United States v. Falloco

Citation277 F. 75
Decision Date07 January 1922
Docket Number4496,4514.
PartiesUNITED STATES v. FALLOCO. SAME v. ROSS.
CourtUnited States District Courts. 8th Circuit. Western District of Missouri

Samuel M. Carmean, Asst. U.S. Atty., of Kansas City, Mo., and Byron H. Coon, Asst. U.S. Atty., of Joplin, Mo.

E. H Gamble and James M. Rader, both of Kansas City, Mo., for defendants.

VAN VALKENBURGH, District Judge.

While these two cases arise out of distinct transactions, and involve different facts and circumstances, the same principle is involved, and both motions were heard together. A single ruling will dispose of both applications. The seizures in both cases were made by police officers. In the Falloco case the defendant's premises consisted of a house, barn, and shed, all of which were within the same inclosure; that is to say, situated upon the same lot of ground in Kansas City, Mo. The officers passed from the shed through a sort of harness room and through a door which led into an underground apartment; that part of the ground in which this latter apartment was situated being higher than that upon which the shed stood. They there found a still, some whisky, and some mash for use in making whisky. The defendant was present and in charge. The still was in operation. They arrested the defendant and turned him and a sample of the whisky over to federal officers, and this prosecution resulted. The attention of the officers was directed to the property in question by smelling the odor of the distillation while walking their beat on the street along which the building was located. Their sense of smell led them to the hidden illicit apparatus and product. They had no search warrant.

In the Ross Case the officers had been directed by their superiors of the police department to proceed to the Ross premises, where there was reason to believe that the illicit manufacture of whisky was in progress. As they approached the house the fumes of the distillation were distinctly perceptible. They demanded admission to the house, which was subsequently granted, and they gained access to one of the rooms in which a considerable quantity of liquor was found, and beneath the floor was found a still in operation and about 17 barrels of mash. Here again the officers had no search warrant.

The defendants base their application for a suppression of this evidence upon the ground that the relationship existing between the police officers and the enforcement officers of the United States was of such a nature as to make the former substantially the representatives of the government, or, at least, to subject them and their acts to the provisions of the federal Constitution, and more specifically the Fourth and Fifth Amendments thereto. A review of the testimony is essential to the proper application of the legal principles involved.

Mr Shrader Howell, called on behalf of the defendants, testified that he was formerly, and at the time these transactions arose, federal prohibition director for this district; that along in April, 1920, under the former board of police commissioners, he arranged for a conference with the board in respect to securing co-operation between the state and federal authorities by reason of the concurrent jurisdictions. He said:

'We did have that conference, I think, with Mayor Cowgill and Mr. Ransom and Mr. Halpin. At that time I think the state law was not in effect, * * * but we had a general understanding they would lend every co-operation they could with reference to making arrests. And as near as I can recollect, when the new board came in, in January according to my best recollection, I arranged a conference with the commissioners in connection with George Williams, who was the agent in charge here at Kansas City. * * * The conference with Commissioners Foster and Wilson was very brief; in other words, they merely said they would co-operate and referred me to Chief Edwards, and we had our real talk with him.
'Q. And at that conference you asked him to assist the federal officers in the enforcement of the Prohibition Act? A. Yes, sir.
'Q. What did he say? A. He very promptly said that anything his department could do we could count on.
'Q. Now, from that time forward state whether or not your agents in charge of the enforcement of the Volstead act had conferences with the police officers in regard to the enforcement of the Prohibition Act. A. I know they conferred in the handling of cases with various officers, but I don't know that myself.
'Q. Now, from that time forward, August 1, 1921, do you have any knowledge of the number of cases that were turned over to the federal officers here charged with the enforcement of the Volstead Act? A. Well I know there were a great number, but I couldn't give any definite estimate even.
'Q. There was a working agreement that was in continual process of operation at least from that time forward? A. Yes; they were turning over violators of the Prohibition Act to the federal agents.
'Q. Did you have any conference with either of these two boards of police commissioners upon the subject of procurance of search warrants as a pre-requisite to obtaining of testimony? A. No, sir.
'Q. The subject of search warrants was not mentioned? A. Not that I recall; no, sir.'

Cross-examination:

'Q. This conversation that you had was just a general conversation with the commissioners in reference to the National Prohibition Act, was it, and its application? A. Well, with reference to co-operation between the two departments.

