United States v. James Francis Melvin

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal by James Francis Melvin from his conviction for the possession of two firearms, a sawed-off shotgun and a sawed-off carbine, which were not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). The guns were discovered and seized by police officers during a search of Melvin’s home pursuant to a warrant. Melvin contends that the district court erred in refusing to suppress the firearms as evidence against him at trial. He argues (1) that the search warrant was issued without probable cause; (2) that it was issued upon an affidavit containing a material false statement made in reckless disregard for the truth; and (3) that the seized weapons were the fruits of an interrogation conducted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As we conclude that the district court properly admitted the seized firearms into evidence, we affirm the conviction.

I.

We address first the question of probable cause. The warrant, authorizing the search of appellant’s home at 38 Ells Avenue, Weymouth, was issued by a justice of the Massachusetts Superior Court upon the affidavit of Detective John E. Lydstone of the Boston Police Department. The objects sought by the search as authorized by the warrant were instrumentalities used in the commission of a bombing, not the firearms which were found and introduced against appellant at trial.1

In passing on the probable cause basis for the search warrant, we may consider only information brought to the issuing judge’s attention. Aguilar v. Texas, 378 U.S. 108, 109 n.1, 84 S.Ct. 1509,12 L.Ed.2d 723 (1964). The judge issued the warrant solely on the basis of Detective Lydstone’s affidavit, which stated the facts in material respects as follows. At approximately 4:00 a. m. on November 18, 1976, there was an explosion at Rooney’s Tavern in Dorchester, Massachusetts. Patrolman Arnstein of the Boston Police Department arrived at the tavern a few minutes after the explosion. According to the affidavit, shortly after Arnstein’s arrival “an unknown male stated that a white Cadillac had left the scene moments before the explosion.” Earlier that morning, at about 2:00 a. m., Arnstein while patrolling the area had noticed a white Cadillac parked in front of Rooney’s Tavern and a white male, about 35 years old, 5'10" tall, and 180 lbs., standing at the tavern’s front door. Detective Lydstone in the affidavit affirmed further:

“(5) That I gave photographs of persons known by me to frequent the area of Rooney’s Tavern and Patrolman Arnstein indicated that a photograph of James Melvin bore a strong resemblance to the man that he had seen at the Tavern door at 2:00 AM that morning.
“(6) That James Melvin is a white male, 34 years, 5'-9", 165 lbs. is listed as an owner of Rooney’s Tavern and that he operates a 1976 Cadillac, color white, Mass. Reg. D66-105 and he resides at 38 Ells Ave., Weymouth.
“(7) That at about 10:00 PM Thursday, November 18, 1976, Detective Martin Coleman of the Intelligence Division responded to 38 Ells Ave., Weymouth and observed that the white Cadillac belonging to Melvin was parked at that location.”

*495Lydstone stated also that Sergeant Ruglar-io and Patrolman Cunningham of the Boston Police Department’s bomb squad reported finding at the rear of the tavern a 103 foot length of brown wire and another length of similar brown wire inside the tavern, the latter attached to .yellow and blue wires of the type and in a configuration consistent with use in detonating a stick of dynamite, and that “[i]t is the opinion of these bomb squad officers that the above paraphernalia was in fact used to cause the explosions at Rooney’s Tavern.” Finally, Detective Lydstone requested a warrant for the following reasons:

“(8) That I have discussed the above stated facts and their inferences with other members of the Intelligence Division and it is our collective opinion that there is probable cause to believe that James F. Melvin was responsible for the explosion at Rooney’s Tavern and respectfully request that the Court issue search warrant for Melvin’s white Cadillac, Mass. Reg. D66-105.
“(9) I have discussed the facts and inferences of this case with Sgt. Ruglario and Patrolman Cunningham of the Bomb Squad. They inform me that the type of device capable of causing the above damage (at Rooney’s Tavern) would generally be assembled in a workshop of some sort, as opposed to in the vehicle, because of the type of tools and materials needed to assemble the bomb. Therefore, I also request a search warrant for James Melvin’s residence at 38 Ells Avenue, Wey-mouth, Massachusetts. That residence is described as a single-family, brown, two-story house with a garage attached.”

The warrant was issued on November 19 and the search conducted later that day.

The fourth amendment protects against “unreasonable searches and seizures,” and provides that “no Warrants shall issue, but upon probable cause.” The Supreme Court in Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969), summarized the principles that govern the issuance and review of search warrants. These “established propositions” are,

“that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, [85 S.Ct. 223, 228,13 L.Ed.2d 142] (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, [87 S.Ct. 1056, 1062, 18 L.Ed.2d 62] (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102,108, [85 S.Ct. 741, 745, 13 L.Ed.2d 684] (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, [80 S.Ct. 725, 735-736, 4 L.Ed.2d 697] (1960).”

