Hall v. United States

• Citation: 48 F.2d 66
• Decision Date: 23 March 1931
• Docket Number: No. 6342.,6342.
• Parties: HALL v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

48 F.2d 66 (1931)

HALL v. UNITED STATES.

No. 6342.

Circuit Court of Appeals, Ninth Circuit.

March 23, 1931.

John W. Ray, of Phœnix, Ariz., for appellant.

John C. Gung'l, U. S. Atty., of Tucson, Ariz., and J. S. Wheeler, of Phœnix, Ariz., and B. G. Thompson and Norman S. Hull, Asst. U. S. Attys., both of Tucson, Ariz.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

This is the second appeal in this case. See 41 F.(2d) 54.

Appellant was convicted upon three separate counts of an information charging: First, the unlawful possession of approximately 200 gallons of intoxicating liquor; second, the unlawful possession of certain property designed for the manufacture of intoxicating liquor; third, the maintenance of a common nuisance.

The government introduced evidence tending to prove that on or about July 15, 1928, George C. Ruffner, sheriff of Yavapai county, Arizona, had a conversation with appellant, Joe Hall, in which conversation Ruffner, among other things, said, "Well, now Joe, as far as this pool-hall business is concerned that is legitimate business, we issue licenses for that, but as for this other stuff, this making whiskey, I am going to make you quit," to which Hall replied, "Well, now, George, I want to tell you something, * * * I have got 350 gallons of damned good whiskey and I am going to sell it"; that a short time after this conversation Ruffner secured a search warrant from the superior court of said county to search Hall's residence and pool hall; that as a result of such search Ruffner found and seized the liquor referred to, as well as a gas burner, pressure tanks, condensers, a copper boiler, a cooling tank, and other property used and useful in the manufacture of intoxicating liquor; that all the above-described property is set forth in the return on the search warrant; that, at the time Ruffner secured the search warrant and proceeded to appellant's premises to make the search, Ruffner expected to find appellant either making or selling whisky, violations of the state prohibition law, and that he did not conceive the idea of turning the property over to the federal officers until after he had made the search and seizure and realized that appellant could only be prosecuted for the unlawful possession of the seized property, which is not a violation of the state prohibition law.

This court held on the former appeal that "the affidavit for the search warrant was on information and belief, and was clearly insufficient under the federal statutes. * * * The provision of the fourth amendment to the Constitution, forbidding unreasonable searches and seizures, refers to governmental action, and is not invaded by unlawful acts of individuals or of municipal or state officers, in which the government has no part. Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159. But evidence obtained through wrongful searches and seizures by state officers who are co-operating with federal officers must be excluded. Byars v. United States 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520, supra; Gambino v. United States, 275 U. S. 310, 314, 48 S. Ct. 137, 52 A. L. R. 1381, 72 L. Ed. 293. The latter case went one step further and held that where the search and seizure was made by state officers for the sole purpose of aiding in the prosecution of a federal offense, the testimony must be excluded, whether there was co-operation between state and federal officers at the time of the search and seizure or not." Hall v. United States, supra.

The trial court, after hearing all the evidence, concluded that at the time the state officer made the search and seizure he had no intention of securing evidence for the government and was not acting in co-operation with government officers; hence overruled appellant's motion to suppress the evidence. The evidence was sufficient to support the finding of the court in that regard. This disposes of the first assignment of error.

In this connection it might be well to consider assignment 8. It assigns as error the ruling of the court on appellant's objection to the admission in evidence of the affidavit for the search warrant, the search warrant itself, and the return thereon containing an inventory of the property seized. The record discloses that same were offered and admitted for the purpose of corroborating the testimony of the witness Ruffner, to show that the warrant was executed, and to identify the specific property that was seized under the warrant. In our opinion there was no error in admitting these documents. They were admissible not only as tending to corroborate the witness Ruffner's testimony as to the kind and character of the property which he found and seized, but also as tending to prove that in making the search he acted upon his own initiative as a state officer in attempting to enforce a state statute, and that he was not acting in co-operation with any federal officer.

In his brief, counsel for appellant states that "argument is not offered on assignments 2, 3, 4, 7, and 11," but he admits that said assignments were considered and disposed of by this court on the former appeal. This leaves for consideration assignments 5, 9, 10, 12, 13, 14, and 15.

Assignment 5 is argued in connection with assignments 13, 14, and 15.

Assignments 9 and 10 allege that the "court erred in denying defendant's motion for a directed verdict in favor of the defendant," and that "the verdict of the jury is...