Clay v. United States, No. 15996.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON, , and BORAH and BROWN, Circuit
• Citation: 239 F.2d 196
• Decision Date: 11 December 1956
• Docket Number: No. 15996.
• Parties: Will Parks CLAY, Appellant, v. UNITED STATES of America, Appellee.

239 F.2d 196 (1956)

Will Parks CLAY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 15996.

United States Court of Appeals Fifth Circuit.

December 11, 1956.

239 F.2d 197

Paul M. Conaway, Thomas A. Jacobs, T. Reese Watkins, Macon, Ga., for appellant.

Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., Frank O. Evans, U. S. Atty., Robert B. Thompson, Asst. U. S. Atty., Macon, Ga., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and BROWN, Circuit Judges.

John R. BROWN, Circuit Judge.

The question is not whether conviction of a person whose prior criminal record, reputation and papers in his possession at the time of seizure, support the view that he may be a gambler engaged in the numbers racket, outweighs the risk to freedom if the search and seizure of these papers is sustained. If the search and seizure was unreasonable, then, according to constitutional standards, the fundamental law established to protect the good and the bad, the wicked and the righteous, from the historical hazards to genuine liberty, compels corrective judicial action if properly invoked.

Clay is no stranger¹ to us, or to the law, or to excesses in the process of

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search and seizure in law enforcement. Concerning the papers seized January 28, 1954, he sought, by motion, to suppress their use in future prosecution which, save for a Complaint filed before the Commissioner, Fed.Rules Crim.Proc., rule 3, 18 U.S.C.A., has not been instituted by Information or Indictment, Fed. R.Crim.P. 7

Whether the supposed crime was of misdemeanor or felony grade, cf. Mosely v. United States, 5 Cir., 207 F.2d 908, certiorari denied 347 U.S. 933, 74 S.Ct. 626, 98 L.Ed. 1084; Contreras v. United States, 5 Cir., 213 F.2d 96; Clay v. United States, 5 Cir., 218 F.2d 483; Reynolds v. United States, 5 Cir., 225 F.2d 123, certiorari denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801, it was one involving merely the failure to pay an occupation and excise tax² as a gambler and the possible carrying on of that business before registering and paying the stamp tax. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754; Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475. The significant thing is that the taking, placing or handling of wagers or conducting a lottery is not a Federal crime unless registration and payment of taxes is not made. Transportation,³ as such, is not

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a crime. All of this is important since the mere act of a known gambler driving an automobile on a public highway will not justify an officer forcing him to stop to be searched or arrested for a suspected violation of the Federal Wagering Tax Act

And yet that is all that occurred on January 28. Revenue Agents in two passenger cars, one privately owned, one Government owned but with no identification of its official status discernible to passing or overtaken vehicles, took up a concealed vigil on the Macon-Columbus highway about a mile east of Hester's store-residence in anticipation that, following his frequent pattern, Clay would go there for a brief stay about 2:00 o'clock in the afternoon. Clay passed this point in his Buick, driving in a normal manner at moderate speed. The two cars fell in behind him, but on attempting to overtake and stop him, Clay, saying that he was apprehensive of highway robbery, shot up his speed to 60 to 70 m. p. h., allowed his car to slip partially over in the left-hand lane across the center stripe to force the Agents' cars back, but almost immediately returned to his own lane. The Government car came abreast of Clay and the Agent pounding on the right-hand front door of the Government car (with a pistol, Clay said; by bare hand according to the Agent) ordered Clay to pull over. As Clay commenced to obey this peremptory command, the Government car cut in front of him so that, fore and aft, he was hemmed in by Revenue Agents. When the vehicles stopped, an Agent ordered Clay out of his car and then, with the first show of gentle concern, asked if they could search the car, to which Clay offered no objection. Within about two minutes, the search was made but revealed nothing. While Clay was standing near the front fender, the Agent-in-Charge, "asked him if he would permit us to search his person." Clay, without answering, reached in his pocket, took out some money, laid it on the fender of the automobile, and, about that time, while he was fumbling with his shirt pocket which contained a package of cigarettes, a small Manila-backed booklet in the shirt pocket was moved

