Emite v. United States

• Decision Date: 18 November 1926
• Docket Number: No. 4784.,4784.
• Parties: EMITE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

15 F.2d 623 (1926)

EMITE et al. v. UNITED STATES.

No. 4784.

Circuit Court of Appeals for Fifth Circuit.

November 18, 1926.

Thos. F. Whiteside, Jr., of Dallas, Tex. (John R. Palmer, of Galveston, Tex., on the brief), for plaintiffs in error.

H. M. Holden, U. S. Atty., of Houston, Tex.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

The plaintiffs in error were convicted on two counts of an information charging them with unlawfully possessing and unlawfully transporting intoxicating liquor fit and intended for beverage purposes. Over their objection the court permitted a federal prohibition enforcement officer to testify as to the witness and another federal prohibition enforcement officer arresting the accused and finding 51 gallons of intoxicating liquor in an automobile in which they were traveling on a public highway after dark. The witness testified to the following effect:

"When we the witness and the other officer were traveling in an automobile, the accused passed us in another car, which was owned by one of the accused, who worked for the Dickinson ice plant at Dickinson, Tex. We noticed that they were traveling slowly, that their car appeared to be heavily loaded and weighed down on the springs, and they went over the rough spots in the highway very carefully. We followed them about 10 miles, then drove our car in front of theirs, told them to stop, and that we were federal officers, and we searched them and their car, and found the liquor in their car. We had no search warrant. The accused did not give us permission to search their car. I did not see or smell liquor until I opened the door of their car. The reason I suspected they had liquor was because I had seen that car parked out by the side of the Dickinson ice plant, and I had been told that cars that were parked out by there hauled liquor from that ice plant. When I saw that car parked at the ice plant, it was about 30 feet from the highway and inside the ice plant property. I never raided or searched the Dickinson ice plant. I have made many arrests around Dickinson, Tex. It is a small town, and has the reputation of being a haven for still operators and bootleggers."

The testimony of the witness, not only did not show that, before the search was made, the officers had probable cause to believe that an offense had been committed, but indicated the absence of such probable cause. Probable cause did not exist, unless the facts and circumstances within...