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United States v. Melton

United States District Court, D. Nebraska

September 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH L. MELTON, Defendant.

          FINDING AND RECOMMENDATION

          CHERYL R. ZWART, UNITED STATES MAGISTRATE JUDGE

         Defendant Joseph L. Melton moves the court to reconsider his motion to suppress (Filing No. 34) because newly discovered Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) documents and regulations support Defendant's position. (Filing No. 85). For the reasons discussed below, the motion to reconsider should be denied.

         BACKGROUND

         The background of this case was set forth in the Findings, Recommendation, and Order entered for Defendant's motion to suppress. (Filing No. 62).

         Since the denial of Defendant's motion to suppress (Filing No. 74), Defendant's counsel located ATF documents and regulations he contends support his claims that the evidence obtained or arising from the August 24, 2017 inspection must be suppressed. Defendant argues the government violated certain ATF rules prohibiting a warrantless search because there was reasonable cause to obtain a warrant.

         Defendant cites to the following excerpts from the Industry Operations Manual dated October 2017 (IOI Manual):

The DE[1] inspection program is designed to serve as a warrantless annual inspection. However, a warrantless inspection may not be conducted if ATF has reasonable cause to believe that the FFL[2] has engaged in a criminal violation of the GCA[3] and that evidence thereof may be found on the licensee's premises (in which case a probable cause warrant must be obtained). A warrant also must be obtained if the purpose of the inspection is to assist in the criminal investigation of the FFL.

(Ex. 5, at p. 3[4] § 62(c)).

ATF special agents may not send an IOI[5] into a business in order to obtain criminal evidence on the licensee. The inspection cannot be initiated to further a criminal investigation.

(Ex. 5, at p. 4[6] § 63(c)(2)(d)). Additionally, Defendant points to the ATF's 1996 Legal Opinion (Legal Opinion) stating:

Clearly, an inspection for the purpose of assisting law enforcement officials in building a criminal case against the licensee does not fit within the warrant exception for a criminal investigation of a person other than a licensee or the exception for tracing firearms. Nor do we believe that such an inspection could be characterized as an annual inspection to ensure that the licensee is complying with the recordkeeping requirements of the GCA. Accordingly, such an inspection would fall within the general requirement of section 923(g)(1)(A) that a warrant be obtained.

(Ex. 3, at p. 1).

         While the Government concedes ATF policy prohibits the use of an annual compliance inspection to further a criminal investigation, they argue ATF policy has not been violated. (Filing No. 96, at CM/ECF p. 2). The Government points to the 1996 Legal Opinion to support that under the circumstances of this case, the warrantless annual search was proper.

Another situation, which may be presented, is when law enforcement officials (CE) have information concerning GCA violations by a licensee but lack sufficient information to commence an investigation of the licensee or to obtain a reasonable cause warrant. Rather, CE refers such information to Industry Operations for appropriate action. Since there is no criminal investigation of the licensee at the time of the inspection and no such investigation contemplated, the annual inspection without a warrant could legitimately be used to inspect the licensee. The fact that a referral from CE initiated the inspection would not, in and of itself, render the inspection improper. We do not interpret the 1986 amendments to the GCA as precluding communication between CE officials and ...

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