Alvau v. United States

• Citation: 33 F.2d 467
• Decision Date: 15 July 1929
• Docket Number: No. 5746.,5746.
• Parties: ALVAU et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

33 F.2d 467 (1929)

ALVAU et al. v. UNITED STATES.

No. 5746.

Circuit Court of Appeals, Ninth Circuit.

June 24, 1929.

Rehearing Denied July 15, 1929.

Edward H. Chavelle, of Seattle, Wash., for appellants.

Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

Suspecting that intoxicating liquor was being manufactured by the appellant Alvau, three prohibition agents, without a search warrant, went to his residence, in the country some distance from Tacoma, about 3 o'clock at night. Four hundred or five hundred yards from the house they detected the odor of fermenting mash, which grew stronger as they approached, and when they came near the house they also smelled hot or burning kerosene. In the darkness they investigated the outside premises — barn and yard — but found nothing of a suspicious character other than what they call a sump or surface cesspool, apparently a shallow excavation filled with gravel, which at the time was warm, and from which arose the odor of fermenting or fermented mash. The house was undoubtedly the appellant's residence, occupied at the very time by himself and his family, consisting of his wife and two children, and in it also was the appellant Rossi, the purpose of whose presence, whether criminal or legitimate, became one of the issues of fact at the trial. No lights were visible, but upon investigation the agents learned that there were three outside doors, one in front, one at the back, and one leading to the basement, all being locked.

Getting no response to their demands for admission, accompanied by the announcement that they were prohibition agents, one of them broke open the basement door and, entering, unlocked the other doors to let in his associates. Appellant was taken into custody and a prolonged search was made of the interior of the house, including the basement, without discovering any incriminating evidence. They then communicated with their superior in Tacoma, who, in response to their suggestion, came out later in the morning, and after some further search they discovered in one of the walls of the basement a heavy door or block about two feet in diameter, finished and fitted in, in such manner as closely to resemble the wall itself. Opening this, they were able to get through into two underground rooms, having no outside entrance, where they found appellant Rossi, a complete still which manifestly had been recently in operation, vats containing a large quantity of liquid sugar mash and about 40 gallons of whisky.

Acting upon the information thus obtained, a grand jury later returned an indictment charging the two appellants, in three counts, with violations of sections 3266, 3281, and 3282 of the Revised Statutes of the United States (26 USCA §§ 291, 306, 307), which define offenses, of the grade of felonies, relating particularly to the manufacture of distilled spirits and the operation of distilleries. Seasonably appellant Alvau made an application, supported by affidavits, for the suppression of the evidence thus obtained, upon the ground that the search was in violation of his constitutional rights. This the court declined to rule upon preliminarily, but put defendants to trial, with the understanding that he would pass upon the question after he had heard all the evidence. Objections by both defendants to the reception of the evidence and motions to strike it out were overruled, and ultimately the court held it admissible. There was a verdict of guilty, with judgment accordingly, and from this judgment both defendants appeal.

The principal question presented is of the legality of the search, for, if illegal, and for that reason the evidence so obtained be stricken, admittedly there would remain no substantial support for the verdict. It will at once be noted that the case bears a close resemblance to Cola v. United States (C. C. A.) 22 F.(2d) 742. In point of fact the only substantial difference is that there the invasion was made in the daytime, during the absence of the occupants of the house, and here it was in the darkness of the night, while appellant and his wife and children were at home. In point of law, the only distinction urged by the government is that there the prosecution was predicated on the National Prohibition Act, while here the charges are of infractions of the general revenue laws. The reasoning is that the prohibition agents, being invested with the powers of internal revenue agents (Maryland v. Soper, 270 U. S. 9, 46 S. Ct. 185, 70 L. Ed. 449), were authorized by the general revenue laws, and particularly section 3276, R. S. U. S. (26 USCA § 299), to make the entry and search without a warrant.

This section provides that it shall be lawful for revenue officers, as well by night as by day, "to enter into any distillery or building or place used for the business of distilling, or used in connection therewith for storage or other purposes, and to examine, gauge, measure, and take an account of every still or other vessel or utensil of any kind," and indeed to measure and take account of all material and appliances to be found therein. And it is further provided that, "whenever any officer, having demanded admittance into a distillery or distillery premises, and having declared his name and office, is not admitted," it shall be lawful for him, as well by night as by day, to make a forcible entry.

Read literally, the section might be taken as a blanket warrant to the officers at any time to search premises of every kind; but, so read, it would clearly fall under the ban of the Fourth Amendment to the Constitution. In...