Cite as U.S. v. Wojcik, 1986 WL 10622 (N.D.Ill. 1986) United States of America, Plaintiff, v. Donald J. Wojcik, Defendant. No. 86 CR 303. United States District Court, N.D. Illinois, E.D. Aug. 28, 1986. MEMORANDUM AND ORDER PAUL E. PLUNKETT, District Judge. Background On or about January 29, 1985, federal agents entered the defendant's home armed with a search warrant authorizing the seizure of one MAC-10 9 mm silencer, one fully automatic MAC-10 firearm, and documents regarding the possession and receipt of silencers and equipment for fully automatic weapons, including receipts, correspondence and notes. The agents seized: (1) one Ruger Mini-14 conversion kit; (2) one plastic bag containing M-16 parts (two auto sears, one trigger, one disconnector, two selectors, one hammer, and two AR-15 selectors); (3) S.W.D., Inc. invoices dated 8/16/84 in plastic bag, MAC-10 parts; (4) two .223 caliber Olympic Arms machine guns, model CAR-AR (serial numbers Z-0750 and Z-0751); and (5) two .223 caliber Ruger Mini-14 rifles (serial numbers 181-03224 and 181-03708). Thus, only the documents seized were listed in the search warrant. Defendant was indicted by a special grand jury in April 1986 on three counts of possession of unregistered firearms in violation of 26 U.S.C. section 5861(d), namely the two Olympic Arms machine guns and the Ruger Mini 14 conversion kit which would convert the Ruger Mini 14 semi-automatic rifle into a fully automatic machine gun. Defendant moved to quash the search warrant and suppress the evidence seized. That motion was denied by this Court July 3, 1986. The government now moves to supplement the record with the affidavit of Special Agent Douglas Moore, the agent who executed the search warrant. Defendant moves for reconsideration of the denial of the motion to suppress. Government's Motion to Supplement the Record A district court may consider affidavits in ruling upon pretrial motions in criminal cases including motions to suppress. Fed.R.Crim.P. 47; 3A Wright, Federal Practice and Procedure: Criminal 2d section 802; see United States v. Cohen, 489 F.2d 945, 951-52 (2d Cir. 1973); United States v. Hutchins, 489 F.Supp. 710, 711 (N.D.Ind. 1980). Thus, in ruling upon defendant's motion to reconsider, the Court will examine the affidavit of Agent Moore. Since Agent Moore's affidavit becomes part of the record on the motion to reconsider, the government's motion to supplement the record is superfluous. Government's Motion to Supplement is dismissed as moot. Defendant's Motion To Reconsider Defendant contends that the weapons and documents seized on January 29, 1986 are inadmissible because they were seized in violation of the Fourth Amendment. Specifically, he contends that the search warrant is invalid because the supporting affidavit enunciated "hearsay, conjecture, supposition and stale information," so the warrant was not issued on probable cause. In addition, the weapons were not listed on the search warrant and do not fall within any exception to the warrant requirement. The government counters by claiming the warrant was properly issued upon probable cause. And even if the warrant was invalid, the "good faith" exception enunciated in United States v. Leon, 104 S.Ct. 3405 (1984) makes the evidence admissible. It is clear that the weapons seized were not authorized by the search warrant. The warrant authorized the seizure of one silencer and one MAC-10 automatic. Neither item was in fact seized, and the Olympus Arms machine guns and Ruger Mini-14 conversion kit were not listed in the warrant. However, the weapons were validly seized under the "plain- view" exception to the warrant requirement. The plain view doctrine permits the warrantless seizure of private possessions where three requirements are satisfied: First, the police officer must lawfully make an initial intrusion or otherwise properly be in a position from which he can view a particular area. Second, the officer must discover incriminating evidence inadvertently, which is to say, he may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain-view doctrine only as a pretext. Finally, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Texas v. Brown, 460 U.S. 730, 737 (1983) (Rehnquist, J.) quoting Coolidge v. New Hampshire, 403 U.S. 443, 465-470 (1971). In Brown, the plurality opinion's formulation of the three part test was accepted by two other members as well. Brown, 460 U.S. at 746 (Powell, J., concurring). In addition, the remaining three members of the court adopted a very similar test. Id. at 748-9 (Stevens, J., concurring). The first part of the test is the requirement that the officer lawfully make an initial intrusion into the location where the items were seized. Here, the agents made lawful intrusion into the defendant's home if the search warrant was valid. Brown, 460 U.S. at 748 (Stevens, J., concurring). The warrant was valid. The fact that the affidavit upon which the warrant was issued referred to invoices up to one year old does not cause the warrant to be fatally flawed. The amount of delay