Potter v. United States

• Decision Date: 23 June 1966
• Docket Number: No. 22793.,22793.
• Parties: Robert Lafayette POTTER, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

362 F.2d 493 (1966)

Robert Lafayette POTTER, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 22793.

United States Court of Appeals Fifth Circuit.

June 23, 1966.

S. Gunter Toney, Tallahassee, Fla., for appellant.

Clinton Ashmore, U. S. Atty., Jack Carrouth, Asst. U. S. Atty., Tallahassee, Fla., C. W. Eggart, Jr., Asst. U. S. Atty., Pensacola, Fla., for appellee.

Before WISDOM and COLEMAN, Circuit Judges, and HUGHES, District Judge.

COLEMAN, Circuit Judge:

Appellant was convicted of possession and removal of non-taxpaid distilled spirits in violation of 26 U.S.C., Sections 5205(a) (2), 5604(a) (1), and 5601(a) (12). The conviction stands on the discovery of a quantity of moonshine whiskey by Florida beverage agents as the result of a search, without a search warrant, of an automobile in which appellant was riding. There is no contention that the vehicle was not in appellant's possession and control. A motion to suppress the fruits of the search on the ground that the search was unreasonable was denied and the appellant was thereupon convicted. The appeal presents two questions: (1) Whether there was probable cause for the search and (2) whether it was reversible error to deny revelation of the identity of the informant or informants. For the reasons hereinafter developed, we reverse the conviction with directions that the indictment be dismissed.

I

Whether there was probable cause for any particular search without a warrant is always a judicial question, to be determined after a full development of the relevant, material, competent facts, United States v. Robinson, 2 Cir., 1963, 325 F.2d 391. Each case must be decided on its own facts, Bruner v. United States, 5 Cir., 1961, 293 F.2d 621.

W. A. Dykes, Florida State Beverage Agent, testified that about 5 o'clock one morning he received information from "a confidential source" that appellant would transport a quantity of non-taxpaid whiskey into Chipley, Florida. The proof, on the motion to suppress, proceeded as follows:

"Q. Had you used that confidential informer prior to that time?

A. Yes, sir, I had.

Q. Was he reliable?

A. Yes, sir, he had previously been in the past.

Q. Did you recognize the party\'s voice on the telephone?

A. Not that I could positively say.

Q. Did the party give you his name?

A. I don\'t recall whether the party used the name or not.

Q. But did you know who he was?

A. I have got an idea who he probably was.

Q. But he didn\'t give you his name and you didn\'t recognize his voice, is that your testimony?

A. I didn\'t say I didn\'t know, I said I didn\'t know for sure. I can make a guess.

Q. Let\'s see what your recollection is — what does your recollection tell you now, did the party give you a name?

A. I don\'t remember his giving a name.

Q. So far as you were concerned this was a stranger giving you this information?

A. No, he said he wanted to keep it confidential because Robert might find out who it was.

Q. So far as you were concerned he was a stranger, you didn\'t know who this party was?

A. Well, he was talking on the phone and didn\'t give me a name, so I could not say for sure who it was.

Q. You didn\'t recognize the voice and you don\'t know whether or not this party\'s information was going to be reliable or not, did you?

A. Someone with a voice similar to this man, the man that called, they had given me information on occasions once or twice before this.

Q. But you are not certain that this was the same one?

A. No, no, I could not be positive it was the same man, no, sir, not just by voice."

The anonymous caller, according to the testimony of Agent Dykes, advised that the liquor car would be a 1957 Mercury, bearing tag number 51W536. The agent went to a point on Highway 77 South of U. S. 90 at Chipley and waited for appellant to come along. According to Mr. Dykes, when the car passed the observation point about 8:30 a. m. it was visibly violating no law. He stated that the only reason for his putting the car under surveillance was the telephone call.

While at the observation point, Officer Dykes said that a second confidential informer came up and advised that he had seen appellant loading empty jugs into the vehicle, which the second informer described. The officer did not say whether he knew this second informer. Nobody at any time vouched for the reliability of this second informer.

When counsel for the appellant asked for the names of the first and second informers, the government objected, and the objections were sustained.

