Cannon v. United States

• Decision Date: 17 March 1947
• Docket Number: No. 11675.,11675.
• Citation: 158 F.2d 952
• Parties: CANNON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

158 F.2d 952 (1946)

CANNON et al. v. UNITED STATES.

No. 11675.

Circuit Court of Appeals, Fifth Circuit.

December 27, 1946.

Rehearing Denied January 22, 1947.

Writ of Certiorari Denied March 17, 1947.

Edwin H. Grace, of New Orleans, La., and William H. Scott, of Houston, Tex., for appellants.

Brian S. Odem, U. S. Atty., and W. F. Leigh and Joseph W. Cash, Asst. U. S. Attys., all of Houston, Tex., and Charles C. Bowie, Asst. U. S. Atty., of Brownsville, Tex., for appellee.

Before HUTCHESON, McCORD, and LEE, Circuit Judges.

Writ of Certiorari Denied March 17, 1947. See 67 S.Ct. 980.

HUTCHESON, Circuit Judge.

Four defendants were charged in four counts with unlawful transactions in respect of marihuana. Count one charged a conspiracy to import marihuana, count two its unlawful importation, count three its unlawful receipt and concealment after importation, and count four its unlawful acquisition within the United States.

Defendant Cannon's motion to suppress the evidence as to the search by customs officers of an automobile, in which they suspected marihuana was being carried and its seizure by them, and the motions of all the defendants, to require the Government to elect between counts one and four, were denied, and there was a verdict convicting Cannon and Smith as to counts one and four, and acquitting them as to counts two and three, and the other two defendants as to all counts.

Cannon and Smith are here urging as error (1) the denial of the motion to suppress, (2) the denial of the motion to require an election, and (3) the denial of their motion for an instructed verdict.

As to the motion to elect, appellants insist that there was a fatal inconsistency between count one, charging conspiracy to obtain marihuana in Mexico and import it, and count four, charging the unlawful acquisition within the United States of the same marihuana. No authority is cited in support of the view thus advanced that the government was required to elect between the two counts. We know of none. We think it quite plain that the denial of this motion was not error.

The motion to direct a verdict was based as to both appellants on the illegality of the search and seizure of the marihuana found in Cannon's car. As to Smith, it was based on the claim that since the marihuana was found in the Studebaker then being driven by Cannon and not in the Mercury then being driven by Smith, there was no evidence to connect Smith with it. Neither Smith nor Cannon took the stand to testify or explain away the web of circumstances in which they were enmeshed. It may not be denied, that, unexplained,¹ these circumstances connect Smith and Cannon so closely as to lead unerringly to the conviction that Smith and Cannon were engaged in a common enterprise, indeed, if the evidence obtained by the search and seizure was admissible, it convicts Smith as surely as it does Cannon. It shows, in short, that they were partners in the crime.

We turn then to the crux of the case, whether the search and seizure was, within the fourth amendment to the Constitution, an unreasonable one, or was reasonable, that is, based upon probable cause. Appellants attack it from two angles. The first is that it was based entirely upon hearsay information unsupported by any evidence of conduct from which the officers could draw a reasonable conclusion that a felony had been or was being committed. The second is that the refusal of the court to permit them to cross-examine the officers as to the name of their informant or informants was a denial of due process.

We think it plain that neither of these positions is well taken. As to the first, the authorities have settled it; that the guaranty of "the right of the people to be secure * * * against unreasonable searches and seizures * * *" does not forbid all searches and seizures, but only those that are unlawful because not based upon probable cause or upon a warrant where a warrant is required; and that in a search of automobiles a warrant is rarely, if ever, required.² Each case must depend upon its own facts, and in each case it must be determined whether the information in the hands of the searching officer was sufficient to justify a reasonable person in believing that he had probable cause to search. Customs cases make this quite clear.³

We agree with the government that in addition to the information furnished, there were, as in Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L. Ed. 151, circumstances which made the search reasonable. We are also in no doubt that the testimony of the officers,...