NO. 951-00







KELLER, P.J., filed a concurring opinion in which KEASLER, and HERVEY, JJ., joined.


I join the Court's opinion. The present case involves the scope of a search warrant. We are asked to decide whether a warrant to search the premises of a business extends to a residence area contained within the business premises. The Court implicitly concludes that the trial court was within its discretion in finding the residence area to be part of the business premises. Although I agree with this conclusion, our opinion would be more helpful to law enforcement and the bench and bar if we explained in detail why the search was permissible here. Our opinion would also be more helpful if we analyzed whether the police could reasonably believe that the properties were the same rather than whether the properties were in fact the same. That the properties involved are in fact the same may make a search valid only by happenstance, i.e. a search that appears to exceed the scope of the warrant can be valid if it is later determined that the search did not in fact exceed the warrant's scope. In the present case, however, the police had sufficient reason to believe that the residence area was a part of the business premises at the time the search was conducted, and hence, I take this opportunity to explain the factors that made this search valid in appearance as well as in reality.

A. Background

Based upon information provided by a confidential informant and an undercover police officer, the Houston Police Department obtained a warrant to search the premises of a business called U.S. Apparel, located at 5627 Star Lane, Suite A. The business was suspected of selling counterfeit merchandise. The search warrant provided:

YOU ARE THEREFORE COMMANDED to forthwith search the place therein named, to wit: U.S. Apparel which is located at 5627 Star Lane, Suite A, Houston, Harris County, Texas, with the authority to search for and to seize any and all items which are more particularly described in the attached affidavit that may be found therein including, but not limited to counterfeit Levi, Strauss & Co. jeans, counterfeit Nike shirts, counterfeit merchandise, documents and records of U.S. Apparel pertaining to counterfeit merchandise, documents and records pertaining to ownership of U.S. Apparel, documents and records showing the names, addresses, and telephone numbers of employees of U.S. Apparel and/or any other witnesses with information concerning the operation of U.S. Apparel, and any computer equipment used in the operation of U.S. Apparel.

From the outside, the building occupied by U.S. Apparel appeared to be divided into two halves, each with its own address. One half of the building was occupied by U.S. Apparel at 5627 Star Lane, Suite A while the other half was occupied by Texas International Motors at 5625 Star Lane. U.S. Apparel had no relationship with Texas International Motors. Near the 5625 entrance to Texas International Motors was a gated, unmarked door. This door led to a residence area, but that fact could not be ascertained from viewing the building's exterior; the door appeared to be simply another ground floor entrance into the building.

The police executed the warrant by entering the marked entrance for U.S. Apparel. Inside they found a warehouse area and some business offices. In addition, on a second floor loft, the police found a door marked by the numbers "5625" as if it were an address. This door was unlocked, and when it was opened, a residence area was revealed, with appellant and two women found inside. In response to questioning, appellant admitted that he was the owner of U.S. Apparel. When asked for identification, appellant said that he had some ID in a desk downstairs in his office. An officer took appellant downstairs and appellant retrieved his driver's license from a desk. The driver's license showed appellant's address to be "5627 STAR LN NO A."

Appellant claimed that the residence area was in fact his residence and that it had a separate address than the business U.S. Apparel. (1) Against appellant's wishes, the police searched the entire residence area, including a locked safe. As a result of this search, officers found and seized cocaine, drug paraphernalia, and a semiautomatic pistol. It was later discovered that the unmarked outside entrance led to the residence area. However, while the interior door marked "5625" gave an occupant of the residence area access to U.S. Apparel's warehouse, there was no access from the residence area to Texas International Motor's portion of the building.

In a motion to suppress, appellant contended that the search of the loft residence area violated search and seizure provisions in the Fourth Amendment, the Texas Constitution, and the Texas Code of Criminal Procedure because the residence area was not within the scope of the search warrant. The trial judge held a hearing, at which witnesses testified to the facts outlined above. In denying the motion to suppress, the trial court found that the loft residence area was not a separate address from the business address of U.S. Apparel and that the "5625" on the door was fictitious:

