Flynn v. United States, 4561
| Decision Date | 25 July 1931 |
| Docket Number | 4565.,No. 4561,4561 |
| Parties | FLYNN et al. v. UNITED STATES. HARTZELL v. SAME. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Abraham Teitelbaum and George R. Bieber, both of Chicago, Ill., for appellants.
George E. Q. Johnson and Walter Wiles, both of Chicago, Ill., for the United States.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
These appeals, while based on two separate transactions, present substantially the same legal questions and were argued together. We shall discuss cause No. 4561 first.
Appellants Flynn and Fair were charged by grand jury indictment in two counts. The first count alleged unlawful possession of intoxicating liquor fit for use for beverage purposes, and the second count alleged unlawful transportation of intoxicating liquor fit for beverage purposes. Both appellants pleaded not guilty and orally waived their rights to a trial by jury, and the cause was tried by the court without a jury. Both were found guilty as to each count, and each was fined $1 on count 1, and ordered confined three months in jail on count 2.
On October 22, 1930, at 8:30 a. m., two police officers of the city of Chicago, driving an automobile in one of the alleys of that city on a tour of inspection, met these appellants driving in the opposite direction in a Ford automobile. Immediately after passing, appellants turned into an intersecting alley. No one was with them. Thereupon the officers backed their automobile to the intersection and followed appellants. The Ford car was out of sight of the police not to exceed thirty or forty seconds. Upon their regaining sight of the Ford car, it had come to a stop in the alley in front of a private garage, the door of which was partially open. Flynn was standing beside the Ford with his hand on its door, and Fair was sitting in the front seat reaching backward over the seat toward the floor. The back seat cushion was missing. Flynn recognized and saluted the officers. One officer asked them what they had in the car. Fair said he did not know, and Flynn said, "You can see what it is." The officers thereupon looked into the Ford and found therein back of the front seat, four filled five-gallon cans. The officers opened the cans, smelled and tasted the contents, and found it to be alcohol, and arrested Flynn and Fair.
There was no means of exit or entry to the garage save the door opening into the alley and a window on the side next to the officers, and the window had been in the officers' unobstructed view since they entered that alley. The officers had no search warrant nor warrant of arrest, and the arrest was made without any co-operation or knowledge of any federal officer. After the arrest, the federal prohibition administrator at Chicago was informed of the facts, and he took appellants into custody from the police.
The substance of appellants' statements is to the effect that they were on their way to a funeral and a friend asked them to help him deliver some packages, as to the contents of which they had no knowledge. They consented, and the friend entered the car and sat on the back seat, the cushion of which, so far as they had knowledge, had not been removed, although it was missing when the officers found the liquor. This friend directed them to the private garage in controversy, and he got the liquor from the garage and placed it in the Ford, after which the Ford had not moved.
On this statement of facts appellants claim (1) that there was an unlawful search and seizure; (2) that there was no transportation; (3) that they had no knowledge of the contents of the packages; (4) that the evidence does not show that the liquor found was intoxicating and fit for beverage purposes; and (5) that the jail sentence on the second count is not authorized by statute.
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