Kelley v. United States

• Decision Date: 31 October 1932
• Docket Number: No. 9470.,9470.
• Citation: 61 F.2d 843
• Parties: KELLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F.2d 843 (1932)

KELLEY v. UNITED STATES.

No. 9470.

Circuit Court of Appeals, Eighth Circuit.

October 31, 1932.

Herman Aye, of Omaha, Neb. (J. D. Cranny, of Omaha, Neb., on the brief), for appellant.

Lawrence I. Shaw, 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 Edson Smith, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

KENYON, Circuit Judge.

Appellant was convicted on two counts of an indictment, one (count 3) charging him, in connection with Carl Hofeldt, with unlawfully and feloniously separating 1,313 gallons of alcoholic spirits from a fermented mash, they not being authorized distillers; the other (count 5) charging the unlawful possession of two stills designed for the manufacture of intoxicating liquor intended for use, in violation of the National Prohibition Act (27 USCA).

A number of assignments of error are urged raising the questions whether the court should have directed a verdict in favor of appellant Kelley on these two counts; the overruling of the motion to suppress certain evidence; the refusal to give certain instructions asked by appellant.

The most important propositions are: (1) Whether certain evidence introduced, consisting of parts of the still and liquors and paraphernalia found in the barn, was secured by an unlawful search and seizure; and (2) whether appellant is in position to raise such question.

The facts are these: Two prohibition officers, Davis and Benson, had come upon the farm of Carl Hofeldt in Sarpy county, Neb., to make inquiries as to certain parties they were investigating. As they drove into the driveway there came to them a strong odor of mash, which was proceeding from a new barn on the premises, situated below the feed yard, south of the house and west of the house inclosure. They talked with Mrs. Hofeldt about it and told her there was a still down in that new building. She said there was, but that it was not theirs. As they approached this building they saw some one leave the west end thereof and disappear out of sight toward a creek. When they reached the building they found the northwest door wide open. They saw in the barn vats, a steam boiler, an alcohol still, and near the door ten-gallon kegs, an alcohol can or two, and all the paraphernalia ordinarily accompanying the manufacture of whisky. Benson went after the man who had run down toward the creek, and Davis waited at the barn until he came back with him. He found this man (who was appellant) about one hundred feet from the barn near the creek, lying down in the grass. Benson asked him if he had anything to do with the distillery in the barn. He said he had been working there; that there was a cement block inside of the building and he went to pick it up and was going to heave it over the fence on the north side of the barn when he saw these men near the gate and he ran to the creek, and if it had not been for a wire fence he would have crawled through to the tall weeds. He told the prohibition agents he did not know who was the owner of the still; that he did not own the building or the still; that he happened to be working there because he was broke; and that he walked into a cigar store in South Omaha and was offered a job at $50 a week and took it. The officers made no search and seized no property prior to the arrest of Kelley. When Kelley was brought back to the barn by Benson the still was running.

Assuming that the search and seizure were unreasonable under the Fourth Amendment, is appellant in any position to raise this question? There was no evidence to show that Kelley was the owner of the still and other property in the barn used in separating the alcoholic spirits from the mash, or of the barn, or a lessee thereof, or that he had any interest whatsoever in any of the property or any lawful possession of the same. Some effort was made to show that ten acres of Hofeldt's farm upon which the barn was located had been sold, but the effort was not successful. Kelley was under his own evidence a mere employee. True, he was engaged in the business of manufacturing liquor and may have had such custody of the illegal business as an employee would have in the absence of the owner or lessee, who seems in this case enshrouded in mystery by the fantastic tale of Kelley that he did not even know who his employer was. It is not understandable how Kelley was aggrieved by the seizure of some one else's property in which he had absolutely no interest. The most that can be claimed here is that Kelley as an employee had a certain physical custody and control of the illegal business and of the incriminatory evidence. That is not sufficient.