Appellant misapprehends two fourth amendment principles which we wish to clarify at the outset. First, appellant reads the phrase “probable cause” with emphasis on the word “probable,” and would define it mathematically to mean “more likely than not” or “by a preponderance of the evidence.” This reading is incorrect. The phrase is less stringent than that — the words “reasonable cause” are perhaps closer to what is meant. The Supreme Court has asserted that “ ‘reasonableness’ is the overriding test of compliance with the Fourth Amendment,” Zurcher v. Stanford Daily, 436 U.S. 547, 559, 98 S.Ct. 1970, 1978, 56 L.Ed.2d 525 (1978); has approvingly quoted authority equating “probable cause” with “reasonable grounds to believe,” id. at 556 n.6, 98 S.Ct. 1970; and has even used the phrases “reasonable cause” and “probable cause” interchangeably, compare id. at 556, 98 S.Ct. 1970, with id. at 557, 98 S.Ct. 1970. See also Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Appellant’s second misunderstanding is his contention that for the warrant to have been proper there had to have been probable cause to believe that he was responsible for the explosion. This would *496mean that the search of appellant’s home was improper unless the police had sufficient evidence prior to the search to arrest him. Such a requirement would render property searches ineffective as tools of criminal investigations in many cases, and it has been rejected by the Supreme Court. The Court has ruled that “ ‘[o]nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of [‘fruits, instrumentalities, or evidence,’ see 436 U.S. at 554, 98 S.Ct. 1970,] of the crime.’ ” Zurcher v. Stanford Daily, 436 U.S. at 558, 98 S.Ct. at 1978, quoting United States v. Manufacturers National Bank, 536 F.2d 699, 703 (6th Cir. 1976), cert. denied sub nom. Wingate v. United States, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 749 (1977). Moreover, the Court has declared that “it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of crime and is subject to arrest.” 436 U.S. at 559, 98 S.Ct. at 1978. It is true that Zurcher involved a search of property possessed by a third party who was not suspected of the criminal activity being investigated, and held only that such a nonsuspect’s property could be searched without probable cause to arrest him. But, the rule is obviously the same with respect to a person who the police do indeed suspect but do not have probable cause to arrest; such a person’s property may be searched upon probable cause to believe that fruits, instrumentalities, or evidence of the crime are present, even though the products of the search may implicate him. Carroll v. United States, 267 U.S. 132, 158-59, 45 S.Ct. 280, 69 L.Ed. 543 (1925); 436 U.S. at 556-58, 98 S.Ct. 1970.

In this case it is undisputed that the judge who issued the warrant had probable cause to believe that a crime had been committed. Whether he properly issued the warrant therefore depends upon whether he had probable cause to believe that instrumentalities of the crime were present in appellant’s home. Appellant claims that such probable cause was lacking because of insufficient evidence linking him to the bombing and inadequate reason to expect that instrumentalities would be found in his home even if he had been involved.

The evidence described in the affidavit connecting appellant to the explosion was the “unknown male’s” statement that a white Cadillac had left the scene moments before the explosion, Patrolman Arnstein’s earlier observation of a white Cadillac and a man fitting appellant’s description at the tavern, the fact that appellant owned a white Cadillac, which was parked at his home the day after the bombing, and the fact that appellant owned the bombed tavern. Perhaps the most important fact was the statement that the white Cadillac had left the scene “moments” before the explosion. This permitted the issuing judge to conclude that whoever was driving the car heard the explosion but did not return. Since the relative uniqueness of white Cad-illacs and the earlier evidence of defendant’s presence justify a conclusion that it was defendant who was driving away, the judge could further have drawn the inference of complicity from a failure to do what defendant, if innocent, would have done, i.e., returned to check on his premises after hearing the explosion. If the issuing judge was entitled to credit all of this information, we think it provided him with an adequate foundation to regard appellant as a prime suspect, quite apart from whether it would have provided probable cause for appellant’s arrest.

