*1 1118 appeal language
ner of but modified the exception. specific directions about appendix changed and briefs were to
permit these matters be addressed Appellate
rules.4 The Federal Rules of Pro- flexibility respect
cedure allow briefs,5
appendix Congress obvious-
ly intended the local rules make appeal to the district court in these
respects expeditious inexpensive. This
legislative history demonstrates Con-
gress has never wavered its expressed from aggrieved
intent to allow an party appeal magistrate’s judgment
from “in same appeal judgment
manner as from
the district court appeals.” court of
The district court’s local rule requiring
appeals magistrates from in civil cases
filed within 10 days provi conflicts with the 636(c)(4)
sion in which we § construe as
allowing days. 30 The practice prescribed prevail. the statute must See 28 U.S.C. 2071; States, Palermo v. United § 360 U.S. n.11, n.11, 79 S.Ct. (1959).
L.Ed.2d 1287 judgment magistrate
dismissed the reversed,
the district court is and the case is proceedings.
remanded for further America,
UNITED STATES of
Appellant,
Stanley Seymour PALMER and Price, Appellees. Alexander
No. 81-5061. Appeals,
United States Court of
Fourth Circuit.
Argued Aug. 5, 1981.
Decided Dec. 1981. Rehearing Denied Jan. Glazer, Justice, M. Sidney Dept, of Wash-
ington, Michaux, Jr., (Henry D. C. M. Atty., Durham, brief), appel- lant. 2, supra. See, e.g., Fed.R.App.P.
4. See note 30 and 32. *2 Cofer, L. C. Mitchell and William Eddie bookmaking activities of Palmer and Price Winston-Salem, appellees. for during the summer of 1978. Between Au- gust 28, 6, 1979, 1979 and December various RUSSELL, WIDENER and Before unnamed informants advised F.B.I. Judges. Circuit and conducting Price were their bookmaking telephone business over WIDENER, Judge: numbers 764-4900 and 764-4901. Records interlocutory appeal an from the This is of Telephone Southern Bell Company court, 812, P.Supp. order of the district showed that these two granting sup- motions defendants to Mart, billed to Carl’s as were two press pursuant evidence seized search telephones. Toll records for these question presented warrants. The whole is August through for November 1979 particularly whether search warrants revealed several hundred calls to other sus- searched, pected participants described as re- bookmaking oper- in the ation, quired Fourth The as well as sports Amendment. numerous calls to ask information services in New us to hold that the search York and Los Angeles. premises was on conducted other than those i.e., in
described “Carl’s spot F.B.I. conducted checks of the Carpet Mart.” We reverse. suspected bookmaking operations between 23, 9, October 1979 and December appellees On October Stanley S. Mart is located at one end of A. along Palmer and an L-shaped shopping containing others, seven carrying were indicted for on three other business On the roof illegal bookmaking business and us- over is a large ing telephone system the interstate to ob- stating name establishment. tain in receiving plac- information used That store has double in events, ing sporting bets on in violation of Adjacent front. to Carl’s Mart are 1955, 1952(a)(3) 1084(a). §§ U.S.C. the front of which had been The indictments followed an extensive formerly occupied by Miller-Arrington ap- investigation, F.B.I. which culminated in pliance “Miller-Arring- store. The name the execution of in ton” is glass written above the en- question against the several defendants in trance, which is the fourth set of double December left. from the The showroom area of issue this are the two war- At. was rented Miller Lacey rants to search Palmer and Price and Carl’s warrants were executed. 14,1979 onMart December and exe- periodic He antique auctions 16,1979. cuted on December The warrants the public there. From area of Carl’s Car- persons authorized search of the of Palm- pet Mart outside of the Miller-Ar- Mart, er Inc., and Price “at rington premises, plywood an unbroken Lexington Road, New Route Box panel partition between two Winston-Salem, North Carolina” and the was which visible extended from the front Inc., Mart, at the building way about two-thirds the same address. No further description was private containing back. A area given face of the warrants. The restrooms was located at the rear of Carl’s warrants were issued obscuring the remainder Magistrate on the basis the affidavit of plywood partition the interior Special Agent Schatzman, who had con- view agents conducting the surveillance. investigation. ducted the F.B.I. Similarly, rear of affidavit, typed pages length, partitioned private was off into probable sets out cause detail prem- offices. Price the rent on those and abundance. It asserts reimbursing the F.B.I. ises as well as considerable had telephone learned informants of the bill Carl’s during addition,
