Chapman v. United States, 17811.
| Citation | 272 F.2d 70 |
| Decision Date | 01 December 1959 |
| Docket Number | No. 17811.,17811. |
| Parties | Elmer Samuel CHAPMAN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
J. Sewell Elliott, Macon, Ga., for appellant.
John C. Bracy and Floyd M. Buford, Asst. U. S. Attys., Frank O. Evans, U. S. Atty., Macon, Ga., for appellee.
Before RIVES, Chief Judge, and TUTTLE and JONES, Circuit Judges.
This appeal from a conviction on a four count illegal liquor indictment presents principally the question whether the trial court erred in not suppressing evidence and testimony of the prosecuting witnesses resulting from a search without a warrant.
The search, which appellant contends was illegally conducted, was made by local state officers in Bibb County, Georgia. The circumstances under which the search was made are somewhat different from the usual case of this kind. One Bridgeman was the owner of the house in question. Georgia State Revenue Officer Chance received a call from Bridgeman who told the officer that he owned this house and that he thought it had been rented and he had gone by to invite the people to church on this Sunday afternoon; that upon approaching the property he smelled mash which he identified as coming from within the house. Whereupon he told Chance that if he would come out to the premises he would show him a still. Chance called other officers; they joined Bridgeman and went with him to the premises. There they found all the shades of the house drawn and the doors locked. The officers also testified to the strong smell of mash emanating from the house. At Bridgeman's request they entered the house through an open window and found it unoccupied except for the presence of a complete illegal distillery. There was also a partially run quantity of mash. There was no evidence of occupancy as a residence, although several cans of sardines and boxes of soda crackers were found in the vicinity of the distilling apparatus. The officers then called the local office of the Federal Alcohol Tax Unit and asked them to come to the scene to assist in dealing with the matter.
While the State officers were waiting, the appellant accompanied by an unidentified person, drove up and entered the front door. He was there arrested and placed in his automobile where he remained until the Federal officials arrived on the scene. He was identified as the person who had leased the house from Bridgeman through a real estate agent. His keys, which he turned over to the State officers after being arrested, included a key to the front door of the leased premises.
Upon the arrival of the Federal officers they went into the house and destroyed the still and contents, after keeping such material evidence as they deemed necessary for a subsequent prosecution.
Appellant contends that the Federal officers, at the time they first entered the premises, did so without a warrant, which of course is not disputed, and that they thus participated in the illegal search, the fruits of which were made the basis of the subsequent prosecution. The Government, on the other hand, contends that the State officers had completed the search at least to the extent that when the Federal officers arrived they then had probable cause for a Federal arrest of Chapman, and a search of the premises, by reason of what the State officers then presented to them. Appellee says that the State's search itself was not illegal, but if it was, the search by the Federal officers was not infected with this illegality. Shurman v. United States, 5 Cir., 219 F.2d 282, certiorari denied, 349 U.S. 921, 75 S.Ct. 661, 99 L.Ed. 1253. See Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819.
The trial court, without distinguishing between the actions of the State and Federal officers, held that under the peculiar circumstances here present, this was not an illegal search.1
The circumstances which the court...
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