Kaiser v. United States, 9318.

• Decision Date: 07 September 1932
• Docket Number: No. 9318.,9318.
• Parties: KAISER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

60 F.2d 410 (1932)

KAISER et al. v. UNITED STATES.

No. 9318.

Circuit Court of Appeals, Eighth Circuit.

July 19, 1932.

Rehearing Denied September 7, 1932.

William Anderson, of St. Paul, Minn. (A. M. Cary, of Minneapolis, Minn., on the brief), for appellants.

Robert V. Rensch, Asst. U. S. Atty., of St. Paul, Minn. (Lewis L. Drill, U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before STONE and KENYON, Circuit Judges, and OTIS, District Judge.

KENYON, Circuit Judge.

Appellants, who will be herein designated as defendants, were convicted of unlawfully transporting some forty gallons of intoxicating liquor. Defendant Kaiser was sentenced to two years in the penitentiary and defendant McCormick to two and one-half years.

Four points are argued under the assignments of error and relied on for reversal, viz.: (1) Error of the court in overruling the motion to suppress certain evidence secured by the prohibition agents in a search of the automobile in which it was being transported; (2) error in admitting as a part of the government's case the motion including verified petition of defendant McCormick to suppress evidence claimed to have been secured in violation of his constitutional rights; (3) error in the court's refusal to give a requested instruction in behalf of Kaiser as to the effect of admissions made by McCormick; (4) error in refusing to give a requested instruction as to Kaiser being a casual employee.

The last two alleged errors relate only to the case of defendant Kaiser.

The first point raises the question of an alleged unlawful search of an automobile traveling upon a highway resulting in finding forty gallons of intoxicating liquor therein. Defendant McCormick moved to suppress this evidence as secured by unlawful search and seizure in violation of the Fourth and Fifth Amendments to the Federal Constitution. No motion was made on behalf of Kaiser. The law relating to search of automobiles supposed to be transporting intoxicating liquors has been clarified and settled by a number of decisions of the Supreme Court of the United States. The substance of the whole matter is summed up in Husty et al. v. United States, 282 U. S. 694, 700-701, 51 S. Ct. 240, 241, 75 L. Ed. 629, 74 A. L. R. 1407, as follows: "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. * * * We think the testimony which we have summarized is ample to establish the lawfulness of the present search. To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. * * * It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched."

See, also, Dumbra v. United States, 268 U. S. 435, 45 S. Ct. 546, 69 L. Ed. 1032; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Wida v. United States (C. C. A.) 52 F.(2d) 424.

The question of whether the search and seizure was lawful depends upon whether there was probable cause for a reasonably discreet and prudent man to believe that liquor was being transported unlawfully in the automobile driven by McCormick. The trial court upon a hearing on the motion decided there was such probable cause, and denied the motion to suppress. The only witness testifying on this hearing was the federal prohibition agent, Nelson, stationed at Detroit Lakes, Minn. He also with other witnesses testified at the trial. The facts developed in the hearing on the motion and in the trial are these: Nelson, a federal prohibition agent, assisted by prohibition agents Harney and Robbins, made the arrest of both defendants on the night of April 2, 1931, on a county road near what was known as the Gorder farm about seven miles northeast of Moorhead, Minn. Nelson had been conducting investigations concerning these two defendants for some months. He testified: "I had information that the McCormick residence at 303 11th St., North, in Moorhead was used as an office for the taking of orders for loads of alcohol, or for quantities, — that the orders were accepted there and then it was delivered, — and that the Gorder Farm Northeast of Moorhead was used as a storage plant for the alcohol belonging to McCormick and Kaiser."

And, when asked, "What was the nature of the information which you had with reference to how the cars proceeded?" he answered: "The information was that the cars traveling from the McCormick residence in Moorhead and going North on Highway No. 6, would at night, turn off their headlights before they turned East on the County Road towards the Gorder farm."

Previous to the time of the arrest he had made two observations along the highway between the McCormick home and the Gorder farm in the nature of checking on automobiles. On one of these occasions the car he was observing turned off the lights as it turned east toward the Gorder farm. His information was that the persons using the Gorder farm and the McCormick residence in connection with the sale and transportation of liquor were defendants McCormick and Kaiser; that the usual procedure was for cars to leave the McCormick residence, drive out on highway No. 6 to the junction of the county road leading to the Gorder farm, and his information was that when they reached this point, the lights of the car were extinguished, and his observations prior to the time of the arrest showed the accuracy of the information he had received. On the night of the arrest he observed a Ford car drive up in front of the McCormick residence in Moorhead where it remained for five or ten minutes. During that time a man left the car. Two men left the McCormick residence and entered this car. Nelson followed in his car, accompanied by the other agents, Harney and Robbins. He testified the tail-light on the Ford car was unusually bright, and from the time the car left the McCormick home until it turned east on the county road he did not lose sight of it. When this Ford car which they were following turned off highway No. 6 on to the county road, it turned its lights off. Nelson went along on the state highway about a mile and doubled back to the county road, where he turned off his lights and went east toward the Gorder farm. For a period of ten or fifteen minutes he had lost sight of the tail-lights on the Ford car. While on the road opposite the Gorder farm he saw the lights as they were turned on the car in the farm yard, and noticed the same peculiar light on the car which they had noticed on the car they were following, which turned into the road leading to the Gorder farm. They waited near the entrance to the farmyard, and, when the lights of the Ford car turned toward the Nelson car, Nelson turned on the lights. The other car stopped, started forward, stopped again, then in reverse speed backed up, and the Nelson car followed it. When this car again stopped, the three agents got out of the Nelson car and went to the car which was being driven by McCormick with Kaiser at his side. Before any arrest or search was made, they asked what was in the car, and were told by McCormick that the car contained alcohol. They then arrested McCormick and Kaiser, searched the car, and found forty gallons of alcohol in the rear section. Kaiser did not give his correct name to the officers. At the time of the trial, Harney, who had not testified in the hearing on the motion, stated, "But as I got a little closer to the car, or right next to it, I could smell alcohol."

Defendants cite a number of cases where it was held that the evidence was not sufficient to show probable cause for search or seizure of an automobile, and undoubtedly there are many such cases. It seems to us that the circumstances disclosed in the evidence given at the time of the hearing on the motion would lead a reasonably discreet and prudent man to believe that the operators of the car were in the illegal possession of liquor in the automobile, and that is the test of probable cause. There was certainly reasonable ground to stop the car and make inquiry, and, when inquiry was made, McCormick admitted there was alcohol in the car. The officers then had reason to believe that a felony was being committed in their presence, and therefore had the right to arrest defendants and make the search and seizure of the liquor. In Nelson v. United States, 18 F.(2d) 522, 524, this court said: "In view of the testimony in this record, we do not feel justified in saying that the lower court erred in denying the motion to suppress the evidence. The officers acted upon the defendant's reputation as a law...