Clifton v. United States, 6993

• Decision Date: 19 July 1955
• Docket Number: No. 6993,6994.,6993
• Citation: 224 F.2d 329
• Parties: Robert Francis CLIFTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

224 F.2d 329 (1955)

Robert Francis CLIFTON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6993, 6994.

United States Court of Appeals Fourth Circuit.

Argued June 22, 1955.

Decided July 19, 1955.

Clyde A. Eltzroth, Hampton, S. C. (Henry Hammer, Columbia, S. C., on brief), for appellant.

N. Welch Morrisette, Jr., U. S. Atty., Columbia, S. C., and Frank H. Cormany, Sr., Asst. U. S. Atty., Aiken, S. C., for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Robert Francis Clifton (hereinafter called Clifton) was found guilty on all counts of two indictments charging criminal violations of the Internal Revenue laws pertaining to liquor, after a jury trial in the United States District Court for the Eastern District of South Carolina. Clifton has appealed to us, contending that evidence admitted over objection of his counsel was obtained by an unreasonable search and seizure and that hearsay testimony was admitted in evidence against him. Neither of these contentions warrants reversal of the decision of the District Court.

The facts are relatively simple. On October 17, 1953, two investigators of the United States Alcohol and Tobacco Tax Division, together with an informer, drove to the rear yard of Clifton's house in Hampton County, South Carolina. The informer went to the house and told the person answering his knock that he wished to buy a jar of whiskey. The informer was told to see Earl Padgett, who lived down the road. The investigators and the informer brought Padgett to Clifton's back yard. Padgett entered the back door and came out with a half-gallon of untaxed whiskey. The investigators paid Padgett for the whiskey, identified themselves and arrested him.

One of the investigators then went to the back door of Clifton's house and knocked. Mrs. Clifton answered and made no objection when the investigator entered the room from which the whiskey had come. Among other things, 250 pounds of sugar and 35 gallons of illicit whiskey were found in the room. The whiskey was destroyed and the sugar was seized.

The investigators had neither a warrant for the arrest of Padgett nor a search warrant for the house. Clifton's motion to suppress evidence obtained by this search was denied by the trial court. The record shows that investigators had also purchased untaxed whiskey from Padgett on October 9, 1953, in the back yard of Clifton's home. The two indictments were for the separate violations of October 9 and October 17, 1953.

In United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the Supreme Court indicated that whether a search and seizure without a warrant is reasonable within the meaning of the Fourth Amendment depends upon the facts of each particular case and is not a question easily answered by recourse to mechanical tests. It has long been recognized that some degree of search and seizure without warrant is permissible if made after a lawful arrest. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Of course, as we pointed out in Henderson v. United States, 4 Cir., 12 F.2d 528, 51 A.L.R. 420, the arrest must be more than a mere sham and not merely an excuse for the search. The arrest of Padgett, although without warrant, was lawful, since he had committed a felony in the presence of the investigators. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Janney v. United States, 4 Cir., 206 F.2d 601. Although counsel for Clifton contends otherwise, ...