358 F.2d 604 (8th Cir. 1966), 18000, Mulligan v. United States

Docket Nº:18000.
Citation:358 F.2d 604
Party Name:Edward W. MULLIGAN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 19, 1966
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 604

358 F.2d 604 (8th Cir. 1966)

Edward W. MULLIGAN, Appellant,


UNITED STATES of America, Appellee.

No. 18000.

United States Court of Appeals, Eighth Circuit.

April 19, 1966

Page 605

John L. Boeger, St. Louis, Mo., made argument for appellant and filed brief with Morris A. Shenker and Bernard J. Mellman, St. Louis, Mo.

Stephen H. Gilmore, Asst. U.S. Atty., St. Louis, Mo., made argument for appellee and filed brief with Richard D. FitzGibbon, Jr., U.S. Atty., St. Louis, Mo.

Before VOGEL, Chief Judge, BLACKMUN, Circuit Judge, and STEPHENSON, District Judge.

STEPHENSON, District Judge.

Appellant was convicted upon a finding of guilty by a jury of the charge that during the taxable year, July 1, 1964, through June 30, 1965, he willfully and knowingly engaged in the business of accepting wagers as a bookmaker, while willfully and knowingly failing to pay the tax imposed by 26 U.S.C. § 4411 and in violation of 26 U.S.C. § 7203. 1 He seeks reversal of his conviction upon the grounds that certain material seized in violation of the Fourth Amendment was erroneously admitted in evidence during his trial and for the further reason that the evidence failed to establish that he was engaged in the business of accepting wagers, an essential requisite to liability for payment of the occupational tax imposed by the statute.

Page 606

In reviewing the trial record the facts established at the hearing on appellant's motion to suppress evidence will be included to the extent they are germane to the issues now raised concerning the alleged error in admitting material seized at the time of appellant's arrest

Special Agent Richard Carr of the Intelligence Division of the Internal Revenue Service was assigned to the St. Louis Office. In September 1964, during an investigation of gambling activity in that area, he met Barry Jackson Moore and commenced placing bets with him. Moore did not learn of Carr's identity as a Special Agent until October 30, 1964, when Carr arrested him. After the arrest Carr arranged for Moore to place a twenty dollar bet for him with appellant at the restaurant where appellant was employed. Under the arrangements made, Carr was present when Moore placed the bet and gave a pre-arranged signal indicating to Carr that appellant had accepted the money and the bet tab accompanying it. Thereupon Agent Carr arose from where he was seated and followed appellant into a back room where he immediately identified himself, placed appellant under arrest and seized the bet tab (plaintiff's exhibit 1) and the twenty dollar bill which appellant then had in his hands. Carr telephoned for additional agents who arrived within twenty minutes and completed a search of the premises. In the room where appellant was arrested the agents seized four pieces of paper held together by a paper clip from under a piece of linoleum on top of a shelf (plaintiff's exhibit 3) and a folded bet tab on the shelf to the right of the telephone (plaintiff's exhibit 2). 2

Appellant filed a motion to suppress evidence prior to trial. After a hearing the motion was denied. Appellant renewed his objection to the three exhibits (1, 2 and 3) when they were offered in evidence during the trial.

Appellant urges that the search and seizure was invalid because if probable cause existed for the arrest of appellant, such probable cause existed in ample time to obtain a warrant; and therefore the search without a warrant and the reception of the fruits thereof into evidence contravened the Fourth Amendment to the Constitution. We must first examine the circumstances surrounding the arrest.

The validity of a search without warrant incident to an arrest is dependent initially on a lawful arrest. Draper v. United States, 358 U.S. 307, 310-314, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In the matter at hand the evidence compels a finding...

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