490 F.2d 1097 (4th Cir. 1974), 73-1803, United States v. Bradshaw

Docket Nº:73-1803.
Citation:490 F.2d 1097
Party Name:UNITED STATES of America, Appellee, v. William Garland BRADSHAW, Appellant.
Case Date:January 09, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1097

490 F.2d 1097 (4th Cir. 1974)

UNITED STATES of America, Appellee,

v.

William Garland BRADSHAW, Appellant.

No. 73-1803.

United States Court of Appeals, Fourth Circuit.

January 9, 1974

Argued Oct. 1, 1973.

Page 1098

Larry W. Pitts, Newton, N.C. (Stanley J. Corne, Corne, Warlick & Pitts, Newton, N.C., on brief), for appellant.

Michael S. Scofield, Asst. U.S. Atty. (Keith S. Snyder, U.S. Atty., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and WIDENER, Circuit judges.

WINTER, Circuit Judge:

Defendant appeals from his conviction upon a jury verdict that he possessed non-tax-paid whiskey in violation of 26 U.S.C. §§ 5205(a), 5604(a). The only question raised by this appeal is the admissibility, at defendant's trial, of certain jugs of moonshine whiskey, together with testimony concerning their discovery, found in a truck parked on defendant's property near his residence by Agent Williams of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department. On the basis of Agent Williams' testimony concerning events leading up to this warrantless discovery and seizure, the trial

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judge overruled defendant's objection to admissibility based on the fourth amendment. The government contends that the circumstances of Agent Williams' discovery and seizure fell within either or both of two recognized exceptions to the prohibition against warrantless searches-- 'seizure of evidence within plain view' or 'automobile search.' We disagree, and we reverse the judgment and grant a new trial, if the government be advised.

I.

On November 16, 1972, at approximately 1:30 p.m., Agent Williams and a state enforcement officer were taken to the vicinity of defendant's residence by a second state enforcement officer who then drove off. Agent Williams and his companion nevertheless remained in radio contact with the other officer in the vehicle. Defendant had a reputation, known to Agent Williams, of being a moonshiner, and the purpose of the visit was to search the fields adjacent to defendant's property for a still. The only access to defendant's residence was an old road about a quarter mile in length that came to an end in his front yard. During their search of the adjacent fields, the officers observed three vehicles parked near defendant's residence, including the one from which the liquor was later seized. A fourth vehicle was seen by the side of the access road, beyond the limits of defendant's property and apparently abandoned.

Upon approaching the fourth vehicle, the officers detected the aroma of moonshine whiskey emanating therefrom. When their search for a still proved futile, the officers decided to leave in order to prepare for a stake-out of the abandoned vehicle. Agent Williams summoned the officer in the vehicle by radio to pick them up at a certain spot. As they were walking to the pickup point, the defendant drove by them in his pickup truck proceeding in the direction of his house. The officers made an unsuccessful effort to conceal themselves. Agent Williams, who had known defendant for fifteen or sixteen years, was certain that defendant had recognized him. Defendant parked his vehicle near his residence and left, but the officers were unable to determine whether he entered the house or took to the nearby fields.

As a result of this encounter, the officers decided they could not leave the scene without a substantial risk that defendant, alerted to their presence, might remove any contraband or evidence that might be contained in the abandoned car. After the third officer arrived in his car, they decided to go up to defendant's house, summon him to the door and ask him what connection, if any, he had with the abandoned car as a preliminary to searching it. Agent Williams and the others then drove to defendant's residence.

Agent Williams' attempts to summon defendant to the front door were interrupted by the arrival of two men in a truck carrying bran-- a usual ingredient in the manufacture of moonshine whiskey. After a short discussion with the officers, the two men drove off and Agent Williams resumed knocking at the front door, calling defendant by name.

Failing to obtain a response, Agent Williams decided to try the back door. En route to the rear of the house, he passed a 1952 Ford truck parked near the building. It was approximately a ton and a half in size with sideboards and swinging doors in the rear which were closed. This meant that whatever may have been resting on the bed of the truck could not have been detected by the casual glance of a passer-by. When Williams got near this truck, he noticed that it exuded a strong odor of moonshine whiskey. Agent Williams' ability to identify the odor of moonshine whiskey is not in dispute.

Agent Williams then 'stopped at the rear of the truck' and 'looked through a kind of crack in the back swinging doors'-- this crack was a space between the edges of the doors which did not fit

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together snugly when closed. Through this crack Agent Williams observed a large quantity of one gallon plastic jugs containing a white liquid. He then entered the truck, ascertained that the jugs contained moonshine liquor and seized them. He, of course, did not have a warrant for the search or the seizure.

II.

It is commonplace learning that warrantless searches and seizures are unreasonable within the meaning of the fourth amendment unless they fit within certain carefully defined classes of cases. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). And so we turn to the 'plain view' exception to the prohibition against warrantless searches urged on us by the government.

The most recent exposition by the Supreme Court of the 'plain view' exception can be found in the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There, two prerequisites to the availability of the exception were prescribed.

First, the officer's presence at the vantage point from which he discovers the evidence in plain view must not amount to an unjustifiable intrusion into an area with respect to which defendant's expectations of privacy are protected by the fourth amendment. That is, the officer must not have entered defendant's zone of privacy, or, if he has, such entry must have been justified by 'a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused.' 403 U.S. at 466, 91 S.Ct. at 2038. Secondly, the discovery of the evidence in plain view must have been inadvertent.

The...

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