Brock v. United States

• Decision Date: 19 April 1926
• Docket Number: 7054.,No. 7053,7053
• Citation: 12 F.2d 370
• Parties: BROCK v. UNITED STATES. SAMUEL v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

12 F.2d 370 (1926)

BROCK v. UNITED STATES.

SAMUEL v. SAME.

Nos. 7053, 7054.

Circuit Court of Appeals, Eighth Circuit.

April 19, 1926.

Milford W. Rider, of Kansas City, Mo., for plaintiffs in error.

Charles C. Madison, U. S. Atty., and H. L. Donnelly, Asst. U. S. Atty., both of Kansas City, Mo. (S. M. Carmean and C. S. Walden, Asst. U. S. Attys., both of Kansas City, Mo., on the brief), for the United States.

Before SANBORN, Circuit Judge, and MUNGER and JOHNSON, District Judges.

SANBORN, Circuit Judge.

The writs of error in this case challenge the legality of the proceedings in the court below, whereby the defendants Brock and Samuel were tried, convicted and sentenced under an information containing three counts against them jointly: (1) For possessing unlawfully at 1213 Baltimore avenue in Kansas City, Mo., on June 2, 1924, one pint of whisky for beverage purposes; (2) for unlawfully selling at the same time and place one pint of whisky for beverage purposes; and (3) for unlawfully maintaining a common nuisance on or about January 1, 1924, at the same place where whisky fit for beverage purposes was stored, kept and sold in violation of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½ et seq.). The defendants sued out separate writs of error and filed separate assignments of error. The material facts were these:

Mr. Brock owned the drug store at 1213 Baltimore avenue about 2:30 in the afternoon of June 2, 1924, and had owned it for about six months. He had a government permit to sell intoxicating liquors under the National Prohibition Act, and lawfully held in his store a stock of about 14 gallons of permit or prescription whisky. The defendant Samuel was a registered pharmacist and Brock's clerk in the drug store and had been for about six months. Kirk Johnson was Brock's night clerk in the drug store. He was not on duty at this time, but was in the store sitting at a small table in the customer's part of the store on which were small empty glasses such as are sometimes used for Coca-Cola, which the officers said smelled of whisky when they found them, and around this table with Mr. Johnson sat Mr. Hart and two ladies. Mr. Brock was not in the drug store at that time or during any other time during the afternoon of June 2, 1924.

Two prohibition enforcement officers and two anti-narcotic officers of the government gave to a young woman marked bills, instructed her to go into Mr. Brock's drug store and buy whisky, if she could, and, if she succeeded, to give an agreed sign when she came out. She went in, came out, gave the sign, and handed to the officers a pint of whisky. Thereupon these officers without a search warrant entered the store, seized and carried away this property of Mr. Brock: One pint bottle about half full of whisky, regularly prescribed and marked and stamped as required by law, which they found in his overcoat pocket back of the prescription case, about 14 gallons of bonded whisky, lawfully held in stock for sale by him for medicinal purposes, some physician's prescriptions, and his record book 1455 and 1455a of the liquors he had been permitted to sell and those he was permitted to sell for medicinal purposes.

These officers caused the defendant Samuel, who had charge of the cash register, to open it. They searched it, found therein and carried away the marked bills they had given their decoy. They also searched without a warrant Kirk Johnson, found in the pockets of the clothes he was wearing, seized and carried away, five pints of whisky that was not and had never been a part of the permit whisky of Mr. Brock. The facts which have been recited were admitted or conclusively proved. Two of the officers testified that one of them arrested Samuel and Johnson before they seized the property, and Samuel and Johnson testified that no arrests of them were made and no notice of their arrests was given to either of them until after the search and seizure was made. The evidence on this subject has been carefully read, and it has convinced that no arrests were made until after the search and seizure had been made.

Mr. Brock, Mr. Samuel and Mr. Johnson made separate motions before their trials commenced for the return of the property taken from them, respectively, by the search and seizure and for the suppression of the evidence and information secured thereby, and on the trials objected to the introduction of such evidence and information against them. Their motions were denied, and they excepted. Their objections were overruled, and they excepted.

Mr. Brock complains that this search and seizure was unreasonable, violative of the Fourth and Fifth Amendments to the Constitution of the United States, and assigns the rulings which have been recited as errors.

The Fourth Amendment declares that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated." The Fifth Amendment forbids that any person "shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."

The Supreme Court has been zealous and relentless in the enforcement of these prohibitions and in preventing their nullification or encroachments upon the rights of person and property they secured. Mr. Justice Clarke, delivering the unanimous opinion of that court in Gouled v. United States, 255 U. S. 298, 304, 41 S. Ct. 261, 263 (65 L. Ed. 647), said that the effect of its decisions was "that such rights are declared to be indispensable to the `full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or `gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers."

Counsel for the United States argue that the search and seizure in this case were reasonable and the rulings of the court below right, and they cite in support of their contention, and seem to rely chiefly upon, Lambert v. United States (C. C. A.) 282 F. 413, 417; Elrod v. Moss (C. C. A.) 278 F. 123, 130; Garske v. United States (C. C. A.) 1 F.(2d) 620; Park v. United States (C. C. A.) 294 F. 776, 784; Gouled v. United States, 255 U. S. 298, 310, 312, 41 S. Ct. 261, 65 L. Ed. 647; O'Connor v. United States (D. C.) 281 F. 396; United States v. Borkowski (D. C.) 268 F. 408. We have read the opinions in these cases, and, with one or two exceptions which we cannot follow, they do not in our opinion support the positions of counsel. Lambert v. United States, Elrod v. Moss, and Park v. United States were cases in which intoxicating liquor was seized in and taken by the officers from automobiles and their searches and seizures were sustained under section 26 of title 2 of the National Prohibition Act, 41 Stat. 305, 315 (Comp. St. Ann. Supp. 1923, § 10138½mm), to the effect that "when the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law."

In Carroll et al. v. United States, 267 U. S. 132, 149, 45 S. Ct. 280, 283 (69 L. Ed. 543, 39 A. L. R. 790), the Supreme Court...