477 F.2d 393 (5th Cir. 1973), 72-3789, United States v. Summerville

Docket Nº:72-3789 [*]
Citation:477 F.2d 393
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joe SUMMERVILLE, Defendant-Appellant.
Case Date:April 17, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 393

477 F.2d 393 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joe SUMMERVILLE, Defendant-Appellant.

No. 72-3789 [*]

United States Court of Appeals, Fifth Circuit.

April 17, 1973

Page 394

William P. Johnson, Carrollton, Ga., for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

PER CURIAM:

Joe Summerville, his wife Evelyn Lue Summerville, and their daughter, Betty Lue, were convicted by a jury of possessing and transporting 105 gallons of nontaxpaid whiskey in violation of 26 U.S. C.A. § 5604(a)(1). Joe Summerville appeals his sentence of two years in the custody of the Attorney General on two grounds: (i) that the whiskey was discovered through an illegal search and the evidence produced by it should have been suppressed and (ii) that his sentence was unduly influenced by the introduction of his prior record, some of the items thereon being erroneously reported as convictions when they were not. Finding both contentions without merit, we affirm.

Search

The record indicates that the government agents had received a tip regarding Mr. Summerville. They were told that "there was supposed to be some liquor either brought to the Summerville residence or there was someone going to leave the residence and go and pick some up." 1

On the strength of this tip from a "reliable informant" the agents conducted a stakeout of the Summerville residence (which is also apparently the location of the appellant's business) beginning at 11:00 p. m. of the night of July 2, 1972. At about 4:15 a. m. on July 3, 1972, from their vantage point across the road from the house, the agents observed a light come on and some movement on the premises. A few

Page 395

minutes later they saw three persons enter a 1963 white Ford automobile and drive off. They followed this vehicle for a while, using a "leapfrog" technique where two vehicles alternate following the suspect car in order to avoid detection by those under surveillance. At one point, the officers lost sight of the Summerville car. One agent testified that when the vehicle had originally left the family house, it was riding with its trunk higher in the air than was normal for that make of car. After losing sight of the car, the agents later found the vehicle again about 40 minutes later. This time, the vehicle was riding low "as if it were weighted down." The agents pulled the car over and approached it. One agent who approached the car testified that he could smell the aroma of "moonshine whiskey" emanating from the car. After all three occupants were out of the car, an agent shined his flashlight into the back seat and rear floorboard of the car. He saw a number of clear plastic, one-gallon jugs...

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