'Q. Now at that time did you tender to the police force or to the commissioners here in Kansas City any of your agents to assist in making raids or arrests? A. No; that matter was not gone into.

'Q. Did you instruct them in what manner to make this evidence? A. No, sir.

'The Court: When you speak of co-operation, Mr. Howell, just describe what you had in mind in this conference. A. What was discussed at that conference was this: At that time the docket was congested, and after conferring with Judge Sullinger and I think the commissioner, we tried to work out some plan by which as many cases as could be prosecuted under the state law should go to the state courts, and had a general understanding that first offenses, in the absence of any particular reasons, should be handled in state courts. That would release the commissioner of the court and the federal court to handle more aggravated cases and second offenses. That was the basis of our whole conference.

'The Court: As I understand you, your understanding with them was in the way of co-operation-- was to try to stimulate the local authorities into a greater responsibility in the prosecution of cases in their jurisdiction, and not leave the entire matter to the consideration of government officers? A. That was the idea back of the conference, so far as I was concerned.'

Redirect examination:

'Q. Isn't that one of the reasons you went to the police department, in order that you might from them procure support and evidence which they had obtained in searches and seizures without putting your department to the trouble of procuring search warrants? A. No; that question wasn't acute at that time.

'Q. Later on did it become acute? A. We never discussed that matter at all. The matter of how the police should procure evidence was a matter I thought entirely out of my jurisdiction.

'Q. Isn't that the one idea that actuated you in inviting the police department to co-operate with your department? A. No; I can't say it was; of course, we wanted to get results, but that wasn't the purpose of our conference.'

Pearl Horn, called as a witness on behalf of the defendants, testified that he was the sergeant in charge of the so-called raiding squads of the Kansas City police department during the month of August, 1921. To this Chief Edwards also testified. Horn was in charge during July and August. His duties, among others, included dealing with violations of the Volstead Act. 41 Stat. 305.

'Q. State whether or not you had any conference with any of the federal officers here with respect to what should be done in the way of procuring testimony to be used in the prosecution of violators of the Volstead Act. A. Well, that was merely a sort of school. I guess you would call it that. None of us was familiar with getting evidence, and they just merely had a little school one evening to instruct us along those lines.

'Q. Where was that? A. That was in one of the rooms here in the third floor (of the Federal Building).

'Q. Do you remember who was present? A. Mr. Coon, I believe.

'Q. The assistant United States district attorney? A. Yes, sir.

'Q. What occurred there? Who else was present besides you and Assistant District Attorney Coon? A. Mr. Wilson-- Commissioner Wilson-- and Chief Edwards and Officer Cole, Officer Chandler, and Officer Snow.

'Q. Now, what occurred there? A. They just instructed us how to secure the evidence so it would be a case when brought up here, so it wouldn't have to take up the time-- the best way to secure evidence.

'Q. What did he say-- what is your recollection of what was said there? A. Well, I don't just recollect other than that it was testimony in general under the Volstead Act.

'Q. As to what evidence would be sufficient to convict? A. Yes.

'Q. And what to do when you made a raid about turning anything that was seized over to the federal government? A. Yes.

'Q. And what information the federal authorities would require in order to obtain a conviction? A. Yes, sir.

'Q. When was this conference you just spoke of, this school? A. I don't remember the exact date, either in July or June.

'Q. The latter part of June or the first of July? A. Yes.

'Q. During the month of July give the court your best recollection of how many c...

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  • Marron v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 5, 1925
    ...of the federal officers with the wrongful search and seizure as brings the case within the operation of the Fourth Amendment. U. S. v. Falloco (D. C.) 277 F. 75; Legman v. U. S. (C. C. A.) 295 F. 474; In re Schuetze (D. C.) 299 F. The record shows that the District Court in admitting the ev......
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    • U.S. Supreme Court
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    ...rule of Weeks. See Flagg v. United States, 2 Cir., 233 F. 481, 483; United States v. Slusser, D.C., 270 F. 818, 820; United States v. Falloco, D.C., 277 F. 75, 82; Legman v. United States, 3 Cir., 295 F. 474, 476—478; Marron v. United States, 9 Cir., 8 F.2d 251, 259; United States v. Brown,......
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    • May 4, 1925
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  • Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality
    • United States
    • Iowa Law Review No. 99-1, November 2013
    • November 1, 2013
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