And my opinion is they had a search warrant for 5627 Star Lane. The fact that the defendant carved out a portion of 5627 and placed a designation of 5625 on the door that entered into another portion of 5627 doesn't mean all of a sudden now that the officers have to go back and get a new search warrant. The State brought out if they got a search warrant for 5625, they would be searching the International Motors Company next door, which has no connection to this room that is designated 5625 found within 5627. However, would you ever get a warrant to this room with the 5625 posted on the door without their [sic] being a confusion as to which 5625 we are talking about? To me, the warrant was for 5627, Suite A. They searched 5627, Suite A....And, again, I am not of the opinion that we can create a fictitious number and I can take a room that just happens to have a separate entrance and I can fictitiously put an address on it that has no bearing to relevance of where we really are and say, okay, that's a separate residence or a separate building and now you can't come in there because I think what you do is allow a person to hide behind the law and that is not what the intent of the law is. They searched 5627 as they had a reasonable right to do. In doing so, they came upon these drugs. And I think they properly seized them.

(Ellipsis inserted).

Subsequently appellant pled guilty, and in accordance with a plea agreement the trial court placed him on deferred adjudication probation. Appellant appealed the motion to suppress issue. The Court of Appeals reversed, agreeing with appellant's contention that the loft residence area was outside the scope of the search warrant. (2) The court held that the numbers on the door marked a different address, showing that U.S. Apparel and the loft residence were not the same entity. (3) The court also held that the residence could not have been reasonably confused with the premises of U.S. Apparel because appellant informed the officers that the loft residence area was his residence and because the area contained the amenities of a residence - a bedroom, bathroom, kitchen, and living room. (4) Finally, the court of appeals noted that, as far as the officers knew at the time, the door marked "5625" could have actually been a door to the neighboring business, Texas International Motor, and entering that door would have been a violation of that business' right to privacy. (5)

B. Analysis

1. The issues

Fourth Amendment (6) claims are subject to a bifurcated standard of review. Appellate courts afford trial courts almost total deference on issues of historical fact and on mixed questions of law and fact that turn on an evaluation of credibility and demeanor. (7) Mixed questions that do not turn on credibility and demeanor are reviewed de novo. (8)

Under the Fourth Amendment, a search is not rendered illegal for exceeding the scope of a search warrant so long as those executing the warrant reasonably believed at the time that the place searched was covered by the warrant. (9) In Maryland v. Garrison, police officers procured a warrant to search an apartment building's "third floor apartment," occupied by Lawrence McWebb. (10) Based upon information supplied by a reliable informant, an inquiry of the utility company, and a visual inspection of the apartment building's exterior, the police reasonably concluded that there was only one apartment on the third floor and that the apartment was occupied by McWebb. (11) In fact, however, there were two apartments - one occupied by McWebb and the other occupied by Garrison. (12) When the police entered the third floor, the doors to both apartments were open. (13) Before they discovered that there were in fact two apartments, officers had already entered Garrison's apartment and found drugs and drug paraphernalia. (14) The Supreme Court held that this search of Garrison's apartment did not violate the Fourth Amendment because, before discovering the mistake, the police "perceived McWebb's apartment and the third-floor premises as one and the same." (15)

In light of Garrison, the present case raises the following question: At the time the search was conducted, was it reasonable for the police to believe that the loft residence area was a part of U.S. Apparel's premises? This question is a mixed question of law and fact under Guzman. The question contains a subsidiary issue of historical fact that turns on the credibility and demeanor of the witnesses: What information did the police possess? We must give almost total deference to the trial court's ruling in answering that subsidiary issue. Once this subsidiary issue is answered, however, the main question becomes one that does not turn on credibility and demeanor and is therefore reviewed de novo.

In the present case, the police testified that they were unaware of the existence of the residence area at the time the search warrant was obtained and at the time they entered U.S. Apparel to execute the warrant. The police also testified that they believed that the residence area was a part of the U.S. Apparel address and within the scope of the warrant. The trial court was free to believe these statements. Giving almost total deference to the trial court's decision with regard to this testimony, we hold that the record supports a finding that the police possessed no information about the properties other than what was apparent to them at the time the search was conducted. (16)

The important question then, is whether, based upon the information possessed at the time, the officers could have reasonably concluded that the residence area was a part of the premises of U.S. Apparel. I have conducted research both in Texas and in out-of-state cases to assist in answering this question, and that research has failed to reveal any cases directly on point. All of the cases I found appear to have factual differences significant enough to render them distinguishable from the case at hand. Nevertheless, a review of the cases in this area of the law is helpful in illuminating the factors that are relevant to the determination before us.

