United States v. Summerville

• Decision Date: 17 April 1973
• Docket Number: No. 72-3789 Summary Calendar.,72-3789 Summary Calendar.
• Citation: 477 F.2d 393
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe SUMMERVILLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.2d 393 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Joe SUMMERVILLE, Defendant-Appellant.

No. 72-3789 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

April 17, 1973.

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 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 there. Subsequently, the car was searched at the agents' headquarters and some 105 gallons of illicit whiskey were uncovered—33 one-gallon jugs in the back seat and floorboards of the car, and 72 one-gallon jugs in the trunk.

Summerville's chief contention is that, based on the informant's tip, the government agents had probable cause to secure a warrant at the time of the stakeout of his home and that since they failed to obtain one then, the subsequent discovery of the whiskey in the vehicle was an unconstitutional search and should have been suppressed. We cannot agree with this.

The agents had not sufficient information upon which to justify the issuance of a warrant by a detached magistrate. All they knew was that appellant might come into possession of some moonshine sometime in the near future. There were no details indicating the method or circumstances under which the crime would occur. There were no objective facts corroborating the story, save the knowledge of one Alcohol, Tax and Firearms Division agent that "ever since I have been here in Newnan for approximately three years I have received information that Mr. Summerville was bootlegging moonshine whiskey."²

This was not sufficient evidence to put before a magistrate during the afternoon and evening hours of July 2, 1972. More was needed. Spinelli v. United States, 1968, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Whiteley v. Warden, 1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Bailey v. United States, 5 Cir., 1967, 386 F.2d 1, 3; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

Only when the tip was corroborated by some objective or tangible evidence could the agents justify a search. Aguilar v. Texas, supra. As it happened though, the point at which this independent and corroborative evidence was observed was when the defendant (and his family members) were in the very vehicle which was searched.

It is now reasonably settled that a search of a vehicle which has the capacity to convey its occupants and possible contraband contents to a place of refuge from a warranted search, may be searched without a warrant provided there is "probable cause" to suspect the commission of a crime or the possession of contraband. Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Brown, 5 Cir., 1969, 411 F.2d 478; Williams v. United States, 5 Cir., 1968, 404 F.2d 493.

Clearly this was the case here. The agents who had "tailed" the suspect car could not reasonably halt the car at any time prior to that which they did. They had observed the car "riding high" with its rear end jacked up on special supporting springs prior to the time they lost sight of the car. Later, when they regained contact with it, the car seemed to be heavily weighted down. This fact in connection with the tip now presented sufficient probable cause to halt the vehicle, to search for illicit whiskey, without a warrant. Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327; Gonzales v. Beto, 5 Cir., 1970, 425 F.2d 963; Davis v. Smith, 5 Cir., 1970, 430 F.2d 1256, 1260. See also, Clay v. United States, 5 Cir. 1956, 239 F.2d 196.

No warrant was required since the occupants of the car might reasonably be expected to move the car to a place of hiring or dispose of the suspected contraband. Carroll v. United States, supra.

The actual search...