Peeples v. United States

• Decision Date: 26 April 1965
• Docket Number: No. 20749.,20749.
• Citation: 341 F.2d 60
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Allen Glynn PEEPLES, Appellant v. UNITED STATES of America, Appellee.

341 F.2d 60 (1965)

Allen Glynn PEEPLES, Appellant v. UNITED STATES of America, Appellee.

No. 20749.

United States Court of Appeals Fifth Circuit.

January 28, 1965.

Certiorari Denied April 26, 1965.

Murray L. Williams, Water Valley, Miss., for appellant.

H. M. Ray, U. S. Atty., Thomas G. Lilly, Asst. U. S. Atty., Oxford, Miss., for appellee.

Before HUTCHESON and BROWN, Circuit Judges, and CHRISTENBERRY, District Judge.

Certiorari Denied April 26, 1965. See 85 S.Ct. 1362.

CHRISTENBERRY, District Judge:

Appellant prosecutes this appeal from his conviction on an indictment charging him and others with carrying on the business of retail liquor dealer and wilfully failing to pay the special tax as required by law, in violation of 26 U.S. C.A. § 5691(a).¹ In brief, appellant complains that the court below erred in 1) overruling appellant's motion to suppress certain evidence allegedly obtained as a result of an unlawful search, 2) in refusing to order a mistrial as a result of an allegedly prejudicial remark made by the Assistant United States Attorney during his closing argument, and 3) in refusing to give certain jury instructions requested by appellant. Additionally, appellant argues that as a matter of law the evidence adduced at the trial was insufficient to sustain a verdict of guilty.

The only evidence presented at the trial of the case was the testimony of three Government agents, one of whom merely testified that on the date alleged in the indictment appellant had not paid the special tax required for retail liquor dealers. The Government's case rests on the testimony of Agent Mashburn and Investigator Lott of the Alcohol and Tobacco Tax Unit of the Internal Revenue Service. They testified that on the afternoon of November 17, 1962, they drove in a pick-up truck to the home of appellant, located about eighteen miles from Oxford, Mississippi, where, according to various complaints they had received, appellant was operating a retail liquor business. Upon arriving near the house, Lott alighted from the truck and took a position where he could observe the activities around the house. While so situated, within a period of twenty minutes he observed three different vehicles drive into the driveway of the house. On each occasion one or two men or young boys got out of the vehicle and walked to the side door of the house which was located beneath a carport. On one occasion Investigator Lott observed a man walk to the side door and ask a woman, later identified as Janie Wilson, appellant's co-defendant, for two cartons of Schlitz beer. The woman handed the man a package and he asked how much it was; whereupon she replied, "You know how much it is, three dollars." The man then left. In addition, Investigator Lott saw several other persons in the vicinity drinking beer. Agent Mashburn then picked up Investigator Lott in the truck, and the two agents drove to the house, stopped and walked under the carport to the side door of the house. Janie Wilson came to the door, and Agent Mashburn asked her for six cans of Schlitz beer, at which time she turned around, opened a refrigerator, and took out six cans of Schlitz beer, placed them in a paper sack and handed the package to Agent Mashburn out the door. Agent Mashburn testified:

"* * * I asked her the price and she said `$3.00.\' At that time I showed her my credentials and identified myself and asked her if she had a retail beer stamp, and she said, `Yes, sir, I guess so.\' And so then I asked her, I said . . . `Well, do you sell tax paid whiskey?\', and she said `Yes, sir, I do.\' She said, `I sell this beer and the whiskey for Mr. Peeples.\' She said, `It belongs to him,\' said `I just stay out here and sell it for him.\'

"Q. Did you ask her for the stamp?

"A. And then I asked her to see the stamp and she said, `Yes, sir,\' said `come on in\'.

"Q. Which stamp are you talking about at this time?

"A. At that time I was talking about the beer stamp and the liquor stamp. So I went in, I went in the kitchen —

"Q. Let me ask you this, I\'ll interrupt you right here, Mr. Mashburn. She told you that Mr. Peeples had a beer stamp and a liquor stamp, is that right?

"A. She told me that she understood that he had one. She said, `I understand that he\'s got it.\' So she turned and walked in a room and then came almost immediately back. And when she got back in the kitchen, well, she said, says, `Mr. Peeples must have the stamp down at the store\', and I said, `Well, I want to check your stock and then I\'ll go to the store and see him about the stamp.\'"

The agents were shown several bottles of tax paid liquor behind a trap door in the bathroom of the house and two bottles of whiskey and a quantity of beer in the refrigerator. The agents then proceeded to Mr. Peeples' general store about fifteen miles away, where appellant admitted that he had been in the business of selling beer and tax paid whiskey at his house for several months, and that he had no stamp. This, substantially, was the evidence presented to the jury by the Government.

I

At the trial appellant's counsel moved to suppress all evidence obtained by the agents after their entry under the carport of appellant's house on the ground that such property was within the constitutionally protected curtilege of Appellant's home, and that the agents' intrusion thereon without a search warrant was in violation of appellant's rights under the Fourth Amendment to the United States Constitution. Appellant places great reliance on the fact that the agents had no search warrant and upon the testimony of Agent Mashburn to the effect that at the time the investigation was begun the agents did not have sufficient probable cause to obtain a warrant.

We think that the evidence is clear that at the time Agent Mashburn and Investigator Lott entered the carport, there was reasonable cause to believe that the occupant of the house was selling beer. Previous to the entry the agents had the benefit not only of several complaints but of their own observation of the activities around the house, including an actual sale of beer. The agents thus were justified in entering the premises for the purpose of determining whether or not the seller possessed a valid tax stamp.

The law requires that all retail dealers in liquor pay a special tax of $54.00 a year, 26 U.S.C.A. § 5121(a), and all persons are prohibited from engaging in a business subject to the tax until he has paid the special tax, 26 U.S.C.A. § 5142 (a). Any person who carries on the business of a retail dealer in liquor and wilfully fails to pay the required special tax is subject to the criminal penalties imposed by 26 U.S.C.A. § 5691(a).

26 U.S.C.A. § 6806(a) provides:

"Every person engaged in any business, avocation, or employment, who is thereby made liable to a special tax, shall place and keep conspicuously in his establishment or place of business all stamps denoting payment of said special tax."

26 U.S.C.A. § 5146(b) states:

"(b) Entry of premises for inspection. — The secretary or his delegate may enter during business hours the premises (including places of storage) of any dealer for the purpose of inspecting or examining any records or other documents required to be kept by such dealer under this chapter or regulations issued pursuant thereto and any distilled spirits, wines, or beer kept or stored by such dealer on such premises."

As we view the situation here, the agents had ample evidence that a business subject to regulation was being conducted on the premises at the time they entered the carport for the purpose of determining whether or not the vendor possessed a valid tax stamp; and their entry did not offend or violate any right of privacy of appellant protected by the Fourth Amendment.

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It is needless to recite here how concerned the courts of this nation are with the recognition and protection of Fourth Amendment rights, and how consistent they are in demanding strict compliance by federal and state officials.

The proscriptions of this amendment, however, are less stringent where the search...