Kelly v. United States, 13896.
| Decision Date | 07 July 1952 |
| Docket Number | No. 13896.,13896. |
| Parties | KELLY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry R. Carr, Miami, Fla., for appellant.
Ernest L. Duhaime, Asst. U. S. Atty., Miami, Fla., for appellee.
Before HUTCHESON, Chief Judge, and BORAH, and RUSSELL, Circuit Judges.
Walter Kelly was convicted on three counts of an indictment charging the unlawful possession, concealment, and transportation of distilled spirits in violation of § 2803(a) and 3116 of the Internal Revenue Code, 26 U.S.C. §§ 2803(a), 3116.
Before the trial the defendant moved to suppress the evidence, which served as a basis for the conviction, on the grounds that it had been obtained by an unreasonable search and seizure contrary to the provisions of the Fourth Amendment.1
The motion to suppress was denied and defendant's objection to the evidence at the trial was overruled. The sole question presented by this appeal is whether the trial court erred in failing to suppress the evidence so obtained.
Taking the government's version of disputed events, not because we are bound by the district court's findings but rather because we are in agreement therewith, we rest our decision on these facts. During the period from January 5th through January 19th, 1951, the United States Border Patrol, pursuant to the authority contained in Title 8, Section 110, U.S.C.A., as amended, was maintaining a checking station or road block on U. S. Highway 1 seven miles south of Homestead, Florida, which is the only highway leading out of the isolated Florida Keys.2 The station, with a complement of six men, was officially established on orders from the Chief Border Inspector and the occupants of all vehicles passing the station traveling north were questioned as to their nationality and, if the possibility of concealment existed, all vehicles were searched for aliens. South of the point where traffic was being checked and at intervals of approximately two hundred yards there were three signs on the right hand side of the highway warning the travelling public of the presence of federal officers.
On the afternoon of January 19th between the hours of three and four patrol inspector Lowery saw a yellow Buick automobile turn around in the highway several hundred yards south of the point where he was checking traffic. His suspicion aroused, he gave chase. After travelling a distance of fifteen or nineteen miles at excessive speed and with his siren blowing a summons to stop, the fleeing automobile was finally overtaken in a curve of the road and stopped when the pursuing car pulled across in front of it. When the automobiles came to rest inspector Lowery, who was then in official uniform, got out of his car and Kelly, who had previously alighted from his automobile, came walking towards him. As Kelly drew near, he put his hands inside of his overalls. Thereupon the inspector cautiously laid his hand on the butt of his gun and ordered Kelly to stand where he was and to take his hands out from under his overalls. Lowery's objective in stopping Kelly was to ascertain if there were any aliens in the automobile and he promptly asked Kelly what he had in his car and the response was "just a little shine." Whereupon Lowery walked over and looked inside the car but seeing nothing he asked what was in the trunk. Upon receiving the same answer as was given in response to the prior inquiry, he ordered Kelly to open the trunk of his car. There the forty gallons of nontax-paid moonshine whiskey was found. Whereupon, Lowery informed Kelly that he was under arrest and the liquor was seized.
The apposite statute, Title 8 U.S.C.A. § 110, as amended August 7, 1946, reads in part as follows:
"Any employee of the Immigration and Naturalization Service authorized so to do under regulations prescribed by the Commissioner of Immigration and Naturalization with the approval of the Attorney General, shall have power without warrant (1) to arrest any alien who in his presence or view is entering or attempting to enter the...
To continue reading
Request your trial
-
Huguez v. United States, 21518.
...Thomas v. United States, 372 F.2d 252 (5th Cir. 1967); Marsh v. United States, 344 F.2d 317, 324 (5th Cir. 1965); Kelly v. United States, 197 F.2d 162 (5th Cir. 1952); Landau v. United States Attorney, 82 F.2d 285, 286 (2d Cir.), cert. denied, 298 U.S. 665, 56 S.Ct. 747, 80 L.Ed. 1389 (1936......
-
United States v. Peltier 8212 2000
...distance from any external boundary of the United States.' 8. United States v. Thompson, 475 F.2d 1359 (CA5 1973); Kelly v. United States, 197 F.2d 162 (CA5 1952); Roa-Rodriquez v. United States, 410 F.2d 1206 (CA10 1969); United States v. Miranda, 426 F.2d 283 (CA9 1970); United States v. ......
-
United States v. Almeida-Sanchez
...for narcotics (ibid.). 9 See notes 1 and 2. 10 Alexander v. United States, 362 F.2d 379, 381 (9th Cir. 1966). 11 Kelly v. United States, 197 F.2d 162, 164 (5th Cir. 1952). 12Cf. United States v. Weil, 432 F.2d 1320 (9th Cir. 1970); Alexander v. United States, supra, 362 F.2d at 381; Morales......
-
Amador-Gonzalez v. United States
...a "border" search under federal statutes permitting warrantless search of persons and vehicles entering this country. Kelly v. United States, 5 Cir. 1952, 197 F.2d 162; King v. United States, 5 Cir. 1958, 258 F.2d 754; Davis, Federal Searches and Seizures 368-373 (1964). Under 19 U.S.C. §§ ......