Kanellos v. United States

• Decision Date: 20 July 1922
• Docket Number: 1947.
• Citation: 282 F. 461
• Parties: KANELLOS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

282 F. 461

KANELLOS v. UNITED STATES.

No. 1947.

United States Court of Appeals, Fourth Circuit.

July 20, 1922

C. N Sapp, of Columbia, S.C., for plaintiff in error.

G.L.B Rivers, Asst. U.S. Atty., of Charleston, S.C. (Francis H Weston, U.S. Atty., of Columbia, S.C., on the brief), for the United States.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

WOODS Circuit Judge.

Defendant, Louis Kanellos, was convicted of having in his possession and transporting intoxicating liquor. The conviction rested entirely on the evidence of a state constable, who testified that without a search warrant and against defendant's protest he searched the pockets of defendant's automobile and found two quarts of whisky. No federal officer participated in the search. There is not a particle of evidence that the search and seizure was under arrangement with a federal officer or in the enforcement of a federal law. The state of South Carolina has its own liquor laws, enforceable, of course, by its own officers. Elrod v. Moss (C.C.A.) 278 F. 123. A motion was made to strike out this testimony on the ground that defendant was protected from such search and seizure by the Constitution of the United States, and that evidence obtained by means of it was incompetent. The court was asked to direct a verdict of acquittal on the same ground. We think the District Judge was right in refusing both motions.

It is true we held such evidence incompetent in Dukes v. United States (C.C.A.) 275 F. 142, but on the point now to be decided that case cannot be followed. The general rule is that vicious origin goes to the credibility, not to the competency, of evidence. Adams v. New York, 192 U.S. 585, 24 Sup.Ct. 372, 48 L.Ed. 575. See extended note 13 Am.St.Rep. 135; L.R.A. 1915B, 834. But the Supreme Court has held, as an exception to this rule, that evidence acquired in an illegal search made by a federal officer is not competent in a federal court. Amos v. United States, 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654. The intricate distinctions and difficulties which arise in the application of this exception are illustrated in cases now before us. Even if the point were open, we should not be inclined to extend the exception beyond the express requirement of that case. The Supreme Court has held it is not to be extended to evidence obtained in an illegal search by a state officer.

If a post office is robbed, and a United States marshal, without warrant, enters the home of the thief and finds the stolen registered mail and the burglar's tools used to enter the post office, it may be that under the rule announced in the Amos Case the marshal could not testify to the discovery. But the Supreme Court has held that such a discovery made in an illegal search by a sheriff or a policeman or a private individual is competent evidence.

The point was directly involved and decided in Weeks v. United States, 232 U.S. 383, 398, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, denying the right of the defendant to have returned papers seized by state officers in a search made without a search warrant, turned over to the United States marshal and held by the district attorney to be used as evidence against the defendant. The court said:

'As to the papers and property seized by the policeman, it does not appear that they acted under any claim of federal authority such as would make the amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment of the federal court, under what supposed right or authority does not appear. What remedies the defendant may have against them we need not inquire, as the Fourth Amendment is not directed to individual misconduct of such officials. Its limitations reach the Federal Government and its agencies. Boyd Case, 116 U.S. 616. And see Twining v. New Jersey, 211 U.S. 78.'

It is to be noted that the Weeks Case arose in the state of Missouri, and the Constitution of that state contains substantially the same provisions as to unreasonable searches and seizures as the Fourth Amendment to the Constitution of the United States.

Again, in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 Sup.Ct. 182, 183 (64 L.Ed. 319), the court, speaking of papers obtained by government officers in violation of the Fourth Amendment, says:

'If knowledge of them is gained from an independent source, they may be proved like any others; but the knowledge gained by the government's own wrong cannot be used by it in the way proposed.'

In Burdeau v. McDowell, 256 U.S. 465, 41 Sup.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159, it was again held that the security afforded by the Fourth Amendment applies solely to action taken under federal authority or by federal officers; and where papers are unlawfully taken by individuals unconnected with the federal government, and afterwards come into the possession of federal officers, they may be used as evidence against the person from whom they were taken.