The defense called Mr. Frank Brooks, another Florida Agent, who testified after refreshing his memory from notes. He said that he and Dykes went to the surveillance point before midnight. This was a material variance from the testimony of Dykes. Brooks saw the second informer, a colored man, talk to Dykes, but did not hear the conversation. He was asked to identify the informer, but the government's objection was sustained. He thereafter stated, however, that he did not know the informer, but the court then stated "* * * the objection is sustained", although the record fails to reflect that any objection had been made.

Vernon E. Anderson, another Florida Agent, testified that Dykes picked him up at 3 o'clock a. m. to go on the stake out.

This sums up the proof as to when, what, how, and from whom any information was received.

We now proceed to Officer Dykes' version of what happened when he started after the automobile in question, as follows:

"When the car came by and passed our position we waited until the car got approximately a hundred yards up the road and we pulled out on the highway behind it. The car approached the intersection of Vernon Highway and Hospital Road, I believe is the name of the street, at which time I pulled right up behind this car and was able to get the tag number off of the car, observed two colored males in the car. I didn\'t recognize the driver. The colored male that was sitting on the right side I could just see the top of his head. I pulled up closer to this car and as I pulled up alongside of the car the colored male sitting on the right raised up and I was able to recognize him as Robert Potter. He motioned with his hand and head to the driver and at the same instant the car accelerated to a high rate of speed at which time I turned on the red light and the siren and gave chase."

"Q. Did you notice anything unusual about the car prior to that time?

"A. As I pulled in behind the car and turned south, southeast on Hospital Drive, I observed the car seemed to be loaded. The springs when he hit a bump gave excessively.

"We chased the car over numerous streets on the south side of Chipley with speeds close to a hundred miles an hour and after about five or six blocks I finally managed to head the car into a curve and make him stop or either hit the state vehicle."

Agent Brooks gave the following testimony as to the loaded condition of the car:

"Q. Did the car appear to be heavily loaded or lightly loaded?

A. It appeared to be slightly loaded.

Q. More than average?

A. Yes, sir, more than average."

As to the basis for the chase, Mr. Dykes, who was not then in uniform and wore no badge, testified as follows:

"Q. Did you observe any crime being committed in your presence in this case?

A. Did I observe any crime?

Q. Yes, that your senses could detect?

A. When I pulled in behind the car and he began to run (emphasis ours) I figured something was wrong.

Q. You figured something was wrong?

A. Yes, sir. When he raised up out of his seat and motioned, or seemed to motion to the driver to accelerate, I ran alongside of the car and I had a good look at him.

Q. At the time the car passed you, the vicinity of your car, how fast was the car going?

A. Approximately forty, forty-five, maybe fifty miles an hour.

Q. Was it speeding?

A. No, sir.

Q. Did the car violate any traffic law?

A. Not until after I pulled up behind him, no.

Q. At the time he passed you he was was not violating any law that you knew of?

A. Not any traffic law, no, sir."

II

The court, without making any specific finding of fact, denied the motion to suppress, in the following general language:

"Gentlemen I don\'t think there is any matter to belabor about this thing. The Court holds that the Motion to Suppress be denied. The evidence here is quite clear that there was not once but twice there were elements of confidential information and upon the information bearing fruit in the person and in the vehicle considered to be the suspect, that immediately the description of the automobile, its manner of having been loaded and its acceleration to a high rate of speed in an attempt to avoid, to make chase you might say, clearly indicates that it was probable cause within the realm of the available law on the subject and there was no violation of any right to effect the arrest and effect a search. So, the Court holds the validity of the matter. So we will call in the jury."

A jury was then waived and the court found the defendant guilty on the proof already adduced, plus additional testimony as to the untaxpaid character of the whiskey.

III

We emphasize at the outset that this was not a case in which the searching officer had a search warrant or an arrest warrant; neither was it a case in which the officer simply observed the subject committing an offense for which he arrested him and thereafter conducted a search incident to that arrest. The government makes no effort to sustain this search on the ground that the officer had authority to apprehend and arrest speeders and thereafter search their vehicles. Nor is it contended that this search was valid as effected pursuant to such authority. The conviction must stand or fall on probable cause, and the effort to overhaul the vehicle had already begun before the speeding occurred.

In determining this matter, as is frequently the case, we are confronted with the serious responsibility of deciding the issue in keeping with two laudable objectives:...