The district court held petitioner's custody to be in violation of the Constitution, a ruling that petitioner concedes cannot stand in view of the Court's subsequent decision in Stone v. Powell, 1976, ___ U.S. ___, 96 S.Ct. 3037, 49 L.Ed.2d 1067, holding that habeas corpus relief is not to be afforded for Fourth Amendment claims already litigated in state criminal proceedings. Petitioner cites as allegedly contrary authority, Moore v. United States, 1972, 149 U.S.App. D.C. 150, 461 F.2d 1236; United States v. Meeks, 6 Cir., 1963, 313 F.2d 464; United States v. Ortiz, D.Colo., 1970, 311 F. Supp. 880, aff'd 10 Cir., 445 F.2d 1100, cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545. As the Court said in Davis v. United States, supra, 417 U.S. at 346, 94 S.Ct. at 2305, quoting Hill v. United States, 1962, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, in determining whether an alleged nonconstitutional error is cognizable on collateral review,
Ortiz moved the trial court to suppress the evidence seized in the searches for the reason that the searches were conducted illegally. After an evidentiary hearing, the motion to suppress was denied on all grounds. United States v. Ortiz, 311 F. Supp. 880 (D.C.Colo. 1970). On appeal, Ortiz continues to contend that the initial search and seizure was illegal on the ground that the agents used force to gain entrance into the cabin and failed to comply with 18 U.S.C. § 3109.
We have upheld warrants like the one at issue where one part of the description is inaccurate, but the description has other accurate information to identify the place to be searched with particularity.”); United States v. Ortiz, 311 F.Supp. 880, 883 (D.Colo.1970) (“there is no need to include the owner's or defendant's name on a search warrant that otherwise sufficiently describes the premises to be searched.”).
The listing in the warrant of the name of the owner of the premises to be searched or the things to be seized is not specifically required by the Fourth Amendment, which provides that "no Warrants shall issue, but upon . . . particularly describing the place to be searched, and the person or things to be seized." Hanger v. United States, 398 F.2d 91, 99 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); Miller v. Sigler, 353 F.2d 424, 428 (8th Cir. 1965), cert. denied, 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966); Dixon v. United States, 211 F.2d 547, 549 (5th Cir. 1954); United States v. McClard, 333 F. Supp. 158, 163 (E.D.Ark. 1971), aff'd, 462 F.2d 488 (8th Cir. 1972); United States v. Ortiz, 311 F. Supp. 880, 883 (D.C. Colo. 1970), aff'd, 445 F.2d 1100 (10th Cir. 1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971). All that need be particularly described for Fourth Amendment compliance is the place to be searched and the thing or person to be seized.
However, a search warrant does not have to be directed against a named person, where it is a building which is being searched. United States v. Bell, 17 F.R.D. 13 (D.C.D.C. 1955); United States v. Ortiz, 311 F. Supp. 880 (D.C. Colo. 1970); Dixon v. United States, 211 F.2d 547, 549 (5th Cir. 1954). All that is necessary is a description of the premises which is sufficient to enable the officer to identify and readily find it.
Thus, § 2518(1)(b)(iv), which states that application for the interception of a wire communication shall state the identity of the person committing the offense only if known, is not unconstitutional. United States v. Leach, 24 F.2d 965 (3rd Cir. 1928), Dixon v. United States, 211 F.2d 547 (5th Cir. 1954), Miller v. Sigler, 353 F.2d 424 (8th Cir. 1965), Hanger v. United States, 398 F.2d 91 (8th Cir. 1968), United States v. Ortiz, 311 F. Supp. 880 (D.Colo. 1970). In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Court limited the area which could be searched as an incident to a lawful arrest to that which the person who is apprehended has access.
See Accaputo, supra at 446; 2 W.R. LaFave, Search and Seizure § 4.5, at 74; § 4.6, at 100 n. 23 (1978). See United States v. Klein, 565 F.2d 183, 186 n. 3 (1st Cir. 1977); United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976); United States v. Womack, 509 F.2d 368, 382 (D.C. Cir. 1974), cert. denied, 422 U.S. 1022 (1975); United States v. Tranquillo, 330 F. Supp. 871, 873 (M.D. Fla. 1971); United States v. Ortiz, 311 F. Supp. 880, 883 (D. Colo. 1970), affd, 445 F.2d 1100 (10th Cir.), cert. denied, 404 U.S. 993 (1971); State v. Dragos, 20 Ariz. App. 14, 15 (1973); Bloom v. State, 283 So.2d 134, 135-136 (Fla. Dist. Ct. App. (1973); State v. Corbin, 419 A.2d 362, 363 (Me. 1980); Frey v. State, 3 Md. App. 38, 46-47 (1968); O'Brien v. State, 158 Tenn. 400, 402 (1929). A few cases have permitted an unattached document referred to in the warrant but not tendered with it to supply specificity, but it appears that in each instance that document at least was carried to the search by the executing officer and was available there for use by the officers and inspection by the subjects of the search.
Some courts have actually required that there be an express reference in the warrant to the affidavit in order for the warrant to be sustained as constitutionally valid. United States v. Ortiz, 311 F. Sup. 880, 883 (D. Colo.), aff'd, 445 F.2d 1100 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545; Huffman v. United States, 470 F.2d 386, 393 n. 7 (D.C. Cir.); United States v. Brooks, 303 F.2d 851, 852 (6th Cir.). Similarly, courts have allowed a judge or magistrate who issues a search warrant to read an affiant's preliminary statement and subsequent account of supporting facts together in determining whether there is a substantial basis underlying the affiant's claim that there is probable cause to believe contraband is where the affiant says it is.
I.C.R. 41(c) authorizes daytime execution of a search warrant unless, for reasonable cause shown, the issuing authority provides in the warrant for nighttime execution. However, neither the rule nor the cases interpreting it defines "daytime," unlike a number of other jurisdictions. E.g., Fed.R.Crim.P. 41(h) (daytime extends between 6:00 a.m. and 10:00 p.m. local time); United States v. Liebrich, 55 F.2d 341 (D.C.Pa. 1932) (holding, before adoption of 41(h), that daytime extends from at least thirty minutes before sunrise to thirty minutes after sunset); Funches v. State, 53 Ala. App. 330, 299 So.2d 771 (1974) (daytime exists while the light from the sun allows recognition of a person's features); United States v. Ortiz, 311 F. Supp. 880 (D.C.Colo. 1970) (a daytime search is proper where there is sufficient light to recognize a person's features and to read the search warrant). The natural light of day may extend visibility beyond a locality's official sunset.
Applying these standards to the case at bar, we find the description of the premises to be searched sufficiently exact to pass muster. E.g., Martin v. State, 165 Ga. App. 760 (1) ( 302 S.E.2d 614) (1983); Toole v. State, 146 Ga. App. 305 (3) ( 246 S.E.2d 338) (1978); United States v. Ortiz 311 F. Supp. 880, 883 (D. Colo. 1970). Cf. Vaughn v. State 141 Ga. App. 453 (1) ( 233 S.E.2d 848) (1977).