confidence medium
See, e. g., United States v. Cutts, 535 F.2d 1083, 1084 (8th Cir. 1976); United States v. Carwell, 491 F.2d 1334, 1336 (8th Cir.), cert. denied, 417 U.S. 949 , 94 S.Ct. 3076 , 41 L.Ed.2d 669 (1974); United States v. Smollar, 357 F.Supp. 628, 633 (S.D.N.Y.1972).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Stanley Zane CUTTS, Appellant
76-1129.
Court of Appeals for the Eighth Circuit.
Jun 9, 1976.
535 F.2d 1083
1976 U.S. App. LEXIS 8648
Jack S. Nordby, St. Paul, Minn., for appellant., Robert G. Renner, U. S. Atty., and Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
Lay, Per Curiam, Stephenson, Webster.
Cited by 12 opinions  |  Published
PER CURIAM.

Stanley Zane Cutts appeals from his conviction for unlawful receipt of a firearm by a convicted felon, in violation of 18 U.S.C. App. § 1202(a)(1).

On August 24, 1974, a Minnesota law enforcement officer obtained a warrant to search for cocaine at the residence of the defendant in Plymouth, Minnesota. The search led to discovery of controlled substances, as well as a .9 mm semi-automatic pistol, which led to the instant federal firearms prosecution. [1]

The conviction was secured upon agreed facts, with defendant contesting only the lawfulness of the search and seizure. Defendant challenges the search on this appeal, arguing: (1) that the affidavit supporting the search warrant failed to show probable cause to believe that narcotics were present on the premises; and (2) that the seizure of the pistol was unlawful because the officer securing the warrant knew of the existence of the weapon but did not request its inclusion as one of the items to be seized. We affirm the conviction.

Defendant complains that the crucial allegation in the affidavit, that the affiant had observed “powder represented to be[*1084] cocaine,” is “cryptic and indirect.” Defendant argues that the affidavit does not state who was present when the “white powder” was observed, nor who had possession of the powder, nor who represented it to be cocaine, and that the affidavit thus fails to show probable cause to believe that narcotics would subsequently be found at the premises.

We are not persuaded by this argument. Affidavits for search warrants . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.

. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

See also United States v. Koonce, 485 F.2d 374, 380 (8th Cir. 1973); United States v. Bridges, 419 F.2d 963 (8th Cir. 1969). In the instant case, the affidavit stated that cocaine had been viewed on the premises of 12410 Highway 55, that the defendant and a woman named Susan (in addition to the informant) were present on the premises, and that both the defendant and Susan resided at the above address. No mention is made of any other persons, nor is it reasonable'to view the informant as the possessor of the powder or the one representing it to be cocaine. Thus, under a commonsense reading of the affidavit, a magistrate could properly conclude that a controlled substance was in the possession of the residents of 12410 Highway 55 and would be found there upon a subsequent search. See United States v. Bridges, supra.

Second, defendant argues that the seizure of the weapon cannot be justified under any exception to the warrant requirement. He urges that the plain view doctrine is inapplicable since the officers had advance knowledge (through the information supplied by the confidential informant) of the existence of the weapon, and that its discovery was thus in no way inadvertent. The United States disputes this, noting that the weapon described by the informant was a “.38 caliber or a .357 magnum” (a revolver), while the weapon found was a .9 mm Browning semi-automatic (a flat pistol). Since the two types of firearms are distinct, the United States argues that the discovery of the Browning pistol was indeed inadvertent.

The pistol found in defendant’s dresser constituted an object both dangerous in itself and contraband. [2] We have previously held lawful the warrantless seizure of weapons or contraband during the course of an otherwise authorized search, notwithstanding that the discovery was anticipated and that a warrant could have been obtained. United States v. Carwell, 491 F.2d 1334 (8th Cir.), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974). See also Coolidge v. New Hampshire, 403 U.S. 443, 519, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (White, J., separate opinion); United States v. Corbett, 518 F.2d 113, 115 (8th Cir. 1975); United States v. Golay, 502 F.2d 182, 184 (8th Cir. 1974).

The judgment of conviction is affirmed.

1

. The search and seizure also led to a successful state narcotics prosecution.

2

. The affidavit for the warrant recited the officer’s knowledge that defendant had prior convictions.