2. The cases

Ordinarily, a search warrant must specify which unit of a multi-unit complex is subject to the search. (17) An exception has been recognized, however, when the defendant has control of the whole premises, (18) or when the officers did not know or had no reason to know that the structure contained multiple units. (19) Whether the search of a particular unit in a multi-unit complex falls within the scope of a warrant is a related but different question from whether a warrant to search a multi-unit complex was valid upon issuance. As Garrison illustrates, a warrant that erroneously describes a multi-unit building as a single unit is valid upon issuance so long as the officers obtaining the warrant reasonably believed at the time that the building was a single-unit building. Likewise, the search pursuant to that warrant is valid so long as the officers conducting the search reasonably believe they are searching a single unit, even though that belief later turns out to be erroneous.

A more complex question is raised by a defendant's control over multiple units. If a warrant can issue for the entire building of a multi-unit complex where all the units are controlled by the defendant, then obviously such a search warrant could be legally executed. A more difficult case is posed, however, by a search warrant that covers only a portion of a building and some question is raised about whether certain units are included within the search warrant's description. Common ownership, by itself, does not resolve the issue: a warrant to search a business would not authorize a search of a residence owned by the same person across town. And we should not be prepared to hold that a warrant to search a business automatically encompasses a residence found in the same building and owned by the same person. But a person's common ownership of different sections of a building is certainly a factor to consider in determining the reasonableness of believing that the different sections were all covered by the description contained in the search warrant.

Perhaps the classic example of a separate apartment upstairs from a business can be found in United States v. Kaye. (20) In that case, the entire building was leased to the defendant, but the building had two exterior doors separated by a partition. (21) One door, shown as 3618 14th Street, N.W., led to the defendant's business, an electronics store, which occupied the first floor and the basement of the building. (22) The other door opened from the street to a staircase that led to a second-story apartment. (23) The numerals "3618 " appeared above this other door. (24) There was no door or direct passage between the store and the apartment. (25) There were two electric meters, one for the store and one for the apartment, but only one gas meter. (26) Signs for the business were across the entire width of the building, below the windows of the second floor apartment. (27) The apartment was clearly a set of living quarters, although the defendant had a desk and kept some files there. (28)

The police obtained a warrant to search "the premises known as 3618 14th Street N.W." (29) Pursuant to that warrant, the police initially searched the first floor and basement of the building. (30)

The street door to the second floor apartment was locked, and the police asked the store clerk for a key. (31) The store clerk replied that her employer - the defendant - had the only key to that door. (32) After the store clerk tried unsuccessfully to reach the defendant, the police forced the door and searched the apartment. (33) They found a stolen Ben & Howell projector, which they seized. (34) The defendant filed a motion to suppress the projector, the motion was denied, and he appealed. (35)

The D.C. Circuit held that the evidence should have been suppressed. (36) The court explained that the "store and apartment were not an integrated unit but were two separate and distinct parts of the building. There was no access to the apartment from the store and no apparent connection between the two." (37)

Other courts have invalidated searches of adjacent areas owned by the same person on the basis that those areas fell outside the scope of the search warrant. In Keiningham v. United States, the defendants occupied two houses on adjacent lots. (38) A warrant to search one of the houses did not authorize search of the other despite the fact that a door had been freshly cut through a partition between the two lots. (39) In State v. Erickson, the police obtained a warrant to search the west half of a duplex. (40) Both halves of the duplex had their own basement but there was a door at the basement level that connected the two. (41) Although the door had a padlock on it, the door had apparently been tampered with and was unlocked. (42) The North Dakota Supreme Court found that the warrant did not authorize a search of the basement of the other half of the duplex. (43) In Commonwealth v. Hall, the police secured a warrant to search a second floor apartment. (44) Although the same person controlled both the second and third floor apartments, the Massachusetts Supreme Court held that a search of the third floor apartment fell outside the scope of the warrant. (45)

However, in United States v. Prout, the Fifth Circuit upheld a search of a residential area within the same building as a business although the residential area was not described in the warrant. (46) The warrant named the premises to be searched as "Quick Sales Real Estate Office, 1001 Nunez Street, New Orleans, La." (47) The real estate office was a one story building attached to a slightly taller two story building, in which a residence was located. (48) The residence had a municipal address of 441 Newton Street. (49) But the Nunez street entrance, which was unmarked, opened onto a common foyer shared by the real estate office and the kitchen for the residence, each of which had an interior door which opened into the foyer. (50) Above the interior door to the residence was the number "441 RE." (51) On each occasion that he was observed by surveillance agents, the defendant, along with another person named Amos, entered the residence through the Nunez street entrance. (52) The police entered the Nunez street entrance and searched the residence. (53) In upholding the search, the Fifth Circuit concluded: "Given the physical layout of the premises and their use by Prout and Amos, as observed by surveillance officers, a warrant describing the premises as '1001 Nunez Street' was sufficient" to authorize a search of the residence. (54)