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sufficiently for the Agent-in-Charge to see that it contained a row of three-digit numbers in pencil. Reacting as though he had found a strike, the Agent then announced that Clay was under arrest,⁴ demanded possession of the booklet, and after admitting that he had no search warrant, forceable took it from Clay's hand. The further search of Clay's person uncovered five adding machine tapes⁵ (called lottery ribbons) in the upper lapel pocket of his coat. One Agent reached in a pocket and brought out a roll of bills totaling $1,438.00. Later that day, he was taken before the Commissioner on a verified Complaint⁶ of one of the Agents

This analysis then brings the case to the point where the Government, for misdemeanor or felony, not only may but must find support for the seizure in the pre-January 28 activities. For there was nothing about his conduct on the highway that day, at that time, to indicate that he was then in the act of committing either misdemeanor or felony. He might have been going to, or coming from, a place where he had or would accept a wager. He might have been going to a place to pay over, or receive, money to or from the banker or pickup man in a lower or higher echelon of this vicious hierarchy. But at the moment he was not taking or receiving, collecting or paying wagers. And if the act of driving from one place to the other was to "be engaged in or carry on the trade or business * * *," 26 U.S.C.A. § 3271; Lewis v. United States, supra, this was not evident or discernible from what could then be seen or known. Moring v. United States, 5 Cir., 40 F.2d 267; Emite v. United States, 5 Cir., 15 F.2d 623.

Nothing discernible to the senses taught reasonably that crime was then being done until the Agent saw, and demanded, the lottery booklet. But this was too late, for the strong arm of the law had peremptorily stopped this traveler and placed him under evident, immediate command of Government officers. Clay was not only permitted to submit to this demonstrated show of force, but maintenance of law and order, avoidance of outright physical challenge of the authority of a policeman, a decent respect for the settlement of such controversies by orderly judicial processes, all justified Clay's acquiescence in their commands and requests, United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210, 220; United States v. Rembert, D.C.S.D.Tex., 284 F. 996. A citizen was forceably run down and driven off the highway. If officers have the

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right to interfere with that essential pursuit of a nation of automobilists, it must be based on what is known or reasonably believed before the commandeering starts. To allow justification to rest on discovery after intrusion would permit "the Government * * * to justify the arrest by the search and at the same time to justify the search by the arrest," Johnson v. United States, 333 U.S. 10, 16, 68 S.Ct. 367, 370, 92 L.Ed. 436, 442. United States v. Frisch, 5 Cir., 140 F.2d 660, 662

So, whether, as claimed by the Agents, the little booklet came to light as Clay was apparently complying with a mere request to disgorge his personal effects or, as claimed by him, it was done by peremptory command, if it was unlawful to stop him, the "conclusion is inescapable that the same unwarranted and unlawful force and compulsion, which attended and vitiated the stopping of the automobile * * *, attended and vitiated * * *," Ray v. United States, 5 Cir., 84 F.2d 654, 656, the production of the lottery booklet, the arrest and seizure of the other papers; Ward v. United States, 5 Cir., 96 F.2d 189.

Was the knowledge of prior events⁷ sufficient to make an apparently innocuous use of a free highway, Emite v. United States, supra, a telltale of a past or current crime? The inquiry eliminates the question of misdemeanor since, for the misdemeanor to have been committed in the presence of the officer, it is necessary that "the officer has evidence by his senses sufficient to induce a belief

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in him * * *," United States v. Rembert, supra 284 F. 1006; McBride v. United States, 5 Cir., 284 F. 416, certiorari denied 261 U.S. 614, 43 S.Ct. 359, 67 L.Ed. 827, and what they could see or sense was the movement of a car on a highway.

Examining it from the standpoint of a felony, there are two points: (1) did the officers actually believe that a felony had been committed, and (2) was there a reasonable probable ground for that conclusion?

The first is of extreme importance for if an officer does not in fact at the moment entertain a genuine good faith belief of this fact (or legal conclusion), then the action taken is itself unlawful because lacking in the indispensable ingredient which excused the issuance of a warrant by a magistrate. Johnson v. United States, supra; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. All that protects the citizen from unwarranted intrusion is the expectation that an officer, zealous and energetic as he may be, will nonetheless feel restrained by law and act only where his belief is genuine and in good faith. If he may act without it, liberty is exposed to the peril of a police state in which high-handed acts of the policemen consciously undertaken in indifference to law, may yet turn out to be justified by the leisurely post-event inquiry and investigation made, not by the officer, but by Government lawyers...