Lambert v. United States

• Decision Date: 07 August 1922
• Docket Number: 3803.
• Citation: 282 F. 413
• Parties: LAMBERT v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F. 413

LAMBERT v. UNITED STATES.

No. 3803.

United States Court of Appeals, Ninth Circuit.

August 7, 1922

M. B Moore, of Reno, Nev., for plaintiff in error.

William Woodburn, U.S. Atty., and M. A. Diskin, Asst. U.S. Atty both of Reno, Nev.

Before ROSS, MORROW, and HUNT, Circuit Judges.

ROSS Circuit Judge.

The plaintiff in error contends that he was convicted and sentenced to pay a fine of $500 upon evidence improperly admitted against him in violation of the provisions of the Fourth and Fifth Amendments of the Constitution of the United States; he having objected to such evidence and excepted to the rulings of the court admitting it. The charge against him was, in substance, that he unlawfully and knowingly transported 16 1/2 bottles of intoxicating liquor containing one-half of 1 per cent. or more of alcohol by volume, fit for use for beverage purposes, in an automobile in and on the streets of Reno, Nev., and there having the same in his possession.

It appears from the record that the National Prohibition Director of the District of Nevada, J. P. Donnelley, and another federal officer connected with the enforcement of prohibition in that district, Jonathan Payne, had their attention called to the automobile by a man named Edison whose testimony was introduced in the case, and upon whose information Donnelley and Payne acted in going to the automobile without any search warrant and without any warrant for the arrest of the plaintiff in error-- the automobile at the time having been parked by the plaintiff in error opposite the Grand Buffet and Grand Cafe, two business houses in Reno, and while the plaintiff in error was in one of those places. Donnelley went to the machine, and, looking in it found a package covered with a canvas, which afterwards proved to be a box nailed up, and also discovered a quart bottle full of reddish liquid. The two officers then stepped off about 50 feet and waited until the plaintiff in error came over and got into his automobile and started, when they jumped onto the running board, telling him that they were federal officers, and telling him to drive to the police station, which he did.

The witness Edison, upon whose information the officers acted, testified in effect, among other things, that he saw the plaintiff in error, Lambert, before the latter reached Reno, opposite a roadhouse about 30 miles from Reno, and there saw Lambert put a bottle which looked like a quart bottle into his car, which bottle looked as if it had whisky in it, the color being that of whisky; that the car also had a big box in it, and had in it also some old clothes or trash of some kind; that the box was covered up. It appears that upon subsequent examination by the officers the box, as well as the single bottle, was found to contain whisky.

The witness Edison further testified that he took the same road to Reno that Lambert did, and, so far as pertinent to the present inquiry, continued as follows:

'I drove up pretty close behind him, and then he went on and met me again, and I didn't see him again until I got into Reno. I drove right along up beside of his car; his car was parked on Second street. * * * It was just about in front of the Grand, a little up above from the Grand; in front of the Grand Cafe, or Grand Saloon, it is called. * * * I walked alongside of it and looked in it. * * * I seen the bottle that he put in the car. * * * It looked like it had whisky in it. * * * The color was the color of whisky. * * *

'Q. Where you saw this bottle in the car, was there any covering over that portion of the car? A. Not any more than the car had a big box in it, and had some old clothes, trash of some kind, in it.

'Q. Could you see the box plainly? A. I could the end of it.

'Q. How about the top of the box? A. It was covered up.

'Q. What did you do then, Mr. Edison? A. I went into the saloon.

'Q. What saloon? A. The Grand.

'Q. The Grand Buffet? A. Yes.

'Q. How far away from the Grand Buffet was this car, approximately? A. About as far as across this room, probably 50 feet-- 40 or 50.

'Q. About 50 feet? A. Somewheres there.

'Q. You have been in the Grand Buffet a number of times? A. Yes.

'Q. What is it, a soft drink parlor? A. A soft drink parlor.

'Q. Did you see the defendant in the Grand Buffet? A. I did

'Q. At that time? A. I did.

'Q. How long did you remain there? A. Just walked in, and looked around. and went back out again.

'Q. Where did you go then? A. Over to Mr. Donnelley's office.

'Q. Thereafter did you come back to the Grand Buffet? A. I did.

'Q. Did you see the car there at that time? A. The car was gone at that time.

'Q. Then where did you go? A. I took Mr. Payne in my car and drove around the town, looking, trying to locate the car.

'Q. Did you thereafter see the defendant? A. I did after that; yes.

'Q. Where did you see him? A. In the Grand Buffet.

'Q. Was he talking to any one in the Grand Buffet? A. He was.

'Q. Who was he talking to? A. Ed Regan.

'Q. Who is Ed Regan? A. One of the proprietors there, I understand.

'Q. Did you hear any conversation the defendant had with Regan at that time? A. I did.

'Q. What was said? A. I heard Mr. Regan tell him that he could not and would not handle that kind of stuff.

'Q. Was anything said about a price? A. I heard him say he could have it for twenty.

'Q. In response to that Mr. Regan said he could not handle it? A. Mr. Regan said he could not handle that kind of stuff.

'Q. Did you thereafter see the automobile which you have described as occupied by the defendant in front of the Grand Buffet? A. I seen the car after that, but not in front of the Grand Buffet.

'Q. Where did you see it? A. It was over on the other side of the street.

'Q. Did you see Capt. Donnelley and Mr. Payne there? A. I did.

'Q. What did the defendant do, if anything, in reference to this car at that time? A. He got in it and backed it away from the sidewalk, backed it right out in front, and started down the street, and Mr. Donnelley got up on the car and talked to him. I came up on the other side, and Mr. Payne got up on the same side of the car that I was on.

'Q. Where did the car go? A, We rode around with him to the police station.'

It is conceded by counsel for the government that the search of one's person, his home, his papers, or other effects, without a valid warrant is illegal, and that evidence so obtained cannot be used in support of a criminal charge against him; but it is insisted that this presents no such case.

Section 26 of title 2 of the National Prohibition Act (41 Stat. 305, 315) declares, among other things:

'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. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat air or water craft, or any other conveyance, and shall arrest any person in charge thereof. Such officer shall at once proceed against the person arrested under the provisions of this title in any court having competent jurisdiction; but the said vehicle or conveyance shall be returned to the owner upon execution by him or of a good and valid bond, with sufficient sureties, in a sum double the value of the property, which said bond shall be approved by said officer and shall be conditioned to return said property to the custody of said officer on the day of trial to...