Kroska v. United States

• Decision Date: 25 May 1931
• Docket Number: No. 9002.,9002.
• Citation: 51 F.2d 330
• Parties: KROSKA v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F.2d 330 (1931)

KROSKA v. UNITED STATES.

No. 9002.

Circuit Court of Appeals, Eighth Circuit.

May 25, 1931.

Joseph P. Kolesky, of Minneapolis, Minn. (Richard Musenbrock, of Minneapolis, Minn., on the brief), for appellant.

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

Before STONE and GARDNER, Circuit Judges, and WOODROUGH, District Judge.

GARDNER, Circuit Judge.

The appellant, David M. Kroska, was convicted under an indictment which charged that on the 28th day of June, 1929, in and upon the main highway, from a point to the grand jurors unknown, to the farm known as the Peter Kroska farm, located about two and one-half miles north of Avon, a more particular description of which is to the grand jurors unknown, in the county of Stearns, in the state and district of Minnesota, the defendant did then and there willfully, unlawfully, and feloniously transport in an Oldsmobile coupé automobile intoxicating liquor, to wit, moonshine whisky, the exact amount thereof to the grand jurors being unknown. His demurrer to the indictment and his motion to suppress certain evidence claimed by him to have been obtained under an unlawful search of his automobile were overruled, and these rulings of the lower court are here urged as error. In support of the demurrer, it is urged that the indictment was not sufficiently definite and certain, and did not sufficiently apprise the defendant of the nature and cause of the accusation against him. No demand for a bill of particulars was made. The indictment set forth the facts constituting the essential elements of the offense, and if defendant felt any uncertainty as to what was intended thereby, or feared that he might be taken by surprise by the production of evidence for which he was unprepared, he should have applied for a bill of particulars. The indictment was good as against the demurrer interposed. Myers v. United States (C. C. A.) 15 F.(2d) 977; McMillan v. United States (C. C. A.) 27 F.(2d) 94; Swafford v. United States (C. C. A.) 25 F.(2d) 581; Rinker v. United States (C. C. A.) 151 F. 755; Cochran v. United States (C. C. A.) 41 F.(2d) 193.

Defendant's automobile was searched by two federal prohibition agents without a search warrant, certain intoxicating liquors found therein seized, and defendant was arrested without warrant in his home, the officer making the arrest having entered without invitation. A motion to suppress the use of any and all evidence obtained by virtue of the search and seizure by the federal prohibition agents of a certain Oldsmobile coupé, his person and his premises, was urged on the ground that the arrest and the search and seizure were violative of the Fourth Amendment to the Constitution of the United States, and, therefore, illegal. This motion, though filed and called to the court's attention before the trial began, was not then passed upon, but was considered at the close of the case, all testimony obtained by virtue of the search and seizure being received subject to the motion.

It appeared from the testimony of the prohibition agents who made the search and seizure that, while they were driving a Ford truck along a public highway in the vicinity of the Kroska farm, they observed a dark blue coupé automobile turn into the Kroska farm. The witness Rhoades testified:

"We proceeded on into the Kroska farmyard. I saw this coupe in the yard as I drove in. It was by the side door, on the west side of the house, about three or three and a half feet, possibly four feet, from the house. The west side of the house would be the right hand side when you face the house from the highway. No one was in the coupe as I approached it. The motor was not running. The doors of the coupe were closed. I made particular observation of this coupe, after I drove into the yard. I parked the truck about twenty feet at the rear of the coupe, got out of the truck and walked toward the rear door, or south of the Kroska home. I walked towards the coupe and looked at it as I approached it. I noticed the rear deck of the coupe was raised up about three inches. I could see a part of a keg, and I then stooped over, and there was a ten gallon keg there. I could see that opening, and the keg, while I approached the car. After I stooped over and observed that it was a ten gallon keg, I called Agent Peterson and told him to watch the car, and I immediately went into the rear door of the farm home."

The witness then testified that he entered the grade basement door of the house and passed through several rooms of the house, going upstairs, where he found the defendant and placed him under arrest. Continuing, the witness testified:

"When I returned downstairs the car was not in the same condition as when I saw it before I went in. Agent Peterson had the rear deck open, and was examining the keg. I made an examination of these kegs and found that they contained white moonshine whiskey."

On being recalled, the witness testified, among other things, as follows:

"Q. Mr. Rhoades, going back to the time that you drove into the yard, as you approached this Oldsmobile coupe, about which you have testified, did you detect any odor about the yard there? A. Well, I stooped over about four feet from the car, and I detected a strong odor of moonshine whiskey, coming from the rear compartment of the coupe."

On cross-examination, the witness further testified:

"The first time that I saw this car — this coupe car in question here, was when I was driving on this road, and saw it turn — saw it in the Kroska yard about three or four city blocks away from me. After I saw the car I proceeded into the Kroska farmyard. The car was moving along. I saw it from the rear. I kept right on going. * * * The coupe car when I first saw it was about two hundred and eighty-seven feet from the house. It then turned and went around a bend, and I lost sight of it, but we kept right on going. I had noticed that car there not very long, about ten seconds. The car was moving quite fast. Then we got into the yard. In the yard I saw a Ford truck parked near the garage, an Oldsmobile coupe parked at the side entrance of the house, and a Ford touring car parked between the house and the garage, slightly to the side of the road going into the yard. * * * After I drove into the yard, I got out of the truck, started towards the rear door of the Kroska home. I stopped my truck from the Kroska home about four or five feet, right out almost in front of it — that is, to the side. I walked around the right hand side — the right hand side of the house — and as I approached this car I noticed a keg, the rear deck partly open, and I stooped over, and at that time I received an odor of moonshine whiskey, and I called on Mr. Peterson, who guarded the car, and I went into the Kroska home."

The testimony of the other prohibition agent was substantially the same as that of Rhoades. Neither of the officers saw defendant until Rhoades arrested him in the house. The record is absolutely barren of any evidence indicating why the prohibition agents went to defendant's farm. There is nothing to indicate that they had any reason to suspect that defendant had on his premises any intoxicating liquor, so that the only evidence forming the basis of probable cause for the search which they made was such as was secured by them after they had entered upon the private premises of defendant. The car was parked within three or four feet of his home, and the agents, when they observed anything to arouse their suspicion, with reference to the contents of the car, were in defendant's yard, within a few feet of his home. So far as appears from this record, they were trespassers. Section 40, title 27, USCA, provides that:

"When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law."

In construing this statute, the Supreme Court of the United States, in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 287, 69 L. Ed. 543, 39 A. L. R. 790, said:

"The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law."

The government relies upon this statute as authorizing the search and seizure in this case, while defendant asserts that they are violative of the Fourth Amendment to the Constitution, and that the admission of the evidence so secured violated the rights guaranteed him by the Fifth Amendment to the Constitution. In the Carroll Case, it was decided that federal prohibition officers had the right to search an automobile on the public highway without warrant, when the officers had probable cause to believe such car was offending against the National Prohibition Act. Chief Justice Taft, in delivering the opinion, said, however, that:

"It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search."

If the search and seizure were violative of the Fourth Amendment to the Constitution, then the evidence secured thereby should have been suppressed, even though it was obtained from an automobile. An unjustified search and seizure violates the Fourth Amendment, whatever the character of the property seized, whether it was in the home, in an office, or in an automobile, and whether taken by force, by stealth, or by fraud. The Fourth Amendment protects...