Lonnie Nelson SEYMOUR, Jr., Appellant, v. UNITED STATES of America, Appellee, 369 F.2d 825

MURRAH, Chief Judge. This is an appeal from a judgment on a conviction for the illegal possession of government property in violation of 18 U.S.C. § 641. The primary question is whether the trial court erroneously refused to suppress the seized evidence of the crime.

The facts are that police officers of the city of Colorado Springs, Colorado, obtained a search warrant to search the appellant’s residence in Colorado Springs for “marihuana and other narcotics.” In the course of the search the officers found in the basement of the house 105 postal money orders, 10 money order limitation stamps and a dating stamp for the post office at Prichard, Colorado. Seventeen of the money orders had been filled out, some for $100 and some for $70. The trial court specifically found from the evidence that at that time the searching officers knew the post office at Prichard had been robbed.

The officers seized the money orders, limitation stamps and post office dating stamp and appellant was subsequently charged by indictment with concealing and retaining possession of these articles with intent to convert them to his own use and gain knowing they had been stolen from the United States. We know, of course, that the precise language of the Fourth Amendment requiring the search warrant to particularly describe “things to be seized” forbids “the seizure of one thing under a warrant describing another”— “nothing is to be left to the discretion of the officers executing the warrant. Marron v.

United States, 275 U.S. 192 [48 S.Ct. 74, 72 L.Ed. 231]; Stanford v. State of Texas, 379 U.S. 476 [85 S.Ct. 506, 13 L.Ed.2d 431] ; Harris v. United States, 10 Cir., 151 F.2d 837, 169 A.L.R. 1413, affmd. 331 U.S. 145 [67 S.Ct. 1098, 91 L.Ed. 1399]. The constitutional mandate is implemented in Rule 41(e), F.R. Crim.P.

But, notwithstanding the specificity of the constitutional prohibition, the courts have apparently recognized a narrow exception dictated by the practicalities of a particular situation as where in the course of a lawful search pursuant to a lawful arrest or the execution of a valid search warrant the officer uncovers evidence of another crime. In these circumstances the officer is not required to close his eyes to the realities of the situation. He may seize the fruits or the instruments of the crime or even that which is presumptively contraband. Harris v. United States, supra; Porter v.

United States, 9 Cir., 335 F.2d 602; United States v. Eisner, 6 Cir., 297 F.2d 595; Matthews v. Correa, 2 Cir., 135 F.2d 534. While mere possession of the seized articles was not in and of itself criminal, under these circumstances possession was certainly sufficient to generate probable cause for believing that the articles were contraband, hence subject to seizure. It is significant, we think, that the searching officers knew that the Prichard post office had been robbed. The seized articles were readily identifiable with the post office as government property.

They were presumptive fruits of the crime and their presence in the basement of appellant’s home was cogent evidence of his identification with the offense. While there is always danger of stealthy encroachments on the prohibition against unreasonable searches, we think this case falls well within the rationale of Harris v. United States, supra. The judgment is affirmed.