Day v. United States

• Citation: 37 F.2d 80
• Decision Date: 16 December 1929
• Docket Number: No. 8616.,8616.
• Parties: DAY v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

37 F.2d 80 (1929)

DAY v. UNITED STATES.

No. 8616.

Circuit Court of Appeals, Eighth Circuit.

December 16, 1929.

Harry B. Fleharty, of Omaha, Neb., for appellant.

Edson Smith, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., Ambrose C. Epperson and George A. Keyser, Asst. U. S. Attys., all of Omaha Neb., and Philip M. Aitken, Asst. U. S. Atty., of Lincoln, Neb., on the brief), for the United States.

Before KENYON and BOOTH, Circuit Judges, and REEVES, District Judge.

KENYON, Circuit Judge.

Appellant was found guilty on each of eight counts of an indictment based on alleged violations of sections 3266, 3281, and 3282, Revised Statutes of the United States (26 USCA §§ 291, 306, 307).

The first three counts charge the unlawful making of mash and the fermenting of mash fit for production of spirits, and the unlawful using of a still for the purpose of distilling at 1609½ North Twenty-Fourth street, Omaha, Neb. The remaining counts charge similar violations of law at 1611½ North Twenty-Fourth street. The facts are not in dispute. Some federal prohibition agents in Omaha, having some knowledge and much suspicion that stills were being operated in the second story of a building at North Twenty-Fourth street, which second story was divided into four apartments numbered 1607½, 1609½, 1611½, and 1613½, secreted themselves about 9:30 o'clock one night at a place near the rear of the building where they could watch the rear entrance; there being a rear stairway leading up to the second floor. Others of the force were secreted near the gate to the Zusman feed and coal yard, a place not far from the suspected building, where they knew sugar was sold. Observing a Ford car entering the Zusman yard and going out again shortly, they followed it as it proceeded down the road a short distance to the rear of the building under suspicion of harboring operating stills. It went into the yard. The prohibition agents saw appellant loading a sack of sugar onto his back from the Ford truck. They found some empty bottles or jugs in the truck but no liquors. It is claimed by the government, and seems to be conceded by appellant, that the officers then arrested him, although there is little competent evidence to show just when an arrest was made, if at all. He was then taken up the stairs and into one of the apartments, where there was a still in operation, where he was searched and certain papers consisting of receipts for payment of rents of the apartments where the stills were being operated, for telephone, yeast, gas, sugar, etc., were taken from his person against his protest. These were subsequently admitted in evidence against him. The officers had no search warrant or warrant for appellant's arrest. The officers searched the different apartments and found in two of them stills, 56 barrels of mash, and some gallon jugs of moonshine whisky. In the other two apartments nothing was found. Appellant was sentenced to six months' imprisonment in jail on each of the counts, the same to run concurrently, and was fined $1,000.

There is one grave constitutional question presented, and the case stands or falls upon its determination, i. e., could the incriminating papers taken from appellant's person lawfully be used against him on the trial? They show that he was connected with the operation of this distillery, and if the prohibition officers had been able to restrain themselves until appellant had gone up the stairs with the sugar to where the stills were being operated, and arrested him while he was engaged in such operation, and then taken the papers from him, the courts would probably not have been troubled with this case. The theory of the government is that as the prohibition officers, approaching the building in following appellant's car, smelled a strong odor of mash coming from the building and one of them heard the roar of the gas burner under a still, they had probable cause to believe that a still was being unlawfully operated in the second story of the building and that appellant being in the yard loading a sack of sugar on his back was connected therewith, and therefore they had the right to arrest him for a felony being committed in their presence, and the search of his person was merely incidental to a lawful arrest.

It is, of course, well settled that a police officer may arrest without a warrant one believed by the officer upon reasonable cause to have been guilty of a felony or to be engaged in the commission of a felony. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790.

In Gerk v. United States, 33 F.(2d) 485, 486, this court adopts the rule stated in 5 C. J. 398, 399, as to when arrest can be made for a felony which is as follows: "It is not only the right, but the duty, of a peace officer to arrest, without warrant, one whom he finds attempting to commit, or one who is committing, or has committed, a felony in his presence, or within his view," and he "may arrest, without a warrant, one whom he has reasonable or probable grounds to suspect of having committed a felony."

Probable or reasonable cause is a belief fairly arising out of facts and circumstances known to the officer that a party is engaged in the commission of a crime. Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. If a person is legally arrested, he may be searched, and whatever is found on the person as the fruit or evidence of crime and tending to prove the offense may be seized and used as evidence against him. Sayers v. United States (C. C. A.) 2 F.(2d) 146; Billingsley et al. v. United States (C. C. A.) 16 F.(2d) 754; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409.

This case therefore simmers down to a single question, viz., was there a lawful arrest of appellant?

This court has many times held that where an officer of the law has direct personal knowledge from one or more of his five senses of sight, hearing, smell, touch, or taste that the suspected person is committing a crime in his presence, he may lawfully arrest him. See Garske v. United States (C. C. A.) 1 F.(2d) 620; Peru v. United States (C. C. A.) 4 F. (2d) 881; Brock v. United States (C. C. A.) 12 F.(2d) 370; Gerk v. United States (C. C. A.) 33 F.(2d) 485.

Granting that the prohibition officers were justified in believing from the smell of fermenting mash emanating from this building, and other circumstances, that a felony was being committed in the building, does it follow that they had sufficient probable cause to assume that a man in the yard with 400-pound sacks of sugar in a truck at 9:30 at night, one of which he was attempting to load on his back, and with a few empty jugs in the truck, was participating in the felony? Mere suspicion is not sufficient, nor does it satisfy constitutional requirements that the evidence secured by the search of the person shows the party to be in fact guilty. Garske v. United States (C. C. A.) 1 F.(2d) 620. The Fourth and Fifth Amendments are intended to apply to the guilty as well as the innocent. It is well at times to advert to such...