Several other cases have held that a separate physical address does not exclude a place from the scope of a search warrant if other factors show that the place searched is connected with the place described in the warrant. In Cannady v. State, the search warrant permitted a search of an office suite at 6927 Long Point Road. (55) An adjacent office suite existed in the same building but had an address of 6929 Long Point Road. (56) The partitions between the two office suites had been removed, and police executing the warrant saw men running from the 6927 area to the 6929 area. (57) We held that a search of the 6929 address was reasonable under the circumstances. (58) In Short v. District of Columbia, the search warrant described a shop at 1025 H Street, N.E. (59) At the back of the shop, separated from the rest of the premises by a partial partition and a curtain, was a room that used to have an entrance at 738 Eleventh Street, but that entrance had been boarded up, and the 1025 H Street entrance was the only way to access that particular area. (60) The court held that this back room was a part of the shop at 1025 H Street. (61) In United States v. Evans, the police had a warrant to search 1000 Baldwin Street, which was the south half of a duplex house. (62) The north half of the duplex had the address 1004 Baldwin Street and belonged to a different family. (63) Each side had an attic, with a partition wall separating the attics in the two halves of the duplex. (64) During their search of the south half of the duplex, the police discovered that a door had been cut through the partition between the attics and that the entrance on the 1004 side had been sealed off. (65) The police searched the attic on the 1004 side and found an illegal still. (66) The Sixth Circuit agreed with the trial court's holding that the entire attic was a part of the 1000 portion of the premises. (67)

In other cases, courts have held that a search warrant covers structures not described in the warrant if the structures appear to be a part of, or appurtenant to, the property described in the warrant. In United States v. Wright, the police obtained a warrant to search "the premises known as The New Plaza Lounge, 725 Monmouth Street, Newport Kentucky, being a three-story red brick building." (68) The defendant contended that this warrant did not authorize the search of a one-story cement block building attached to the three story brick building. (69) The Sixth Circuit held that the trial court was justified in concluding that one story cement building was a part of the three story brick building, and hence, covered by the warrant. (70) In Commonwealth v. Scala, the warrant authorized a search of "the entire apartment located on the second floor above a business establishment." (71) While only two floors were evident from exterior observation, the building also had a third floor attic. (72) In concluding that the third floor attic was "part and parcel of the second floor apartment," the Massachusetts Supreme Court observed: "Its single entrance was via the second floor apartment; it was directly above and adjacent to that apartment and had no separate address; there were no other apartments sharing the attic, which apparently had no connection with the first floor business establishment." (73) Other courts have held a warrant's description of a business on the first floor of a building to include a basement (74) or a balcony (75) when the owner of the first floor business had exclusive access to the area in question. The Supreme Court of Indiana has held that a search warrant for a particular residential address empowers the police to search a tent in the backyard, even though the tent may be used as separate living quarters. (76)

Finally, one court has held that a warrant to search the offices of a brokerage firm also permitted the search of a law firm's offices, when the offices of the brokerage firm and the law firm were commingled. (77) Although most of these cases address the question of whether the search exceeded the scope of the warrant in actual fact, they are also instructive in determining under what circumstances a police officer can reasonably believe that a particular area falls within a warrant's description.

3. Application

While the present case shares some common elements with the cases in which a search of adjoining premises was found to fall outside the scope of the warrant, there are also striking differences. In all of the cases, the properties were under common ownership. While Keiningham involved different buildings, Kaye, Erickson, and Hall involved a single building, as in the present case. However, in Kaye, Keiningham, and Erickson, the premises searched had a separate address on the exterior of the building from the premises described in the warrant, but in the present case, the residence area displayed no separate address on the building's exterior. In Kaye, Keiningham, and Hall, there was no interior connection between two premises involved, but in the present case, an interior door connected the warehouse of U.S. Apparel to the loft residence area. In Kaye, the door to the upstairs apartment was locked at the time of the search, but in the present case, the interior door to the loft residence area was unlocked. In addition, in the present case, appellant's personal identification (his driver's license) was inside a desk in the warehouse/office area, and the address of U.S. Apparel - not the supposedly separate address displayed on the interior door to the loft residence area - was listed as appellant's residence. And the numerals displayed on the interior door to the loft residence area represented an address that the police knew belonged to an unrelated business next door.

