Brady v. United States

• Decision Date: 05 July 1924
• Docket Number: 3990.
• Parties: BRADY et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

300 F. 540

BRADY et al. v. UNITED STATES. ^[1]

No. 3990.

United States Court of Appeals, Sixth Circuit.

July 5, 1924

Thomas D. Slattery, of Cincinnati, Ohio (Maurice L. Galvin Cincinnati, Ohio, and Wm. A. Burkamp, of Newport, Ky., on the brief), for plaintiffs in error.

Sawyer A. Smith, U.S. Atty., of Covington, Ky. (John E. Shepard and Rodney G. Bryson, Asst. U.S. Attys., both of Covington, Ky on the brief), for the United States.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

MACK Circuit Judge.

In two of four counts defendants were charged with conspiracy, and in the other two with the substantive crimes, first of transporting, and second of possessing unlawfully intoxicating liquors. Motions to quash the indictment were overruled, and petitions for the suppression of evidence alleged to have been obtained through unlawful arrests and seizures, and for the return of the property seized, were denied. On the trial the evidence alleged to have been so obtained was admitted over objection and exception. Defendants were convicted and sentenced on all counts.

It is well settled in the federal courts that papers and property obtained from a defendant in violation of his constitutional rights under the Fourth Amendment cannot be used in evidence against him, if application for their return is seasonably made. Amos v. U.S., 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654.

It is unnecessary in the instant case to consider whether or not in the absence of a prior arrest, the search and seizure here made were unreasonable (see Hilsinger v. U.S., 2 F. (2d) 241, decided by this court June 10, 1924; Milam v. U.S. (C.C.A.) 296 F. 629; Jones v. U.S. (C.C.A.) 296 F. 632), for here the seizure followed the arrest, and the right to search and seize for the purpose of discovering the fruits, instruments or evidence of crime is incident to a lawful arrest (Weeks v. U.S., 232 U.S. 383, 392, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Agnello v. U.S., 290 F. 671, 684 (C.C.A. 2); Donegan v. U.S., 287 F. 641, 649 (C.C.A. 2); Baron v. U.S. (C.C.A.) 286 F. 822, 824; Browne v. U.S. (C.C.A.) 290 F. 870, 875).

Was, then, the arrest of these defendants lawful? Let us examine the circumstances thereof as portrayed in the record. On October 12, 1922, a man who had been working with the prohibition agents, and who lived near the Burk Springs distillery, informed the district general prohibition agent that this distillery was to be robbed; that he was on the inside and was supposed to see that the road was clear. On the 14th this agent was further told that a load had been taken out of the distillery on the preceding night, and that the men would be back again in a day or two for another load; that the whisky would be taken through Perryville, on the way to Cincinnati or some point north, and that a Marmon car and a Reo speed wagon would be used. Arrangements were thereupon made that the informer should telegraph on learning just when the next load would be taken out. On the 17th the agent received a telegram, advising him in effect that a load was to be taken out that night. With four federal prohibition agents as his assistants, and a chauffeur, he went to a point on the public highway near Perryville, known as the 'Steel Bridge,' arriving there in the night about 11:30. This bridge was along the best route to Cincinnati from the distillery, about 25 miles away. After about 45 minutes the officers blocked the bridge with the machine and stopped the traffic; in the meantime a Marmon car, which was suspected of being involved in the crime, was allowed to pass, going toward the distillery, as the prohibition agents believed that it would return shortly with the liquor. Indeed, in order to throw the occupants of the Marmon off the scent, the officers drove their car a distance down the highway and later returned to the bridge. After the blockade, and before defendants' car came along, several others were stopped. The driver of one of them said he was a preacher; he was allowed to proceed without search. One, who said he was a physician, was both stopped and searched, but no liquor was found; he was then allowed to proceed. Thereupon a Ford and a Buick passed; in each moonshine was found. Then a Studebaker was allowed to go on, no liquor apparently being found in it. Early in the morning a Packard drove up. It did not attempt to go onto the bridge, but, when its occupants saw the flashlight of the prohibition agents, a shot was fired from the machine, the gas put on, and the car run up a little road that ended in a field, where the car was abandoned; the occupants got away. The officers, searching the abandoned car, found 21 ten-gallon cases of red whisky.

Believing that the rest of the whisky which they had been advised would be stolen that night would soon come along, they put two cars on the bridge and also blocked off the road that the Packard had taken. About a half hour later the prohibition agents observed approaching the bridge a Reo speed wagon, a covered truck, followed closely by a Marmon car, which the officers took to be the car they had seen earlier in the night. They appeared to be ...