Appellant, however, challenges the use of the statement of the “unknown male,” a crucial piece of evidence in the chain implicating appellant, in establishing probable cause for the search. Appellant argues that the statement of the “unknown male” should be treated as an informant’s tip and not credited because the police have not demonstrated his credibility and the reliability of his statement, as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See also United States *497v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We do not, however, regard the “unknown male’s” statement as an informant’s tip subject to Aguilar and Spinelli. We view it instead as the statement of a bystander witness. While the affidavit does not expressly disclose the source of the “unknown male’s” information, the nature of the information he provided and the circumstances of his “on the scene” report could strongly suggest to the issuing judge that he was relating what he had personally observed. And, his statement was not at all in the nature of an informant’s tip — it was non-accusatory and did not describe criminal activity. He merely stated that a white Cadillac had left the scene moments before the explosion, a detail innocuous by itself. Its significance lay in its fitting in with other facts which such a bystander would presumably not know. To be sure, it would have been preferable for the affidavit to have identified the “unknown male” and to have specified whether he had personally observed the Cadillac leave the scene. But we must interpret the affidavit “in a commonsense and realistic fashion,” eschewing “[a] grudging or negative attitude” and recognizing that affidavits for search warrants “are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). From that perspective, the reasonable implication of the affidavit is that the “unknown male” was a bystander witness, not an informant. Treating him as such— and taking into account that the statement, which formed a single link in a circumstantial chain, was non-accusatory — we think the demonstration of credibility and reliability that would be required under Aguilar and Spinelli in the case of an informant is not required here. As the Second Circuit noted in United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975) (Friendly, J.),

“there has been a growing recognition that the language in Aguilar and Spinelli was addressed to the particular problem of professional informers and should not be applied in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime.”

Accord, e. g., United States v. Bell, 457 F.2d 1231,1238-39 (5th Cir. 1972); United States v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); United States v. McCoy, 478 F.2d 176, 179 (10th Cir.), cert. denied, 414 U.S. 828 (1973). The considerations that produced the Aguilar and Spinelli formulation in the case of an informant do not all apply in the eyewitness situation. United States v. Bell, 457 F.2d at 1238-39.

While the precise requirements of Aguilar and Spinelli need not be met in this situation, it is still necessary that the issuing judge have had a “substantial basis” for crediting the hearsay. See United States v. Burke, 517 F.2d at 381. See generally United States v. Harris, 403 U.S. at 581, 91 S.Ct. 2075; Jones v. United States, 362 U.S. 257, 271-72, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). That the “unknown male” was not identified and that the affidavit did not state the circumstances of his observation might be grounds for discounting the statement had it stood alone. However, we think the corroboration provided by Patrolman Arnstein’s observation of a white Cadillac at the tavern earlier in the morning afforded a sound basis for crediting the remark. We accordingly agree with the district court that the affidavit’s hearsay report of the “unknown male’s” statement could contribute to the probable cause basis of the search warrant. See Jones v. United States, 362 U.S. at 271, 80 S.Ct. 725; Fed.R.Crim.P. 41(c).

The facts recited in the affidavit thus strongly pointed to appellant as having played some role in the bombing. To justify the warrant authorizing the search of his house, the affidavit must also have provided a reasonable basis to believe that the instrumentalities of the crime sought by the police — wires, blasting caps, dynamite, crimping pliers and other tools applicable to the making of a bomb — might be found there. The affidavit stated in this regard only that the bomb squad officers believed that the type of bomb used at the tavern “would *498generally be assembled in a workshop of some sort, as opposed to in the vehicle, because of the type of tools and materials needed to assemble the bomb.” Appellant claims that that supposition does not create a reasonable basis for believing that the instrumentalities sought were present in appellant’s home.

While the question is a close one, we believe it was permissible for the issuing judge to infer that evidence or instrumentalities might be found in appellant’s home. We note particularly the abundance of wire (103 feet outside the tavern), the location of some of it inside the tavern, and the homemade nature of the device. The defendant, who could have been thought to have known precisely when the explosion was to occur, was the only person so far known to have had a possible connection with the bomb. Since a place to assemble it other than a car, or out of doors, was indicated, this would suggest two places — the tavern and defendant’s home. While we are urged to accept the tavern as equally probable, we think the tavern a particularly unlikely place for the clandestine assembling of a bomb, given the wide-ranging authority of officers to inspect premises of dealers in liquor with or without warrant, United States v. Biswell, 406 U.S. 311, 314, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). This is a business with “a long tradition of close government supervision, of which any person who chooses to enter . . . must already be aware.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816,1821, 56 L.Ed.2d 305 (1978). Under these circumstances, defendant’s house emerges as the likely location having a connection with him. Furthermore, it was reasonable to assume that if the bomb had been assembled in the house, given the large quantity of wire, the traces of bomb-making activity sought would still be present when the warrant was issued and executed the day after the explosion. Reasonable inferences of this nature are sufficient to justify the search warrant. See United States v. Samson, 533 F.2d 721, 723 (1st Cir.), cert. denied, 429 U.S. 845, 97 S.Ct. 126, 50 L.Ed.2d 116 (1976); cf. United States v. Picariello, 568 F.2d 222, 224-27 (1st Cir. 1978); Haefeli v. Chernoff, 526 F.2d 1314, 1318-19 (1st Cir. 1975); United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970). But cf. United States v. Flanagan, 423 F.2d 745 (5th Cir. 1970).

