Gilliam v. United States, 11205.

• Decision Date: 01 June 1951
• Docket Number: No. 11205.,11205.
• Citation: 189 F.2d 321
• Parties: GILLIAM v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

189 F.2d 321 (1951)

GILLIAM v. UNITED STATES.

No. 11205.

United States Court of Appeals Sixth Circuit.

June 1, 1951.

M. Gilbert Goodwin, Lenoir City, Tenn., Hobart F. Atkins, Knoxville, Tenn., on brief, for appellant.

Otto T. Ault, James M. Meek, Knoxville, Tenn., on brief, for appellee.

Before SIMONS, ALLEN and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

In an indictment containing three counts appellant was charged with violation of § 2803(a) and § 2913, I.R.C., 26 U.S.C.A. §§ 2803(a), 2913, by transporting possessing, and concealing distilled spirits upon which the taxes imposed by the internal revenue laws of the United States had not been paid. Jury trial was waived and the case was tried to the court. Prior to the trial a motion to vacate seizure and suppress evidence was overruled. By stipulation between the parties it was agreed that the same evidence heard and introduced and the same objections interposed by the accused on the hearing of the motion to suppress the evidence should be treated as reintroduced and reinterposed on the trial. The court found appellant guilty under all counts of the indictment, sentenced him under the first and second counts, the sentences to run concurrently, and placed him under probation on the third count.

The case arises out of the following facts, which are not disputed:

On August 12, 1949, investigators for the Alcohol Tax Unit at Knoxville, Tennessee, received information from a deputy sheriff that he had been told by a reliable informer that appellant, a known bootlegger, had left his home in Loudon County, Tennessee, to go to the Ball Play region of the adjoining county of Monroe, a moonshining district, to pick up a load of whiskey. The federal officers were given the license number and description of appellant's automobile. On the same afternoon they went to the neighborhood indicated and after some time saw an automobile of the given description turn into the Ball Play Road, driven by appellant. The federal officers had neither a warrant for arrest, nor any search warrant. They followed the automobile for some distance, stopped by the side of appellant's car, and Officer Bomar got out and said, "Pull over Gilliam, we are Federal Officers." Appellant stopped, and Bomar said: "How much whiskey have you got?" whereupon appellant "reached down between his legs and got a little square jar, about a half pint size and said: `Here it is.'" The bottle contained illicit whiskey. Appellant handed it out of the window and said it was all he had and that he "had found it by the road." Bomar then searched the rear of the car and found 24 half-gallon jars of whiskey. After the search and discovery of the quantity of whiskey, none of which carried tax stamps, the officers told appellant he was under arrest. The second officer corroborated the testimony of the first in all essential particulars.

Appellant contends, as he contended in the District Court, that the court committed reversible error in refusing to sustain the motion to suppress the evidence, and that there was no competent testimony upon which to base a finding of guilty. He argues that the whiskey was discovered as the result of an exploratory search made by reason of hearsay information which, under the Fourth Amendment, could not authorize the issuance of a search warrant.

This contention ignores the facts of the case, "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L. Ed. 1879. Appellant's car was searched not as soon as it was stopped, but after a conversation in which appellant produced a bottle of unstamped whiskey, said that it was all he had, and that he had found it by the road. The fact that a known bootlegger was found within a notorious bootlegging area in the exact car which had been described to the officers, in possession of unstamped whiskey concerning which he gave a highly questionable explanation, constitutes reasonable cause within the purview of Brinegar v. United States, supra. The illegal possession was seen, and appellant's unconvincing story was heard by the officers themselves. "The Fourth Amendment does not prohibit the search, without warrant, of an automobile, for liquor illegally transported or possessed, if the search is upon probable cause; and arrest for the transportation or possession need not precede the search." Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Husty v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 241, 75 L.Ed. 629. Whether the search of an automobile without a warrant is valid depends upon whether the search is made upon probable cause, that is, upon a belief reasonably arising out of circumstances known to the officer that the vehicle contains unstamped liquor. The question presented is not whether probable cause existed before the automobile was stopped and the officers talked with appellant. The question is whether the combination of what the officers saw with the reliable information they had received is probable cause to justify the search.

