United States v. Trupiano, 4308c.

Citation70 F. Supp. 764
Decision Date04 March 1947
Docket NumberNo. 4308c.,4308c.
PartiesUNITED STATES v. TRUPIANO et al.
CourtU.S. District Court — District of New Jersey

Edgar H. Rossbach, U. S. Atty., of Newark, N. J., by John A. Waldron, Asst. U. S. Atty., of Trenton, N. J. (Samuel Cohen, of counsel), of Newark, N. J., for the United States.

Anthony A. Calandra, of Newark, N. J., for petitioners.

FORMAN, District Judge.

The government filed a complaint against the defendants, petitioners herein, charging violation of the Internal Revenue Laws. The petitioners moved to suppress certain evidence held by the government against them, claiming that since it was obtained without a search warrant their constitutional rights were invaded. For the purpose of the motion, affidavits were submitted by the government, and the petitioners offered the record of the preliminary examination before the United States Commissioner.

In January 1946 the petitioners leased part of the Copeland Kell Farm, located in Allenwood Township, New Jersey, and they agreed to construct a roadway, a barn, dig a well, and pay a monthly rental. The lessor, Kell, was suspicious and reported these facts to the government. Kell permitted the defendants to proceed with their plans, and, in fact, the government planted an agent on the premises. A still was constructed which began to operate about three weeks prior to the night of a raid by government agents on June 3, 1946. Production was at the rate of 400 to 500 gallons a day. As a result of information produced by the government's secret agent, a truck containing 91 five gallon cans of alcohol was seized May 31, 1946. On information from the same source that the principals were present at the still, the government made a raid upon the premises on the night of June 3, 1946.

On approaching the farm the government agents detected a very strong odor of fermenting mash, heard a motor running, and saw a still through the unclosed barn door. Fire in the boiler was banked, and the still was not in operation at the time. Government agents arrested petitioners on the premises and found several hundred cans of alcohol. The petitioners alleged that the still, alcohol, mash and other equipment were unlawfully seized without a search warrant. The barn was about 200 yards from the house in which Kell lived.

Petitioners argue that the conduct on the part of the government not only amounts to entrapment which is not complained of on their motion, but that the same facts show that the government had information at hand sufficiently early for it to have procured a search warrant. The rule relied upon by petitioners was set forth in the case of Taylor v. United States, 1932, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951. In that case Taylor was charged with unlawful possession of whiskey. A motion to suppress was made on the ground that evidence was seized from the garage adjacent to petitioners residence without a warrant. There was an odor emanating from the garage, but no one was within the place. While the search progressed Taylor came from his house and was put under arrest. The court stated:

"Although over a considerable period numerous complaints concerning the use of these premises had been received, the agents had made no effort to obtain a warrant for making a search. They had abundant opportunity so to do and to proceed in an orderly way even after the odor had emphasized their suspicions; there was no probability of material change in the situation during the time necessary to secure such warrant. Moreover, a short period of watching would have prevented any such possibility.

* * * * * *

"Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guaranties * * * against unreasonable search. This record does not make it necessary for us to discuss the rule in respect of searches in connection with an arrest. No offender was in the garage; the action of the agents had no immediate connection with an arrest....

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3 cases
  • Trupiano v. United States
    • United States
    • United States Supreme Court
    • 14 Junio 1948
    ...be returned. The District Court denied th motion after a hearing, holding that the seizure was reasonable and hence constitutional. 70 F.Supp. 764. The Circuit Court of Appeals for the Third Circuit affirmed per curiam the order of the District Court. 163 F.id 828. District Court. 163 F.2d ......
  • United States v. Roett
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 Enero 1949
    ...88 now § 371 of former Title 18, United States Code Annotated. 2 See United States v. Trupiano, 3 Cir., 163 F.2d 828 and Id., D.C., 70 F.Supp. 764. See the decision of the Supreme Court reversing both lower courts, 334 U.S. 699, 68 S.Ct. 3 Emphasis added. ...
  • United States v. Trupiano, 9394.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 7 Octubre 1947
    ...and MARIS, Circuit Judges. Writ of Certiorari Granted December 15, 1947. See 68 S.Ct. 263. PER CURIAM. The order of the court below, 70 F.Supp. 764, will be ...

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