Accordingly, giving due weight to the finding of probable cause by the state judge who issued the warrant in this close case, see United States v. Ventresca, 380 U.S. at 109, 85 S.Ct. 741, we think that the warrant had an adequate probable cause basis.

II.

Appellant argues next that Detective Lydstone’s affidavit contained material misrepresentations and omissions in reckless disregard for the truth, and that therefore the search warrant should have been voided and the seized firearms excluded from evidence under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks the Supreme Court ruled,

“where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”

438 U.S. at 155-56, 98 S.Ct. at 2676-77. The district court held an evidentiary hearing on appellant’s challenges to the truthfulness of the affidavit and found them to lack merit. We are not persuaded that the court erred.

*499The veracity challenges appellant makes are to the affidavit’s statement that “[u]pon [Patrolman Arnstein’s] arrival and during his investigation, an unknown male stated that a white Cadillac had left the scene moments before the explosion.” This is all the affidavit said regarding what the witness had reported seeing. Appellant challenges the veracity of this statement in three respects. Appellant first claims that the stated timing of the car’s departure, “moments before the explosion,” was a material misrepresentation of what the witness had reported. It is true that at the district court’s hearing on the motion to suppress, both Arnstein and Lydstone testified that the witness had in fact not stated just when he had seen the car leave. But, both officers consistently maintained that the witness had reported seeing the car in the area just prior to the explosion and seeing it leave at some unspecified point. Since the witness reported this to Arnstein just after the explosion, the inference is clear that the witness saw the car leave either moments before, at the time of, or moments after the explosion. Within this narrow range, it is difficult to discern how the precise timing of the car’s departure from the scene of the explosion would have made any difference to the issuing judge’s determination of probable cause. The affidavit’s inaccuracy, if any, in this regard was therefore immaterial.

Appellant claims further that it was a material omission for the affidavit to identify the witness as an “unknown male.” The evidence supports the district court’s finding, however, that the only information the police had about the witness-atthe time the affidavit was submitted was that he was known by the nickname “Arky” and that he was associated with the Circle Cafe, an establishment located close to Rooney’s Tavern. While it would have been preferable for Lydstone to have included even this sketchy information in the affidavit to indicate that the witness was not a phantom stranger in the night, its usefulness to the issuing judge seems slight. The district court, in any event, found the information was not excluded intentionally or in reckless disregard for the truth, and we cannot say that the court was clearly erroneous.

Lastly, appellant contends that the affidavit was flawed for not disclosing statements made by “Arky” to Detective Coleman in a telephone conversation the day after the explosion. The conversation evidently took place when Coleman and Lyd-stone went to the Circle Cafe to inquire about “Arky,” and were told he was not there but would talk to them by telephone. Coleman reported that during the conversation “Arky” said he had just been joking when he talked to Patrolman Arnstein the night before and that while he had seen a white car parked behind Rooney’s Tavern he could not identify the car’s make. “Arky” at the same time told Coleman that he had received threats and that he wanted to forget the whole matter, and Coleman sensed that “Arky” was nervous and upset. Detective Lydstone did not mention this conversation in the affidavit for the warrant. The reason he gave for its exclusion was his view that the conversation was irrelevant. The district court, believing that Lydstone genuinely viewed the conversation as irrelevant, found that the failure of the affidavit to mention it was not a deliberate falsification or a reckless disregard for the truth under Franks v. Delaware.2 That was a permissible conclusion on the record. The apparent reason why Lydstone discounted the statements made liArky” to Coleman was that his purported recantation of his statement to Arnstein lacked credibility and reasonably seemed to *500be prompted by the threats he had been receiving. Coleman inferred that the threats related to “Arky’s” role as a witness and understandably concluded that he was upset thereby. We do not approve the affidavit’s failure to reveal the conversation; whether “Arky’s” recantation was unbelievable was properly for the issuing judge, not the police, to decide. Detective Lydstone should have reported the conversation in his affidavit, and it was negligent for him not to have done so. But his failure was evenhanded, omitting not only the extent to which “Arky” had changed his story but the fact that he had received threats. We therefore again hold that the district court was not clearly erroneous in finding that the police were not so culpable as to warrant relief.

III.