The stopping of appellant's car was not an arrest. No intent to apprehend appellant was shown and no move was made to take him into custody at that time. The officers did not open the car door when it was stopped, nor state that appellant was under arrest, nor touch his person. At the commencement of the search, which was after the car had been stopped, reasonable grounds existed for believing that a felony was being committed, and the subsequent arrest was valid.

Hearsay evidence is not to be eliminated as a basis, together with other circumstances, for probable cause justifying a search. United States v. Li Fat Tong, 2 Cir., 152 F.2d 650; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032; Husty v. United States, supra. Here the case presents positive evidence of what was seen and heard by the officers at the place of the search, in addition to what they were told by the deputy sheriff. United States v. Heitner, 2 Cir., 149 F.2d 105, certiorari denied, 326 U.S. 727, 66 S.Ct. 33, 90 L.Ed. 432; Wisniewski v. United States, 6 Cir., 47 F.2d 825; One 1941 Ford ½ Ton Pickup Automobile Truck v. United States, 6 Cir., 140 F.2d 255; Brinegar v. United States, supra.

Judgment affirmed.

McALLISTER, Circuit Judge (dissenting).

James Paul Gilliam appeals from a conviction on the charge of possessing and transporting distilled spirits in violation of Section 2803(a) of the Internal Revenue Code. He contends that he was arrested and his automobile searched by federal officers without probable cause, in contravention of the Fourth Amendment to the Federal Constitution. Error claimed is failure of the district court to suppress the evidence obtained by the arrest and search.

Gilliam, a resident of Loudon County, Tennessee, was driving his automobile in Monroe County, of that state, on the afternoon of August 12, 1949, when a car in which two federal agents were pursuing him, overtook him and pulled up alongside. One of the officers called out to appellant: "Pull over Gilliam, we are Federal Officers." Gilliam immediately stopped his car and one of the officers drove the government car around in front of Gilliam's car so that he could not get away from them. Both officers then went up to the appellant's car and Agent Bomar walked up to the open window where appellant was sitting and said: "How much whiskey have you got?" Appellant then reached down in front of him on the floor and picked up a small one-half pint jar, which he handed out the window, declaring, "That is all I have got." One of the officers then took his car keys, opened the trunk of his car, found twenty-four half gallon jars of unstamped whiskey, and arrested him. The circumstances leading up to the apprehension of Gilliam are as follows: The two federal officers, on a casual visit to the office of the sheriff of Loudon County, were advised by one of the deputies that some informer, whom he considered reliable, had told him that Gilliam had gone to Ball Play, in Monroe County, for a load of whiskey and would be back that afternoon. The deputy sheriff further stated that Gilliam was known as a bootlegger in Loudon County; that the sheriff had raided him repeatedly but had never been able to obtain a case against him because he had always managed to pour the whiskey out. But they had never even arrested him, and neither the deputy sheriff nor anyone else ever appeared as a witness to prove that Gilliam was known as a bootlegger, that he had been "raided," or that he had "poured the whiskey out." One of the federal officers stated on the trial that quite a lot of moonshining was carried on in the section of Ball Play. The federal officers could not recall the name of the deputy sheriff who had retailed the information to them, but stated that they knew him and had worked with him, and had found that, on other occasions, he had given them reliable information regarding law violators. They did not know who the man was who had furnished the information to the deputy sheriff that appellant was planning to transport illicit liquor. The federal officers had never seen or heard of Gilliam before they overtook him on the highway. They had observed no violation of the federal law before they commanded Gilliam to stop, and aside from the information received from the deputy sheriff, had no reason to believe that he was committing any offense, or ever had committed any offense. They identified him from the description of his car and its license number which had been furnished to them by the deputy sheriff. Solely upon the information given, they stopped him, blocked his way of escape, searched his car, and arrested him. The deputy sheriff was not with them and did not participate in the arrest. The only...