Crank v. United States

Decision Date17 November 1932
Docket NumberNo. 9462.,9462.
Citation61 F.2d 981
CourtU.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.

GARDNER, Circuit Judge.

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.

"I had been working in that territory in conjunction with the State officers, making raids during that time just prior to that date. * * *

"Mr. Weaver and myself were prohibition enforcement officers and Mr. Tom Fisher and Mr. Brackman were deputy sheriffs. * * * We had information that a large quantity of whisky was stored there and that he was selling whisky from that place. * * * Mr. Tom Fisher the deputy sheriff and myself had had quite a lot of information and had talked together about having the information."

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: "Q. And helped take out what you found in there? A. Yes, sir, from what we could see and smell and the information we had."

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:

"I have had stated to me there was violation of the liquor laws at this place and I had information and I had this information when I went with the County officer down there. I have had instructions as to what it takes to obtain a search warrant of the United States law about a search warrant.

"Q. Then why didn't you obtain a search warrant? A. Well, after we got there and seen what we did and smelled the odor of whisky from that house and remaining there the time we did and talked to the brother of the defendant, we thought we had sufficient evidence under our instructions to search that house.

"Q. And you made that seizure of whisky on what you saw and the odor on the ground? A. Yes, sir."

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: "I do not think that is material because it is admitted that it was not made on a search warrant. The warrant never was served at all."

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:

"Q. How did Mr. Quillen and Mr. Weaver, who are prohibition enforcement officers — are they not? A. Yes, sir.

"Q. How did they become connected with it? A. They had been cooperating with us in different still raids in the county and they happened to be here that morning. I really don't know about that particular part."

The witness further testified:

"I had been working in conjunction with the prohibition enforcement officers ever since I had been in office. I do not recall whether I had discussed this particular defendant or not. I would think perhaps we did. * * *

"I believe Mr. Fisher broke the window and we all went in and made the search. Prohibition enforcement officers Weaver and Quillen assisted us in making the search. We had all been conducting raids for the past thirty days and since I took office on the 31st day of July and the prohibition enforcement officers were working right along in hand with me and informations were being filed by them on the cases we got in Federal Court." (Italics supplied.)

Deputy Sheriff Fisher, produced as a witness on behalf of the government, among other things testified: "I invited them (prohibition officers Quillen and Weaver) to go with me and we went down to Shirley Crank's home about three o'clock. * * * We never served the search warrant on Shirley Crank until he came in and gave up and we arrested him about the 17th of September."

Referring to the prohibition enforcement officers, the witness further testified: "We had been working in conjunction with the Government officers and they had been working with us. I don't think I had discussed this case with the prohibition department and if I did I don't remember. I can't call to memory. I know we talked about going to a still that morning and wanting to search this place. I got the search warrant to search the place and if I mentioned it to them I have forgotten."

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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