Carney v. United States

• Decision Date: 17 November 1947
• Docket Number: No. 11001.,11001.
• Citation: 163 F.2d 784
• Parties: CARNEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

163 F.2d 784 (1947)

CARNEY et al. v. UNITED STATES.

No. 11001.

Circuit Court of Appeals, Ninth Circuit.

August 22, 1947.

Rehearing Denied September 17, 1947.

Writ of Certiorari Denied November 17, 1947.

Morris Lavine, of Los Angeles, Cal., for appellants.

James M. Carter, U. S. Atty., and Ernest A. Tolin, William Strong, and Ray H. Kinnison, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before DENMAN, STEPHENS, and BONE, Circuit Judges.

Writ of Certiorari Denied November 17, 1947. See 68 S.Ct. 165.

STEPHENS, Circuit Judge.

Jesse Carney and Milton Ramsey were indicted in the district court in two counts charging violation of Section 28 of the Criminal Code, 18 U.S.C.A. § 72. Count one, as the record reaches us,¹ charges that the defendants did "willingly, knowingly, counterfeit, and cause and procure to be falsely made, forged and counterfeited, with intent to defraud the United States, certain writings, to-wit: A-14h * * * gasoline ration coupons; * * *." Count two charges that the defendants "did with intent to defraud the United States wilfully, unlawfully and feloniously have in their possession, with intent to utter and publish as true, certain false and counterfeit writings, to-wit: 2250 Series A-14h ration coupons, said defendants, and each of them, then and there knowing the same to be false and counterfeit; * * *."

The defendants were tried and convicted on both counts one and two, and sentenced to imprisonment on each count. They appeal.

There is substantial evidence to support the following statement of facts. Government agents, acting on information given them, made certain investigations and discovered that appellants, Carney and Ramsey, were purchasing certain equipment and articles similar to that used in printing gasoline ration coupons. In making these purchases, it was noted that fictitious names were used. Certain articles requiring priority ratings were likewise purchased. They also observed that the packages purchased by these men were delivered to 2433 Exposition Place. Having secured a search warrant, the agents went to the premises in question and a search first of the garage and then of the residence was made. Counterfeit coupons found in the house and a press, plates, inks, type, etc., found in the garage were seized. Counterfeit coupons and receipts for supplies for the making of such coupons were found on the persons of the appellants. Motions to suppress this evidence on the ground that the search and seizure was unlawful under the Fourth and Fifth Amendments to the Constitution were denied.

Appellants contend that the district court erred in holding that there was probable cause shown in the affidavit upon which to issue a search warrant, and that it also erred in denying the motion to suppress the evidence obtained through the use of the alleged illegal warrant.

It is claimed that the warrant was invalid in that the affidavits upon which it is based fail to show facts that an offense had occurred, and that the warrant does not adequately describe or identify the property to be seized.

The evidence of crime, which the appellants sought to have suppressed, was obtained in the following circumstances. Having seen the appellants enter the garage in the rear of the premises, carrying several packages, the agents followed. Upon entering, the agents saw a printing press and other articles used in the printing of gasoline ration coupons. Appearances suggested a sudden cessation of operations. They sought to serve the heretofore mentioned search warrant on appellants, who refused to accept it, and it was placed on a bench near the press Both appellants were thereupon placed under arrest. The press appeared to have been in recent operation. The agents and appellants then entered the house, Ramsey bringing the search warrant along, having picked it up as he left the garage. Numerous gas ration coupons which the agents thought to be counterfeit were found in the house.

Of course, no search warrant was necessary for search of the garage, since the Fourth Amendment does not apply to buildings detached from the residential structure. In Earl v. United States, 9 Cir., 4 F.2d 532, the court stated: "We are of the opinion that, under the circumstances disclosed in the evidence, a search warrant was unnecessary, and that the case discloses no unreasonable search or seizure. The seizure was made in a garage, which the plaintiffs in error occupied under a lease. The garage was the basement of a dwelling house, with which it was wholly unconnected, and which was leased to and occupied by other tenants. So far as it concerns this case, the garage was in the position of a detached building, occupied and used only for garage purposes. * * * A garage, such as that in question here, is not a `house,' within the protection of the constitutional amendment. It is no more immune from search than would be a barn or other out-building." See Vaught v. United States, 9 Cir., 7 F.2d 370, and Gay v. United States, 9 Cir., 8 F.2d 219, 220, wherein it was said: "* * * we deem it immaterial whether there was a valid search warrant, for clearly, under the circumstances, no search warrant was necessary. The garage was a detached building, separated three or four feet from the residence, and unconnected therewith." As stated in Vaught v. United States, supra, 7 F.2d pages 370, 371, "We can see no ground for the contention that the search and seizure were illegal. It was plain that the building was not a home or residence, nor being used as such. The odors which come from it were of beer, and the things seen in the building were such as used in making beer. There was enough to justify the reasonable belief that defendant was at the time engaged in the commission of offenses defined * * * and to warrant seizure of the beer and the instrumentalities used in making beer."

As to the house, assuming it to be a dwelling, we find the affidavits sufficient for issuance of the warrant. In Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 549, 69 L.Ed. 1032, the court stated: "In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched, and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant." See Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; United States v. McGuire, D.C., 300 F. 98, 102. In United States v. Bookbinder, D.C., 278 F. 216, affirmed, 3 Cir., 287 F. 790 certiorari denied 262 U.S. 748, 43 S.Ct. 523, 67 L.Ed. 1213, a warrant was held to be validly issued on an affidavit that certain liquor described therein had been smuggled. We agree that the requisite of probable cause was satisfied in the instant case. In Angello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, 51 A.L.R. 287, 409, 69 L.Ed. 543, 39 A.L.R. 790, Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, 51 A.L.R. 409, the court stated: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted." In Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543, 39 A.L.R. 790, the court stated: "When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution." Further, it has also been suggested that articles which a person unlawful possesses are not protected by the amendments in question. See Carroll v. United States, supra; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775; United States v. Seltzer, D.C., 5 F.2d 364; Milam v. United States, 4 Cir., 296 F. 629; Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453.

We hold that the issuance of the search warrant was proper, that it was a valid warrant, that the evidence justified the agents in entering, arresting the appellants and in seizing evidence of the crime and no error was committed by the court by refusing to suppress the evidence which was seized in the house and as well in the garage.

It is next contended that the court erred in its decision that the indictment and each count thereof stated an offense in violation of the laws of the United States. It is claimed by the appellants that the indictment does not state an offense in that gasoline ration coupons are not "writings" but are entirely printed and hence not within the definition of "other writings" as that term is used in 18 U.S.C.A. § 72.

It is our opinion that gasoline ration coupons come within "other writings" under 18 U.S.C.A. § 72. See United States v. Serpico, 2 Cir., 148 F.2d 95; United States v. Michener, 67 S.Ct. 1509. The point is inherent in the latter case, and the Supreme Court's reversal is tantamount to holding against appellant on it.

It is also claimed that there was error in indictment charges two offenses growing out of the same act, contending that it would be impossible for a person to make, forge and counterfeit gasoline ration coupons without having possession. As stated by the trial judge, the statute defines two separate offenses, that is, counterfeiting documents as charged in the first count and...