Counsel for appellant in the reply brief with commendable frankness concedes that Wida et al. v. United States, 52 F.(2d) 424, and Occinto v. United States, 54 F.(2d) 351 (decisions of this court), sustain the position of the government that Kelley cannot raise the question of an unreasonable search, but seeks to demonstrate that these cases were erroneously decided, and cites two cases as stating the correct rule. One is United States v. De Bousi (D. C. Mass.) 32 F.(2d) 902, 903. This is a case where there was no search warrant. The private dwelling of one Ferro was searched and a still was found. Defendant was on the premises and claimed to be the owner of the still and of the liquors. The court assumed that he "asserted a right to occupy the premises and dominion over, and ownership in, the seized property." It is to be noted, however, that the court says at page 903 of 32 F.(2d): "It has been held in this court that one who disclaims any interest in the premises searched and the property seized cannot take advantage of the illegality of the search and seizure." The other case, Alvan et al. v. United States (C. C. A. 9) 33 F.(2d) 467, is a case where one was domiciled in a residence as a guest or employee of its owner at the time of the alleged unlawful search and seizure of a still and liquor, and it was held that such party was entitled to claim the benefit of the motion to suppress. This was also a case of search of a dwelling. The court said at page 470 of 33 F.(2d): "Incidentally, it is said for the government that no error was committed, because in the application for suppression there was no express averment of ownership by the appellants of the still and liquor. But, as already stated, the court did not pass upon the sufficiency of the application, and advised the parties that he would rule upon the facts as they were ultimately disclosed by the evidence, and undoubtedly the evidence established possession in defendants and ownership by Alvau. Besides, ownership of the building was directly alleged, and in essence the invasion of appellants' constitutional rights consisted of the forcible entry and the unwarranted search thereof." Their ownership was alleged which here was expressly denied by appellant.

Neither of these cases, it is apparent, is in point, nor in any way weakens the doctrine of Wida v. United States, supra, where this court said, page 426 of 52 F.(2d): "The evidence as to defendant Taylor makes his case somewhat different, but even weaker. He was a mere hired hand at this place, and he is not within the protection of either the Fourth Amendment or the above sections of the statutes, since Wida was the owner of the home and it is not contended that any search was made of anything belonging to Taylor." Or Occinto v. United States, supra, where this court said: "This motion was supported by the affidavit of one of the defendants, Fred Laluna. This affidavit set forth that this barn was the home and residence of Laluna and that it had been entered without a search warrant at the time the articles were found and taken therefrom. Laluna makes no claim to the ownership of the stills and other illicit articles sought to be recovered. In this situation he is in no position to complain of their being used as evidence, and this alone is enough to dispose of this matter. * * * As to appellant Occinto, who was merely a helper with no claim of living at the barn, there is no semblance of a basis to exclude this testimony."

Other cases in this court dealing with this question are Graham v. United States (C. C. A. 8) 15 F.(2d) 740, at page 742, where this court said: "If Graham was in a position to urge the objections made to this search warrant, we might be compelled to sustain them. They cannot, however, be availed of by this defendant. The buildings searched belonged to, and were under the control of, his father. The narcotics seized were not in young Graham's possession, and at no time has he made any claim thereto. * * * The guaranty of the Fourth Amendment to the Constitution against unreasonable search and seizure is a personal right or privilege, that can only be availed of by the owner or claimant of the property subjected to unreasonable search and seizure." And McMillan v. United States (C. C. A. 8) 26 F.(2d) 58, where it was held that a defendant who disclaimed all dominion over place and property found could not raise the question of the validity of a search warrant.

The question seems well settled in this circuit that one who is not the owner, lessee, or lawful occupant of the premises searched cannot raise the question under the Fourth Amendment of unlawful search and seizure. To the same effect in other circuits: Armstrong v. United States (C. C. A. 9) 16 F. (2d) 62; Coon v. United States (C. C. A. 10) 36 F.(2d) 164; United States v. Messina (C. C. A. 2) 36 F.(2d) 699; Patterson v. United States (C. C. A. 9) 31 F.(2d) 737; Nixon v. United States (C. C. A. 9) 36 F. (2d) 316.

While Kelley claims in his evidence he was a mere employee, did not own the still or the building, and was merely working there for...