Furlong v. United States

• Decision Date: 06 January 1926
• Docket Number: No. 6872.,6872.
• Citation: 10 F.2d 492
• Parties: FURLONG v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

10 F.2d 492 (1926)

FURLONG v. UNITED STATES.^*

No. 6872.

Circuit Court of Appeals, Eighth Circuit

January 6, 1926.

E. D. O'Sullivan, of Omaha, Neb. (W. N. Jamieson and C. J. Southard, both of Omaha, Neb., on the brief), for plaintiff in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., of Omaha, Neb., Ambrose C. Epperson, Asst. U. S. Atty., of Clay Center, Neb., and Andrew C. Scott, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before KENYON and BOOTH, Circuit Judges, and AMIDON, District Judge.

AMIDON, District Judge.

Defendant was indicted for violating the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), the first three counts charging unlawful sales, and the fourth the maintenance of a nuisance. These violations are charged as second offenses. The indictment sets out fully the information in the first prosecution charging in seven counts the unlawful sale of liquor, and in the ninth count the maintenance of a nuisance. The indictment also alleges the proceedings of the court under this information. It states that the defendant pleaded guilty to all of the counts, and sets forth the judgment of the court upon that plea sentencing him to pay a fine of $300. It further alleges that no proceedings on writ of error had been taken by the defendant and that the time for obtaining such writ had expired. It charges in appropriate language the offenses here involved to be second offenses.

Defendant attacked the sufficiency of this indictment, both by demurrer and motion. He insists first that the charge of a second offense is insufficiently pleaded because the indictment does not allege that no proceedings had been had in the trial court to set the conviction aside. In our judgment there is no merit in this assignment. The only object to be served by this part of the indictment was to give the defendant clear notice that the offenses of which he was charged in the present prosecution were second offenses, and to set forth with reasonable clearness the former charge and his conviction thereon. The indictment fully answers these purposes.

It is next urged that the indictment fails to state facts sufficient to constitute a public offense. The indictment clearly specifies the city in which the sale was made, the person to whom it was made, and the quantity and kind of liquor sold. One needs only to compare these specific facts with the averments of the indictment in Carpenter v. United States (C. C. A.) 1 F.(2d) 314, upon which defendant relies, to see that the present indictment is not subject to the criticism leveled against the pleading in that case. The indictment here goes much farther in specification than the indictment sustained by this court in Hensberg v. United States, 288 F. 370. See, also, Ritter v. United States (C. C. A.) 293 F. 187.

The error most dwelt on here and in the trial court grows out of an alleged violation of the Fourth and Fifth Amendments of the federal Constitution. The facts on that subject are these:

On May 9th and 12th two prohibition agents visited a soft drink place kept by defendant, and purchased liquor. On the 15th of that month a plan was laid by the officers to get evidence of the character of the place and of defendant's violation of the law. The same two agents were given a marked one-dollar bill and directed to enter the place and purchase intoxicating liquors. Three other officers waited near by. As soon as the liquor was purchased and paid for with the bill, the two agents making the purchase took the glasses containing the liquor and walked out of the building and signaled to the other waiting officers. They immediately rushed into the building. The liquor was placed in a bottle and marked. The head officer, named Samardick, demanded the dollar bill of defendant. This officer and the other agents testified that Furlong directed the bartender, Pooler, to open the cash register and get the bill, and that he did so and delivered it to Samardick. Defendant and Pooler testified that Samardick insisted upon Furlong's opening the cash register, and that in obedience to the demand of the officer Furlong opened it and produced the bill and turned it over to Samardick. Either version is sufficient to raise the question whether the bill was obtained by an unreasonable search and seizure in violation of the Fourth Amendment, and whether its use in evidence by the government was a violation of the Fifth Amendment. Before the trial defendant by a proper motion applied to the court for an order directing a return of the bill. The same question was raised throughout the trial by proper motions and objections.

Do these facts support the constitutional objections? Clearly not. The purchase of liquor, the recovery of the marked bill, and the arrest of the defendant were all part of a single transaction. It was not only the right but the duty of the officer to seize the bill as a part of the arrest. It was a factor in the crime, and important proof of its commission. The rule on the subject is stated as follows in 1 Bishop's Criminal Procedure, § 211:

"The arresting officer ought to consider the nature of the accusation; then if he finds on the prisoner's person, or otherwise in his possession, either goods or money which he reasonably believes to be connected with the supposed crime, as its fruits, or as the instruments with which it was committed, or as supplying proofs relating to the transaction, he may take and hold them to be disposed of as the court directs."

This statement is approved by the Supreme Court in Carroll v. United States, 267 U. S. 132, 158, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Weeks v. United States, 232 U. S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. See, also, Agnello v. U. S., 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. ___ (filed October 12, 1925).

The same doctrine is laid down in Holker v. Hennessey, 141 Mo. 527, 42 S. W. 1090, 39 L. R. A. 165, 64 Am. St. Rep. 524; Ex parte Hurn, 92 Ala. 102, 9 So. 515, 13 L. R. A. 120, 25 Am. St. Rep. 23; Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. Rep. 307.

It is the duty of the officer making an arrest to take money or other articles connected with the crime, or evidencing its commission, from the person of the defendant, or from his possession or control, and hold the same subject to the order of the court. In this case the officer had the same right to take the marked bill from defendant's cash register as from his pocket. The extent of the search and seizure at the time of arrest must depend to some extent upon the nature of the crime.

See, in addition to the above authorities, Ash v. Commonwealth, 193 Ky. 452, 236 S. W. 1032; Ragland v. Commonwealth, 204 Ky. 598, 265 S. W. 15; Sayers v. United States (C. C. A.) 2 F.(2d) 146; Brady v. United States (C. C. A.) 300 F. 540.

Considering our increasing failure in dealing with crime, there is the highest wisdom in the following statement of the Supreme Court in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790:

"The Fourth Amendment denounces only such searches or seizures as are unreasonable, and it is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interest as well as the interests and rights of individual citizens."

Two of the government agents, Samardick and Schmidt, were asked on...