Hodges v. United States, 16171.

• Decision Date: 12 April 1957
• Docket Number: No. 16171.,16171.
• Citation: 243 F.2d 281
• Parties: Douglas Joseph HODGES and Vernon Clyatt, Rewis, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

243 F.2d 281 (1957)

Douglas Joseph HODGES and Vernon Clyatt, Rewis, Appellants, v. UNITED STATES of America, Appellee.

No. 16171.

United States Court of Appeals Fifth Circuit.

April 12, 1957.

A. M. Crabtree, Jr., John W. Muskoff, Jacksonville, Fla., for appellants.

E. Coleman Madsen, Asst. U. S. Atty., Jacksonville, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE, JONES and JOHN R. BROWN, Circuit Judge.

BROWN, Circuit Judge.

Hodges and Rewis were jointly indicted, tried and convicted under 26 U. S.C.A. §§ 5174, 5606, 5216, and 5008 for illegal possession of distilling apparatus, carrying on the business of a distillery without bond, fermenting mash, and possession of distilled spirits. Each appeals by separate counsel.

Caught red-handed in the raid of January 12, 1955, on his own property from which he could not escape with a 500-gallon still, 4500 gallons of mash, and 230 gallons of nontaxpaid liquor, the only point of substance as to Rewis concerns the search warrant under which the raid took place. As to Hodges, whose presence and participation may have been more equivocal and whose sudden flight ended by running into a wire fence, the disposition of his appeal is for procedural matters. Hence we find it unnecessary to add to the ever expanding literature of the law another recital of the familiar details in moonshine operations and the ceaseless efforts to stamp it out.

Rewis contends that the search warrant issued January 12, 1955, the day of the raid was illegal because it was based on information obtained the night before, January 11, 1955, by an Agent then unlawfully within his curtilage without a warrant. On a pre-trial hearing the District Court, after full evidence, denied the motion to suppress the fruits of the raid and held the warrant valid.

On both nights the still was set up and operating in a chicken house. It was within the 12-acre tract generally fenced in, west of River Road and which, with 68 acres east of the road, formed Rewis' 80-acre farm. All dwelling and farm buildings were on the 12-acre tract. The house, shed, garage and milking barn were within a separate fenced enclosure. Three other chicken houses and a hog pen were in two enclosures north and west of the house. Approximately 100 feet south of the dwelling enclosure fence was an area about 240 feet in length, east and west, by 95 feet in width north and south, completely surrounded by a wire fence. Cutting this area in two parts was a further north-south fence about 100 feet from the west side. It was in the east portion of this area that the chicken house used as a distillery was located. West of the chicken-still house area, Rewis' 12 acres extended for about 382 feet to his western boundary fence. The chicken-still house area was about 200 feet north of Rewis' fenced boundary line on the south.

The chicken-still house was thus 150 feet from the home, separated from it by two fences, as it was from the large pasture area on the west.

On the night of January 11, the Agent stealthfully made his way along the south boundary fence, crossed it at the south-west corner, then crossed the west boundary fence to a position in the pasture area about 225 feet due west of the chicken house. There were thus two fences between him and the chicken house as he made his surveillance. From this vantage point, by use of binoculars, he had an unobstructed view of the activities within the chicken house, the south end of which was substantially open. What he saw and smelled was more than enough for a prudent person to conclude that moonshining was taking place. Clay v. United States, 5 Cir., 239 F.2d 196, 201-202; McBride v. United States, 5 Cir., 284 F. 416, certiorari denied, 261 U.S. 614, 43 S.Ct. 359, 67 L. Ed. 827.

As we have recently restated, what is curtilage is a question of fact, since what is intended to be included are the buildings comprising the immediate domestic establishment and which are thus the buildings "constituting an integral part of that group of structures making up the farm home," Walker v. United States, 5 Cir., 225 F.2d 447, at page 449. We have no doubt, however, that neither the chicken house, the enclosed area in which it was situated, the enclosure immediately to the west of it, nor the large pasture area in which the Agent was stationed for his vigil was curtilage. These were too removed in distance and too definitively set apart by fixed fences from the farm home to be a part of it.

There was no invasion of home or its immediate appurtenances forming the curtilage. At most it was a trespass in an open field which affords Rewis no aid or comfort since "the special protection accorded by the Fourth Amendment to the people in their `persons, houses, papers and effects,' is not extended to open fields * * *" and "It is obvious that even if there had been a trespass, the * * * testimony was not obtained by an illegal search or seizure," Holmes, J., Hester v. United States, 265 U.S. 57, 58, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, 900.

The search warrant was valid, issued on legal and probable cause. It is...