which will make information in an affidavit stale depends upon the particular facts of each case. United States v. Freeman, 685 F.2d 942, 951 (5th Cir. 1982). A case arising out of the same investigation as the present case was recently decided by another court in this District. United States v. Wachowski, No. 86 CR 304 (N.D.Ill. May 16, 1986) (Bua, J.). "[W]hen the affidavit clearly shows a longstanding ongoing pattern of criminal activity, even if fairly long periods of time have lapsed between the information and the issuance of the warrant, the information need not be regarded as stale." This Court agrees with Judge Bua that the information in the affidavit was not stale. Possession of firearms (as defined in 26 U.S.C. section 5845) is shown in Agent Van Ambrugh's lengthy affidavit to be the type of criminal activity in which the contraband is unlikely to disappear quickly. The magistrate may rely on common sense and draw on his or her own experience in determining that probable cause existed to believe that contraband would be found in defendant's home several months after the date of the S.W.D. invoices. Illinois v. Gates, 462 U.S. 213 (1983). Agent Van Ambrugh is a sufficiently reliable source to enable the magistrate to make a "common-sense" determination of probable cause. The affidavit traced the steps through which the Bureau of Alcohol, Tobacco, and Firearms (BATF) obtained the invoices, and why the agent believed the invoices accurately reflected the goods defendant received. The magistrate could reasonably have found probable cause existed at the time of issuance of the search warrant based upon the nature of the goods. Firearms do not decay or dissolve on their own, unlike some narcotics. Since defendant allegedly purchased only a few conversion kits and silencers, it was unlikely defendant was planning on selling the items purchased. And it was unlikely defendant would simply discard the items purchased. Thus, it was reasonable for the magistrate to believe the items listed on the search warrant were still at defendant's residence. The affidavit therefore indicated sufficient facts for the magistrate to conclude there was probable cause to believe illegal firearms were in defendant's possession. Hence the warrant was valid and the agents were lawfully present in defendant's home. The second part of the "plain view" test, inadvertent discovery, is concededly present here. The third element of the "plain view" exception to the warrant requirement is that it must be immediately apparent to the agents that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Texas v. Brown, 460 U.S. at 737; Coolidge, 403 U.S. at 466. The words "immediately apparent" have not been interpreted to require the police officer to know that certain items are contraband or evidence of a crime. Rather, the rule is: The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. [Payton v. New York, 445 U.S. 573, 587 (1980)]. As the Court has frequently remarked, probable cause is a flexible, common sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U.S. 132, 162 (1975) that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false. 460 U.S. at 741-2. In addition, the Seventh Circuit "does not interpret the 'immediately apparent' requirement to connote apparent at first glance, but, rather, apparent without other information than that which the officers properly possessed before their search was over." United States v. McDonald, 723 F.2d 1288, 1295 (7th Cir. 1983) cert. denied, 104 S.Ct. 2360 (1984); United States v. Thomas, 676 F.2d 239, 244 (7th Cir. 1980) cert. denied, 450 U.S. 931 (1981). It is clear that the incriminating nature of the weapons seized was "immediately apparent" to the agents in defendant's home. A well-trained federal agent, operating under a search warrant that contemplated the uncovering of illegal firearms, would instinctively suspect that additional weapons discovered may be contraband. Furthermore, Agent Moore's affidavit states that he looked at the Olympic Arms rifles and performed some simple tests to see if they were semi-automatic or automatic. Specifically, Agent Moore states that he was able to fully rotate the selector switches which meant the weapons had been modified to fire as automatic rifles. And he states that he pulled the triggers and determined that they also had been converted to fire automatically. The agents did not have to know the weapons were automatic in order to seize them pursuant to the "plain view" exception. Thus, defendant's claim that the agents could not tell with the naked eye that the weapons were altered to fire automatically, even if true, would not render the plain view exception inapplicable. This Court is satisfied that the nature of the weapons as contraband was "immediately apparent" to the agents in defendant's home. All the requirements of the plain view exception are met, and the items were lawfully seized. For the foregoing reasons, defendant's motion to reconsider this Court's refusal to suppress the weapons from evidence is denied.