The present case appears to be more like Prout. In both cases, a single building had two separate addresses, an interior door connected the place described in the warrant to the area that was searched, and that interior door posted an address number. And in both cases the building's exterior failed to place the police on notice that the area searched was separate from the place described in the warrant. In Prout, the interior door led to the residence whose different address was posted outside, but the exterior door facing the street described in the warrant failed to place the police on notice that there were two separate addresses, and the police saw the defendant entering the residence through that unmarked exterior door. In the present case, an address number posted on the interior door to the residence matched an address posted on the building outside, but the residence had no connection to that part of the building. The exterior door that led to the residence area had no marked address, the police encountered the defendant through the interior door from the warehouse area, and the defendant's driver's license listed the address for U.S. Apparel as his home address.

The present case also shares some characteristics with the cases that have upheld the search of an area determined to be a part of, or appurtenant to, premises described in the warrant. These cases generally focus on whether there was a meaningful separation between the two areas in question and whether the disputed area could be accessed only from the premises described in the warrant. While a wall and an interior door divided the warehouse from the loft residence, when the police came upon the door, it appeared to lead to an area that was contained within the warehouse premises: the door was on a second floor loft within the warehouse and was unlocked. The Court of Appeals suggested that entry through that interior door might have appeared at the time to be a violation of Texas International Motors' right to privacy because the interior door was marked with that business's address. But the residence area did not belong to Texas International Motors; that business's right to privacy is not at issue here. And the police had no reason to believe that a residence lay behind the door in question until the door was actually opened. Before that point, the only apparent possibilities were that the door led to the adjacent business next door or it led to another part of the U.S. Apparel's warehouse. Given the placement of the door and the unlocked status of that door, the police had sufficient reason to believe that the door actually led to another part of U.S. Apparel, and it was not unreasonable for law enforcement agents to open the door to ascertain where it led. Had that door led to a storeroom with no other entrance or exit, no one would contend that the police exceeded the scope of the search warrant.

Once the interior door was opened, the police had every reason to believe that the address posted on the door was a fictitious one. The police knew at that point that no separate address for this residence was posted on the building's exterior. They also had probable cause to believe that the address posted on the interior door could not be a correct address because it belonged to an unrelated business next door. Upon discovering the defendant and finding out that he owned U.S. Apparel, the police had further reason to believe that the residence area was in fact a part of U.S. Apparel. The reasonableness of such a belief was further bolstered by the fact that appellant kept his driver's license in the warehouse/office portion of the premises and that this driver's license listed appellant's home address as 5627 Star Lane No A - the address of U.S. Apparel. Although the residence area did have a separate entrance, this entrance was not marked on the exterior of the building, and it was on the ground; so, the police had no reason to believe, at the time they discovered the area's residential character, that there was another entrance. When they did ascertain the existence of a separate entrance, the police also discovered that the residence area had no connection with Texas International Motors, whose address was displayed on the interior door. This discovery added further support for a belief that the address so displayed was fictitious, designed merely to confuse law enforcement agents.

So the police had numerous reasons to believe the residence area was a part of U.S. Apparel: a shared, unlocked interior door from a loft within the warehouse premises, no separate exterior address markings, interior address markings that appeared to be incorrect, the same person owning both premises, a driver's license that was kept in the warehouse part of the building, and the fact that the driver's license listed U.S. Apparel's address as appellant's home address. The record before us supports a holding that, as a result of the circumstances present at the time the search warrant was executed, the police reasonably believed the loft residence area to be a part of U.S. Apparel.

KELLER, Presiding Judge

Date filed: May 16, 2001


1. While U.S. Apparel's address of 5627 A raises the possibility that there might be a 5627 B, no one has claimed that there is a 5627 B. At the motion to suppress hearing, appellant offered an electric utility bill in the name of "Rami Amir," appellant's brother, showing a service address of "5625 STAR LN B." However, Texas International Motors' section of the building was designated simply as "5625" - not 5625 A. Likewise, the loft residence area was marked "5625," not 5625 B. Because the loft residence was not marked with a "B," the trial court excluded the utility bill on the grounds of relevance but allowed its inclusion in the appellate record as a bill of exception.

