Burkis v. United States
| Citation | 60 F.2d 452 |
| Decision Date | 01 August 1932 |
| Docket Number | No. 4796.,4796. |
| Parties | BURKIS et al. v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Frederic M. P. Pearse, of Newark, N. J., for appellants.
Phillip Forman, U. S. Atty., and John W. Griggs, Asst. U. S. Atty., both of Trenton, N. J.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This is an appeal from a judgment of conviction. On the night of October 18, 1920, Lieutenant Keaton, a member of the New Jersey State Police, was patrolling the state highway, known as the Brunswick Pike, leading from New York to Philadelphia. When in the vicinity of West Windsor township, in Mercer county, N. J., he came upon a truck going toward Trenton and Philadelphia. The truck was loaded and there was an electric light inside of it and the officer at first thought that there was a fire in the truck. After following it for some time, he passed it, and being in civilian clothes, he ordered two state troopers, whom he met, to stop the truck. They did so and asked Burkis, the driver, for his driver's license and the registration cards for the truck. He did not have them. Lieutenant Keaton walked to the rear of the truck, opened the door, and found that it was loaded with intoxicating liquor, 291 cases.
The truck, containing the liquor, and the defendants were then taken to the Penns Neck State Police Headquarters. The defendants could have been delivered by the state police to either the state or federal authorities for prosecution, but they turned them over to the prohibition department. They were indicted, tried without a jury, and convicted. They appealed to this court and contend that the judgment should be reversed for two reasons:
1. The search and seizure violated the Fourth Amendment to the Constitution of the United States in that:
(1) They were made for the sole purpose of aiding the federal prosecution, and this being so,
(2) The search was not based upon probable cause and was unreasonable.
2. The evidence was not sufficient to support a verdict against Starr.
The District Judge found that the search and seizure were not made solely in aid of a federal prosecution. The possession and transportation of intoxicating liquor is a violation of the National Prohibition Act and also the Hobart Act of the State of New Jersey, which provides that: Vol. 1, p. 1626, Cum. Supp. Compiled Statutes of New Jersey, 1911-24, § 100 — 296.
That the defendants committed a crime against the state of New Jersey as well as against the federal government distinguishes this case from the case of Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381, upon which the defendants principally rely. When Gambino was arrested, the Mullin-Gage Act, the Prohibition Act of New York, had been repealed and in addition the Governor of New York had directed the State Police to aid in enforcing the National Prohibition Act with as much vigor as they would enforce any state law. The New York State Police had formerly been used as enforcement agents of the liquor law and had been stationed at the Canadian border to prevent the importation of intoxicating liquor. Consequently when the New York State Police arrested Gambino, it could not have been to enforce any state liquor law, for there was none, and the only reasonable and logical conclusion to be drawn from the evidence is that the State Police were...
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