On several occasions the surveil- Price and Palmer each period, Agent lance statement on the return to the Schatzman observed search war- rant for his in almost lan- identical entering leaving Price and Palmer guage just quoted to that above. That Miller-Arrington premises. They always Price described the Car- used fourth set double doors from the pet while that of Palmer described hearing left. Schatzman testified *3 Carpet.” them as “Carl’s to suppress the motion that he had never Signing the re statements the any observed either Price or Palmer use specified turns which the searched the first double doors on the being as those of Carl’s Mart is an left, always but the fourth. by admission Price and the Schatzman, agents, including When F.B.I. place search took on the authoriz issue, they at executed ed search warrants. The statements through entered the doors with “Miller-Ar- are uncontroverted they evidence that re them, rington” written on the fourth set garded they occupied in their doors from left which Price and Palmer operation bookmaking being as indeed a had used. searched the enclosed area part of Mart. We decline premises, the back that which was hold that searched were not rented those described which consisted of several in the warrant when obviously defendants themselves regarded telephones bearing cubicles. The numbers specifies them the same. If a warrant a 764-9000 and 764-9001 were both found designation under the by which it is the back cubicles. The found no known, commonly though descrip the exact connecting door with those correct, may tion not the warrant will be of Carl’s Mart. The agents did not upheld. See United v. States search elsewhere. 1972). F.2d 1184 conducted, After the search was returns The order of the district court is accord- made, on the warrants were listing the ingly separate items A seized. return was made REVERSED. for each search of as well as one for the Following the list of K. K. Judge, dissenting: items seized the return for “these prem- agents in this case searched Mil- following ises” was the statement: ler-Arrington though store even war- certify This is to that on December rant authorized them to search n 16th 1979 at Davidson Co. North Caroli- Carpet majority Mart. The overlooks this na, Special Agents of the Federal Bureau discrepancy signed because the defendants Investigation, Department U. S. warrant returns they in which noted that Justice, at of conducting the search was ,]1 . search of at Carls [. I impor- Mart. cannot attach this much obtained the listed items. I layman’s signature tance upon the re- certify represents further that the above therefore, turn aof all that was obtained Special Agents respectfully dissent. of the Federal Investigation, Bureau of physical layout two stores Department of Justice. gives no reason to believe are one (Signed) Stanley S. Palmer adjacent and the same.1 Although [s] in a
(Signed) center, S. A. Price shopping sepa- small are stores [s] copying, 1. The word “or” has been omitted in it of “Carl’s and because the de- obviously having agents’ suspi- not been marked fendants rent to Carl’s. The simply support mistake. cions will not this warrant. ownership phone listings prove Common See, agents thought nothing. Kaye, 1. The that the stores con- 432 F.2d (D.C.Cir.1970). nected because the located in the The owner of Carl’s also Miller-Arrington shopping store were listed the name owned entire so the de- by a wall no interior The majority virtually rated and have access admits that (See There is a appendix.) between them. improper, warrant was but nevertheless directly larger on the roof over the would sanction the search because the de- designating it as “Carl’s store returns the warrant in Mart.” The doors to the store are which they designated the premis- labelled, clearly “Miller-Arrington.” The es as My Mart.” brethren obviously a sepa- store is unduly emphasize a document which is business, perhaps lively rate not one at nothing inventory more than an sheet. In search, certainly time of the surrounding the confusion it is part entirely probable defendants had Further, the activities of the defendants significance no idea of the descrip- gave Miller-Arring- no indication that the tion on the return. ton store was sum, this case arose as a result of the During the two months in which FBI agents’ carelessness. These had two *4 agents kept the under surveil- months to determine where wanted to lance, they never enter saw them or leave search. have obtained a war- through any except those marked rant to search the store.3 “Miller-Arrington.” Although armed with Any attempt justify this search is an a warrant to search “Carl’s post exercise in hoc rationalization. begin themselves did not their store, therefore affirm carpet proceeded would the district directly through Miller-Arrington suppress court’s decision the evidence and confined their search that store.2 obtained in this search. naturally pay lounge would their rent at sealed-up first and then searched a Further, which, up back room until weeks before town, could have had extension all over lounge had been connected to the but warrant Mart” a door. permit agents would search each of those locations. supporting (which 3. The affidavit the warrant was not attached to it shown to the defend- clearly distinguisha-
2. The facts of this case are
search)
ants at the time of the
indicated that
ble from the
in United
situation
States v.
enter
did want to
at the fourth set of
1972),
APPENDIX