These cases related to seizure of incriminating private papers, not intoxicating liquors. But we are unable to distinguish this case on that ground. The significance of the second section of the Eighteenth Amendment has not yet been accurately determined. Doubtless it does confer upon the several states power to enact legislation appropriate to the purpose of enforcement of the amendment. National Prohibition Cases, 253 U.S. 353, 391, 40 Sup.Ct. 486, 588, 64 L.Ed. 946; Vigliotti v. Pennsylvania (April 10, 1922) 258 U.S. . . ., 42 Sup.Ct. 330, 66 L.Ed. . . . . But it does not make prohibition officers of the several states, by reason of their state commissions, officers of the United States exercising federal authority. Surely it cannot be held to overthrow the long line of cases like Twining v. New Jersey, 211 U.S. 78, 29 Sup.Ct. 14, 53 L.Ed. 97, holding that the Fourth Amendment does not protect the citizens against unreasonable searches by the state government and its agencies.

In United States v. Falloco (D.C.) 277 F. 75, it was held that evidence obtained by a state officer by an unlawful search was incompetent in a federal court, if a federal officer co-operated with the state officer in the unlawful search. This doctrine has no application here, because there was an entire absence of evidence of participation or co-operation by a federal officer.

The conclusion that the evidence was competent is sustained in Youngblood v. United States (C.C.A.) 266 F. 795; United States v. Burnside (D.C.) 273 F. 603.

Affirmed.

WADDILL Circuit Judge (dissenting).

The opening sentence of the majority opinion gives a brief statement of the case, namely, that a state constable, without search warrant, arrested the plaintiff in error for having in his possession and transporting two quarts of intoxicating liquors found in the pocket of defendant's automobile, and that the conviction rested solely on testimony of this witness.

A slightly more detailed account of the occurrence, and showing the result thereof, should perhaps be given, in view of the seriousness of the case and its far-reaching importance. This constable, according to his own statement, without search warrant or other process, accosted the plaintiff in error while sitting in his automobile on a public street of the city of Columbia, searched the car over defendant's protest, and, finding in the pocket of the front door of the car two quarts of white Scotch whisky, arrested defendant, plaintiff in error, handcuffed him, and took him to the Richland county jail, directing the car to be taken to the jail, which was done, and upon further search, and no other liquor found, the car was then turned over to the federal prohibition agent, and by him held pending the result of the trial.

This occurred on the 16th of September, 1921, and on the 1st day of November, being the first day of the November term of the United States District Court at Columbia, the indictment was returned by the federal grand jury against the plaintiff in error, charging him with violating the National Prohibition Act (41 Stat. 305), for having in his possession and transporting the intoxicating liquors in question, and averring that he had previously been convicted of violating the said act. On the 9th of November the defendant pleaded not guilty, and upon trial a verdict of guilty was rendered against him by the jury which the court approved, sentencing him to imprisonment in the county jail for 90 days and to pay a fine of $1,000 and the costs of the prosecution. The testimony of the constable was admitted in evidence over the objection of the defendant, and it is as to the propriety of this ruling and the entry of judgment aforesaid that this writ of error is based.

The majority opinion proceeds upon the theory that inasmuch as the search and seizure in this case, and the arrest, imprisonment, and conviction, were all upon the testimony of the state officer, that the inhibitions of the Fourth and Fifth Amendments to the Constitution of the United States against unlawful searches and seizures, and compelling one to testify against himself, have no application, and hence cannot be relied upon as a defense by the defendant, it matters not how outrageous the officer's actions may have been, nor how serious its consequences to the defendant were. In support of their position, among other cases, the majority cite Twining v. New Jersey, 211 U.S. 78, 29 Sup.Ct. 14, 53 L.Ed. 97, Weeks v. United States, 232 U.S.

383 398, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, Silverthorne v. United States, 251 U.S. 385, 392, 40 Sup.Ct. 182, 64 L.Ed. 319, and Burdeau v....