Lowrey v. United States, 13444.

• Decision Date: 16 June 1947
• Docket Number: No. 13444.,13444.
• Citation: 161 F.2d 30
• Parties: LOWREY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F.2d 30 (1947)

LOWREY v. UNITED STATES.

No. 13444.

Circuit Court of Appeals, Eighth Circuit.

April 28, 1947.

Writ of Certiorari Denied June 16, 1947.

C. Floyd Huff, Jr., of Hot Springs, Ark., and Drew Bowers, of Pocahontas, Ark., for appellant.

R. S. Wilson, U. S. Atty., of Van Buren, Ark., and David R. Boatright, Asst. U. S. Atty., of Fort Smith, Ark. (Charles A. Beasley, Jr., Asst. U. S. Atty., of Fort Smith, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

Writ of Certiorari Denied June 16, 1947. See 67 S.Ct. 1737.

JOHNSEN, Circuit Judge.

Appellant was convicted, on a jury-waived trial, (1) of possessing 91 gallons of distilled spirits in containers (8 ten-gallon kegs and 11 one-gallon jugs) to which no stamps had been affixed, "denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits," as required by 26 U.S.C.A.Int. Rev.Code, § 2803, and (2) of concealing distilled spirits (the 91 gallons of whisky) removed from an unknown distillery, without payment of liquor taxes, to a place other than an internal-revenue bonded warehouse, in violation of 26 U.S.C.A.Int. Rev.Code, § 2913. He was given a general sentence of three years in prison and a fine of $1,000.

The principal contention urged for reversal is that the trial court erred in denying appellant's motion, made before trial or hearing, to quash the search warrant, under which the contraband liquor was seized, and to suppress the evidence thus obtained, which was used on the trial to convict. The basis of the contention is that the affidavit was insufficient to permit issuance of the search warrant, because it did not contain a particular or special description of the property which it was desired to seize.

The affidavit was one executed by an Alcohol Tax Unit Investigator named Cummings. It was on a printed form bearing the caption "Affidavit of Search Warrant (Standard Form)." The form contained a recitation, "That the facts tending to establish the grounds of this application and the probable cause of affiant's believing that such facts exist are as follows:" Here was inserted a statement by Cummings that on the day preceding the execution of the affidavit he had watched a taxicab containing two negroes drive up to appellant's home; that he observed one of the negroes carry from the house a paper carton and place it in the trunk compartment of the taxicab; that the negroes immediately thereafter got back in the taxicab and drove away; that he and another Alcohol Tax Unit Investigator named Gibson kept the taxicab under constant observation until they stopped it and searched it; that in its trunk compartment they found a paper carton, in which there were 6 one-gallon jugs "containing non-tax paid distilled spirits," which was the only carton in the taxicab; and that the taxicab had not made any stop from the time it left appellant's home until it was halted by Cummings and Gibson and searched.

The form contained another recitation, "That he the affiant has good reason to believe and does believe that in and upon certain premises here was inserted a description showing the location of appellant's home and covering the house, the garage and the other outbuildings on the premises there have been and now are located and concealed certain property used as the means of committing a felony in violation of the Statutes of the United States, to-wit:" — the space following this recitation being left blank in the affidavit. The form also contained a general prayer, "that a Search Warrant may issue authorizing a search of the aforesaid premises in the manner provided by law."

The affidavit thus set out as its principal foundational fact that 6 one-gallon jugs of "non-tax paid distilled spirits" had been seen being carried from appellant's house and taken away by two negroes in a taxicab. It further stated that Cummings believed that the house and outbuildings contained "certain property used as the means of committing a felony in violation of the Statutes of the United States." It requested a search warrant authorizing a search of the premises in the manner provided by law. The possession of unstamped distilled spirits and the concealment of non-tax paid distilled spirits, such as the affidavit showed had been located on the premises, constituted felonies under 26 U.S.C.A.Int.Rev. Code, §§ 2803, 2913. The only import which the contents of the affidavit reasonably could have in the situation, it seems to us, was to indicate that Cummings believed (and the basis for his belief) that there were non-tax paid distilled spirits on appellant's premises and that this was what he desired to search for and seize. The warrant issued by the commissioner on the affidavit authorized a search of the premises for "non tax paid distilled spirits" possessed and concealed in violation of "Section 2803 and 2913 of the Internal Revenue Code."

Appellant does not contend that the search warrant itself was insufficient in either form or content. His argument, as heretofore indicated, simply is that Cummings did not specifically or directly state in the affidavit that what he desired to search for was "non-tax paid distilled spirits," and that the affidavit therefore must be held to be insufficient. He says that the Fourth Amendment expressly requires that the affidavit set out a particular or special description of the property to be seized.

The second clause of the Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Italics ours.) From the subject matter of the provision, the punctuation and the context, the italicized language would appear to be a prescription for the search warrant, rather than one specifically or directly for the affidavit, as appellant contends. Cf. United States v. Wroblewski, 7 Cir., 105 F.2d 444, 446. The only part of the provision expressly dealing with the affidavit is the preceding phrase, "but upon probable cause, supported by Oath or affirmation."

It cannot therefore be said that the Fourth Amendment in terms has made any prescription for the form or content of the affidavit for a search warrant other than that the affidavit or affidavits must show probable cause for issuance of the warrant. And, other than that the affidavit must establish the grounds for issuing the warrant, there also is no express prescription with respect to it in Rule 41, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, which now governs the issuance of search warrants (except in the case of some inconsistent statute "regulating search, seizure and the issuance * * * of search warrants in circumstances for which special provision is made.") Rule 41(c) provides: "A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched."¹

Probable cause for the issuance of a search warrant, on the grounds authorized in Rule 41(b), is then the only prescription for the affidavit under the Fourth Amendment and the Rules of Criminal Procedure. The lack of prescription for any particular or special statement in the affidavit would seem reasonably, as in the case of a pleading, to have significance on the formality required in setting out the information to show probable cause. Of course, probable cause for the issuance of a search warrant necessarily implies, not simply that there are reasonable grounds to believe that some violation of law exists, but that there is a violation in respect to some property located on some premises or on some person — each of which can be unmistakably identified, so as to be capable of being particularly described in the warrant, from the information in the affidavit. Cf. Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032.

But in order to make the property to be seized or the place or person to be searched identifiable as a basis of probable cause and warrant information, it can hardly soundly be argued that there necessarily must be a special sentence of separate or repetitive description in the affidavit. In testing the sufficiency of the affidavit, it is entitled to be read as a whole. It would therefore seem to be enough that the affidavit contain within its four corners the information necessary to justify and to enable the search warrant to be issued, and that its statements and recitations unequivocally establish, whether directly or by inescapable import, the significance and relationship of the information shown.

In the present case, Cummings's statement that he had seen 6 one-gallon jugs of "non-tax paid distilled spirits" being carried from appellant's house and taken away by two negroes in a taxicab,...