Haning v. United States

• Decision Date: 11 June 1932
• Docket Number: No. 9353.,9353.
• Citation: 59 F.2d 942
• Parties: HANING v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

59 F.2d 942 (1932)

HANING v. UNITED STATES.

No. 9353.

Circuit Court of Appeals, Eighth Circuit.

June 11, 1932.

William N. Jamieson, of Omaha, Neb., for appellant.

Edson Smith, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and Lawrence I. Shaw, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before VAN VALKENBURGH and SANBORN, Circuit Judges, and DAVIS, District Judge.

DAVIS, District Judge.

Appellant, convicted of a second offense of unlawful possession of intoxicating liquor and sentenced to serve ninety days in jail, prosecutes this appeal.

The assignments of error are that the trial court overruled motions (1) to suppress the evidence, and (2) to direct a verdict.

The motion to suppress was submitted to the court on the evidence taken at the trial, and a consideration of the propriety of the ruling thereon requires a statement of the facts. Appellant, and her husband, resided at 2002 North Forty-Eighth street, in Omaha, Neb. Prohibition agents went to the vicinity of the residence on the night of September 8, 1930, where they concealed themselves on a vacant lot across the street from the house. The dwelling was constructed on the side of a hill, and the floor of the basement was near the level of the floor of the garage, which was built into the house. A door of the basement opened into the garage, and the outer door of the garage opened onto the sidewalk on the street. About 10 o'clock a light appeared in the garage, and the outer door was opened. Appellant was observed rolling a ten-gallon keg from the basement to the garage. She returned to the house, called for assistance, rolled out a second keg, and a man referred to as Jack Brown followed with a third keg. Each of these parties then pushed a keg out onto the public sidewalk, and Brown asked if he should carry it across the street, whereupon appellant said, "No, take it up this way," pointing to a bunch of weeds just across the alley. Brown carried the keg to the place indicated, when the agents crossed the street and arrested appellant as she stood on the sidewalk with one of the kegs at her feet. The agents knew the kegs contained liquor from the odor, and, upon opening the keg on the sidewalk, it was found to contain whisky. The third keg in the garage likewise contained whisky, and through the open door a fourth keg and several five-gallon jugs were observed in the basement. Appellant's son, with a gallon jug of whisky in his hands, descended the steps leading from the house to the basement, and, when he observed the officers, he broke the jug on the basement floor. The agents then entered the basement, where they found three fifty-gallon barrels and seven ten-gallon kegs of wine, eighty quarts of beer, and about twenty gallons of beer mash. All of this liquor was intoxicating. Appellant stated that the liquor belonged to her, and she sought to exonerate Brown of any responsibility in the matter. The appellant's husband was not shown by the evidence to have been present, or in or about the premises, on the occasion in question.

The appellant, on this evidence, asserts that the trial court should have declared that the seizure of the liquor was not justified because obtained as the result of a search without a warrant. The appellant was arrested in the act of committing an offense, and it was entirely proper for the arresting officer to search the premises, with a view of discovering the fruits of the crime. The rule has been applied in many cases where the premises were in part used as a dwelling house.

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be...