Love v. United States, 5763.
| Decision Date | 09 October 1948 |
| Docket Number | No. 5763.,5763. |
| Citation | 170 F.2d 32 |
| Parties | LOVE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
T. R. Bryan, of Wilkesboro, N. C., for appellant.
John D. McConnell, Asst. U. S. Atty. of Southern Pines, N. C. (Bryce R. Holt, U. S. Atty., of Greensboro, N. C., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from a conviction and sentence under an indictment charging the operation of an illicit distillery in violation of the internal revenue laws. The question raised by the appeal relates to the refusal of the trial court to supress evidence. The facts are that federal officers entered the home of the appellant while searching for one Foster, for whom they held a warrant of arrest on a criminal charge. They had information that Foster was either at the home of his mother or at the home of appellant about 400 yards away. After searching for him at his mother's home and failing to find him there, they went to the home of appellant which they entered for the purpose of making search, after notifying appellant of their purpose and of the fact that they had a warrant for the arrest of Foster. Appellant denied that Foster was within his home but made no objection to the search. In the course of the search for Foster, the officers discovered a distillery in operation. It was the evidence of this discovery that appellant moved to suppress. The trial court found as a fact that the officers did not enter the house "for the purpose of searching for or finding the commission of a crime but entered in the bona fide belief that Ray Foster, a fugitive, was taking refuge in that house, and discovered the violation while making search for the whereabouts of Ray Foster".
The motion to suppress the evidence was properly denied. The officers were rightfully in the house (State v. Mooring, 115 N.C. 709, 20 S.E. 182) and the discovery of the unlawful still was incidental to lawful search for Foster. The rule applicable was stated by this Court in Paper v. United States, 4 Cir., 53 F.2d 184 as follows: "The purpose of the Fourth Amendment was to prevent the use of `governmental force' to search a man's house, his person, his papers or his effects and to prevent their seizure against his will. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376. Most cases of search in violation of this constitutional provision involve the element of trespass, i....
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