Crank v. United States
Decision Date | 17 November 1932 |
Docket Number | No. 9462.,9462. |
Citation | 61 F.2d 981 |
Parties | CRANK v. UNITED STATES. |
Court | U.S. Court of Appeals — Eighth Circuit |
Ned Stewart, of Lewisville, Ark., and W. S. Atkins, of Hope, Ark., for appellant.
W. N. Ivie, U. S. Atty., of Fort Smith, Ark. (G. T. Sullins, Asst. U. S. Atty., of Fort Smith, Ark., on the brief), for the United States.
Before KENYON, GARDNER, and SANBORN, Circuit Judges.
Appellant, Shirley Crank, was convicted on four counts of an indictment charging violation of the National Prohibition Act (27 USCA). From the judgment entered thereon, he has appealed, assigning as error the denial of his motion to suppress the controlling evidence on which he was convicted, claiming that such evidence had been obtained by an unlawful search and seizure.
It is the contention of the appellant that the intoxicating liquors which were found in his home were seized by officers of the United States in conjunction with the sheriff of Miller county, Ark., and certain of his deputies, without a search warrant issued by any court of competent jurisdiction, and that the seizure was violative of the Fourth Amendment to the Constitution.
It is the contention of the government that the liquor was seized by the sheriff and his deputies without the assistance or co-operation of the officers of the United States, and that such seizure was made in executing a search warrant issued by the judge of the municipal court at Texarkana, Ark., or, if not so made, it was in any event lawful and warranted because made pursuant to probable cause.
It is conceded that the search warrant regularly issued under the laws of Arkansas, and that it was sufficient to justify a search and seizure by the state officers, if acting solely under the laws of Arkansas. The writ was based on an affidavit of a deputy sheriff, which alleged that he had reason to believe, and in truth did believe, that Shirley Crank kept in his possession intoxicating liquors for storage or for purpose of sale, or both, and that such liquors were kept or stored by said Shirley Crank at his residence or store, located near Garland City, Miller county, Ark. The warrant issued on this affidavit directed any sheriff, constable, or policeman in the state to search the place mentioned in the affidavit, where such intoxicating liquors were believed to be concealed, and to bring such liquors which might be found, and the said Shirley Crank, before the municipal court. This warrant was in the hands of the deputy sheriff, T. M. Fisher, who, together with Deputy Sheriff Brackman and Prohibition Officers Quillen and Weaver, proceeded to the vicinity of appellant's home on the 26th of August, 1931, where they were later joined by the sheriff, when they forcibly entered appellant's residence and made the search and seizure challenged by appellant's motion to suppress.
On the motion to suppress, Jess M. Quillen, called on behalf of the defendant, testified that he was a prohibition enforcement officer, employed by the United States, and that he was so employed on the 25th and 26th days of August, 1931; that, in company with Mr. Weaver and some other officers, he searched the home of the defendant Shirley Crank; that he, with the other named officers, went to defendant's home, but found no one there; that a small building standing out from the house was stacked full of sacks of sugar, new kegs, charred kegs, and fruit jars, and in another small building back of his garage were cases of fruit jars and kegs, and "you could smell the odor of whisky coming from his house very strong. The house stood up off the ground some two feet, bricked up all around, with ventilator holes. There was brick set up on the inside of the basement under these holes. There was little sour gnats working in and out of those holes. We could smell the odor of whisky very strong. We stayed there all night until twelve o'clock the next day. In the meantime I came to Texarkana and got something to eat and got the sheriff, and he went back with me and stayed until twelve o'clock the next day, and we broke into the house and made a search.
The witness then testified that he did not have a search warrant, that he did not break into the home himself, but that he helped to make the search. He was then asked:
Mr. W. N. Weaver, the other prohibition enforcement officer, testified that he went with Deputy Sheriff Fisher and Prohibition Officer Quillen; that he had been working in connection with the county officers, and had discussed from time to time the question of Shirley Crank possessing whisky down there. He also testified as follows:
In response to an offer by counsel for defendant to submit a copy of the affidavit upon which the search warrant issued, counsel for the government stated:
Rufe Turquette, the sheriff of Miller county, Ark., testified that during the month of August, 1931, in company with Prohibition Enforcement Officers Quillen and Weaver, and his Deputies Fisher and Brackman, "we searched the home of Mr. Shirley Crank." Speaking of entering the house, the sheriff testified: "Prohibition enforcement officers Weaver and Quillen were working with me and they went in with me and helped search the house."
He also testified: "When I got down there we broke a window glass and opened the window and went in."
The witness was interrogated with reference to the prohibition officers as follows:
The witness further testified:
Deputy Sheriff Fisher, produced as a witness on behalf of the government, among other things testified:
Referring to the prohibition enforcement officers, the witness further testified:
If this seizure was one for which the prohibition enforcement officers were responsible, it is clear that the search warrant was no justification for the search and seizure. Even though sufficient under the Arkansas statutes, it was clearly bad under the Fourth Amendment and the laws of the United States because the affidavit upon which it issued was verified merely on information and belief. Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374; Rice v. Ames, 180 U. S. 371, 21 S. Ct. 406, 45 L. Ed. 577; United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; United States v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516; Rose v. United States (C. C. A.) 45 F.(2d) 459; Simmons v. United States (C. C. A.) 18 F. (2d) 85; Ripper v. United States (C. C. A.) 178 F. 24; United States v. Borkowski (D. C.) 268 F. 408; United States v. Kelly (D. C.) 277 F. 485. It could, therefore, not justify a federal search and seizure.
It is, however, urged that the search and seizure were conducted by the state officers and participated in by the federal enforcement officers "merely...
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