2. Amir v. State, No. 01-99-00640-CR, slip op. at 4-8 (Tex. App.-Houston [1st Dist.], February 24, 2000).

3. Id. at 5.

4. Id. at 6.

5. Id. at 7.

6. Although appellant advanced claims based upon three different provisions - found in the federal constitution, state constitution, and the Texas Code of Criminal Procedure respectively - the Court of Appeals did not explicitly state which of the three provisions it relied upon except to remark that the "error was constitutional in nature." As the Court of Appeals did not distinguish between state and federal constitutional provisions, I will assume that the protections conferred are the same and resolve this case based upon the Fourth Amendment.

7. Guzman v. State, 935 S.W.2d 85, 89 (Tex. Crim. App. 1997).

8. Id.

9. Maryland v. Garrison, 480 U.S. 79, 86-88 (1987). Or stated another way, the search is legal unless the police knew or should have known that the property searched fell outside the scope of the warrant. Id. at 86.

10. Id. at 80

11. Id. at 81.

12. Id. at 86.

13. Id. at 81.

14. Id.

15. Id. at 88.

16. For example, although appellant submitted a separate utility bill for the residence area, we defer to an implied finding by the trial court that, at the time of the search, the police were unaware of this bill and were unaware that the utilities for the residence area were billed separately from those of U.S. Apparel (if in fact they were).

17. W.C. Crais, III, Annotation, Search Warrant: Sufficiency of Description of Apartment of Room to be Searched in Multiple Occupancy Structure, 11 A.L.R.3d 1330, 1332-1333, 2 & 3[a] (1967).

18. Id.; Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000)(exception exists if targets of investigation have access to the entire structure); United States v. Frazin, 780 F.2d 1461, 1467 (9th Cir.), cert. denied, 479 U.S. 844 (1986); Sadie v. State, 488 So.2d 1368, 1372 (Ala. Crim. App. 1986).

19. Crais, at 1333, 1344-1345, 2 & 8 ; Jacobs, 215 F.3d at 768; Sadie, 488 So.2d at 1372.

20. 432 F.2d 647 (D.C. 1970).

21. Id. at 648.

22. Id.

23. Id.

24. Id.

25. Id.

26. Id.

27. Id.

28. Id.

29. Id. at 649.

30. Id. at 648.

31. Id.

32. Id.

33. Id. at 648-649.

34. Id. at 649.

35. Id.

36. Id. at 649-650.

37. Id. at 649.

38. 287 F.2d 126, 129 (D.C. Cir. 1960).

39. Id.

40. 496 N.W.2d 555, 557 (N.D. 1993).

41. Id. at 557-558.

42. Id.

43. Id. at 560-561.

44. 323 N.E.2d 319, 325 (Mass. 1975).

45. Id. at 325-326.

46. 526 F.2d 380, 388 (5th Cir.), rehearing denied 529 F.2d 999 (5th Cir.), cert. denied, 429 U.S. 840 (1976).

47. Id. at 386.

48. Id.

49. Id.

50. Id.

51. Prout, 529 F.2d at 999 (opinion on rehearing).

52. Prout, 526 F.2d at 387

53. Id. at 386

54. Id. at 388.

55. 582 S.W.2d 467, 468 (Tex. Crim. App. 1979).

56. Id. at 469.

57. Id.

58. Id.

59. 300 A.2d 450, 451 (D.C. App. 1973).

60. Id.

61. Id.

62. 320 F.2d 482, 483 (6th Cir. 1963).

63. Id.

64. Id.

65. Id.

66. Id.

67. Id.

68. 468 F.2d 1184, 1185 (6th Cir. 1972), cert. denied, 412 U.S. 938 (1973).

69. Id.

70. Id. at 1186.

71. 404 N.E.2d 83, 89 (Mass. 1980).

72. Id.

73. Id.

74. State v. Cote, 493 A.2d 1170, 1176-1178 (N.H. 1985).

75. Rainey v. State, 246 N.W.2d 529, 533-536 (Wis. 1976).

76. Sowers v. State, 724 N.E.2d 588, 590-591 (Ind. 2000), cert. denied, U.S. , 121 S. Ct. 118 (2000).

77. National City Trading Corp. v. United States, 635 F.2d 1020, 1023-1025 (2nd Cir. 1980).