Appellant argues lastly that the sawed-off shotgun and sawed-off carbine seized during the search of his home were the fruits of statements obtained from him by the police in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and therefore should have been excluded from evidence. The statements were elicited during the search pursuant to the warrant. Upon beginning the search, a police officer asked appellant whether any money or firearms were in the house. These apparently are routine questions asked for the purpose of protecting the searching officers from violence or accusations of theft. Appellant answered that he did have firearms in the house. The police officer then asked appellant whether he had a Firearms Identification Card or a license to possess the firearms, and appellant answered that he did not. This conversation took place prior to any Miranda warnings being given to appellant.

We need not decide under the circumstances whether these questions constituted a custodial interrogation in which appellant was entitled to Miranda warnings. Even if we assume that the warnings were required, there is ample evidence supporting the district court’s finding below that the firearms were not the fruits of appellant’s statements but were obtained “ ‘by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407,417, 9 L.Ed.2d 441 (1963). Indeed, the district court found that the discovery of the firearms was “wholly unrelated” to appellant’s statements regarding the firearms. Police officers had already started their search of the cellar, where the firearms were discovered, before appellant’s statements were made. In their search for the implements used in the bombing, the police officers certainly would have uncovered the firearms regardless of appellant’s statements. Appellant evidently did not lead the officers to the weapons, and one of them was found in a duffel bag beneath a workbench. As the firearms were discovered by a means wholly independent of the alleged primary illegality, no purpose underlying the exclusionary rule would be served by suppressing the firearms which were found during the otherwise lawful search. Virgin Islands v. Gereau, 502 F.2d 914, 926-28 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United States v. Falley, 489 F.2d 33, 40-41 (2d Cir. 1973).

Appellant’s statements that the weapons were unregistered were not necessary to give the police officers probable cause to seize the weapons once they were discovered. The very nature of the objects — a sawed-off shotgun and a sawed-off carbine — provided probable cause to believe the firearms were contraband. The Second Circuit has explained,

“While it is possible for a person to register and therefore possess legally a sawed-off shotgun or an automatic weapon, it is not a prerequisite for a legal seizure that the officers know at the time of the search that the seized weapons were not registered. United States v. Story, 463 F.2d 326, 328 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); United States v. Cecil, 457 F.2d 1178,1180-81 (8th Cir. 1972); United States v. Zeidman, 444 F.2d 1051, 1054 (7th Cir. 1971); United States v. Ciaccio, 356 F.Supp. 1373, 1378 (D.Md. 1972).7
*501“As the Ninth Circuit noted in Porter v. United States, 335 F.2d 602, 607 (1964), cert. denied, 379 U.S. 983, 85 S.Ct. 695,13 L.Ed.2d 574 (1965), ‘a sawed-off shotgun in private hands is not an intrinsically innocent object. The possession of it is a serious crime, except under extraordinary circumstances.’ In 1972, there were less than 15,000 registered sawed-off shotguns in the United States, most of which were registered to governmental agencies for training purposes or to residents of Western states. United States v. Cecil, supra, 457 F.2d at 1182 n.1 (Heaney, J., dissenting).”

United States v. Canestri, 518 F.2d 269, 274—75 (2d Cir. 1975). In addition, here the sawed-off shotgun was found concealed in a duffel bag beneath a workbench in appellant’s cellar, reinforcing the suspicion that it was illegally possessed. Accordingly, the district court correctly concluded that the firearms were not seized as a “fruit of the poisonous tree.”

Affirmed.

. Apparently none of the instrumentalities of the bombing sought by the warrant were found in the house, although the returned warrant reported that electrical and friction tape, a current tester, and six pairs of wire cutters had been discovered. The judge also issued a warrant authorizing a search of appellant’s car, however, and appellant’s brief indicates that what appeared to be part of a blasting cap was found in the car. Based on this evidence, appellant apparently was arrested for having caused the explosion, but he was acquitted after a trial in state court.

. The two challenges to the veracity of the affidavit discussed above were decided by the district court prior to the Supreme Court’s decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The court was guided by our opinion in United States v. Belculfine, 508 F.2d 58 (1st Cir. 1974), however, and clearly understood that an affidavit’s intentional or reckless false statement, if necessary to the finding of probable cause, would invalidate a search warrant. There is no reason to believe the district court would have reached any different result after Franks v. Delaware. See also United States v. Cruz, 594 F.2d 268, (1st Cir. 1979).

“7 As the Eighth Circuit noted in Cecil, ‘[w]e know of no rule which requires an officer to have knowledge of all the elements of the crime when he views an article which reasonably appears to be contraband. A requirement that an officer must know the fact of nonregistration before seizing a contraband firearm would stultify the enforcement of the National Firearms Act.’ 457 F.2d at 1180.”