The opinion of the court was delivered by: WEINSTEIN
JACK B. WEINSTEIN, Chief Judge, U.S.D.C.
Defendant is charged in a five-count indictment with knowing and unlawful possession of firearms (26 U.S.C. §§ 5845(a), 5845(b), 5861(d), 5871), possession of a firearm from which the serial number had been removed (26 U.S.C. § 5861(h)) and the unlawful manufacture of silencers (26 U.S.C. §§ 5845(a), 5845(b), 5861(f), 5871). He has moved to suppress the firearms, silencers, gun parts and ammunition seized from his apartment and garage pursuant to search warrants. The search warrants were predicated on information that the defendant had revealed to a government agent; the government agent had answered the telephone during the execution of a search warrant at the place of business of a seller of silencer kits.
Presented is the question of whether the conduct of the government agent answering the telephone violated defendant's constitutional rights. As indicated below, his rights were not violated.
Members of the Tuscon police department and special agents of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant at the residence of one Al Waddell in Tuscon, Arizona. Waddell, doing business as "Sionacs" from his home, was selling kits to manufacture gun silencers. Seized under the warrant were a number of these kits and documents. During the course of the search Waddell's incoming telephone calls were answered by a member of the Tuscon police department posing as a employee of Sionacs. Twelve calls, each placing orders for silencer kits, were received.
One call was from an individual identifying himself as Ira Seinfeld. It is not disputed that the caller was the present defendant. Defendant believed that he was talking to an employee of Sionacs. He asked that Mr. Waddell be informed that the two .22 caliber silencer kits he had previously purchased worked well.
Based upon the information obtained during this phone conversation, federal agents procured a search warrant for defendant's residence in the district. Upon executing the warrant, the federal agents discovered a large quantity of illegal firearms and firearm components. Included among the items seized were a fully loaded Uzi semi-automatic carbine, conversion kits to modify Uzi semi-automatic carbines to fire automatically, empty boxes in which Uzi carbines had been sold, instructional material relating to the manufacture of firearms and documents indicating that additional firearms could be found at the defendant's garage. Based upon this information a search warrant was obtained for the garage and another large quantity of firearms, silencers, firearm parts and ammunition was found.
A police officer on the premises of an illegal business pursuant to a search warrant may answer the telephone. See United States v. DeLutis, 722 F.2d 902, 909 (1st Cir. 1983); United States v. Vadino, 680 F.2d 1329, 1335 (11th Cir. 1982), cert. denied sub. num. Natale v. United States, 460 U.S. 1082, 103 S. Ct. 1771, 76 L. Ed. 2d 344 (1983); United States v. Gallo, 659 F.2d 110, 113-15 (9th Cir. 1981); United States v. Campagnuolo, 592 F.2d 852, 861-64 (5th Cir. 1979); United States v. Fuller, 441 F.2d 755, 760 (4th Cir.), cert. denied, 404 U.S. 830, 92 S. Ct. 73, 30 L. Ed. 2d 59 (1971).
Two rationales support this result. First, when the telephone calls are related to the purpose of the search the calls fall within the general language in a warrant regarding evidence of the crime and thus may be "seized." See, e.g., United States v. Fuller, 441 F.2d 755, 760 (4th Cir.), cert. denied, 404 U.S. 830, 92 S. Ct. 73, 30 L. Ed. 2d 59 (1971); United States v. Kane, 450 F.2d 77, 84-85 (5th Cir. 1971). Illegal bookmaking and gambling activities are generally involved and the warrant authorizes the seizure of "wagering paraphernalia" -- arguably a category encompassing oral wagers. In the present case no such catchall phrase was present in the Tuscon warrant.
A second theory supporting authority to answer telephones is that the calls are reasonably related to the purpose of the search so that there need not be explicit authority in the warrant for the "seizing" of the calls. See, e.g., United States v. Ordonez, 722 F.2d 530, 542 (9th Cir. 1983), mod. on other grounds, 737 F.2d 793 (9th Cir. 1984). That is to say, if the telephone is necessary for the illicit business being conducted on the premises, and the agents are there lawfully, they may answer the phone.
We can assume on this record that it was necessary for Sionacs, in Arizona, to use the telephone in selling silencer component parts to purchasers in New York. Selling illegal gun components is analagous to selling illegal drugs -- a business in which oral rather than written purchase orders are relied upon. See, e.g., United States v. Ordonez, 737 F.2d 793, 810 (9th Cir. 1984) (telephone is necessarily related to the business of selling illegal drugs from home.)
The Tuscon officer who answered the phone took twelve calls and all related to the buying of silencer component parts. This is sufficient evidence that Waddell used the telephone in conducting his illegal business. Cf. United States v. Congote, 656 F.2d 971, 974 n.5 (5th Cir. 1981) (where only one call answered was related to cocaine and the rest were personal calls, the phone did not play an integral role in the crimes under investigation); United States v. Kane, 450 F.2d 77, 85 (5th Cir. 1971) (standard of reasonableness would be transgressed if a number of calls were innocent).
Defendant's own affidavit states that he believed he was calling the office of Sionacs. There is also some evidence, which the defendant does not dispute, that the defendant had made a number of previous calls to Waddell's home, all of which were relate to the purchase of silencer kits. It seems clear that the telephone was a necessary part of Waddell's business and that the defendant was making a commercial, not a personal, call. It was reasonable for the agents to believe that the incoming calls would be related ...