Marron v. United States

• Decision Date: 05 October 1925
• Docket Number: No. 4523.,4523.
• Citation: 8 F.2d 251
• Parties: MARRON et al. v. UNITED STATES. GORHAM v. SAME. KISSANE v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.2d 251 (1925)

MARRON et al. v. UNITED STATES.^*

GORHAM v. SAME.

KISSANE v. SAME.

No. 4523.

Circuit Court of Appeals, Ninth Circuit.

October 5, 1925.

George Hawkins, Walter Brand, Joseph E. Marron, George Birdsall, Charles Mahoney, Patrick Kissane, and Joseph Gorham were indicted for conspiracy to violate the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). Hawkins was never apprehended, and Brand was acquitted. The other defendants were convicted, and Marron, Birdsall, Kissane, and Gorham have sued out writs of error to review the judgment of conviction. For convenience, the parties indicted will be referred to as the defendants.

Hugh L. Smith and Charles J. Wiseman, both of San Francisco, Cal., for plaintiffs in error Marron and Birdsall.

William A. Kelly, of San Francisco, Cal. (Devlin & Devlin, of Sacramento, Cal., of counsel), for plaintiff in error Gorham.

Joseph L. Taaffee, of San Francisco, Cal., for plaintiff in error Kissane.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

McCAMANT, Circuit Judge.

On the 30th of March, 1922, the defendant Hawkins rented the upstairs flat at 1249 Polk street, San Francisco. He used the premises for the sale of intoxicating liquors, and on the 26th of July, 1923, the defendant Walter Brand succeeded to the business. The jury must have found from the evidence that Brand conducted the place until the latter part of October, 1923, on his own account, and that he then turned the business over to the defendant Marron. The evidence indicates that Marron operated the place as a saloon from about November 1, 1923, to October 3, 1924; that the defendants Birdsall and Mahoney were in charge from day to day serving drinks to those who came.

The defendant Gorham was a sergeant of police and the defendant Kissane a police officer. The government's contention is that they became parties to the conspiracy by the corrupt receipt of money and by securing the other defendants against interference by the police.

Brand operated under the Hawkins lease, but on the 2d of November, 1923, a new lease was executed to the defendant Marron, which remained in effect at least as late as October 3, 1924.

On the 22d of September, 1924, a prohibition agent purchased drinks at this place. An affidavit to this effect was filed with a United States commissioner, who issued a search warrant. The validity of this warrant is not attacked. It directed the search of the entire second floor at 1249 Polk street, including lockers, closets, and cupboards. This warrant was issued October 1, 1924, and executed on the following day. The officers found the defendant Birdsall in charge. The search disclosed a considerable quantity of liquor which was seized and found to contain more than one-half of 1 per cent. of alcohol. Birdsall was arrested. The officers found in a closet in the front room 16 pint bottles of champagne and a gray ledger, which they also seized. The evidence showed that from page 34 on the great bulk of the writing in this ledger was that of the defendant Marron. The ledger purported to be a record of the business carried on at 1249 Polk street. It showed the gross receipts and expenses from day to day, also an inventory of the liquors on hand on certain dates. The expenses included purchases of oranges, lemons, ice, Shasta water, seltzer, and other articles useful as barroom appurtenances. The book showed a large number of payments to Kissane of $5 each. There were also records of payments of larger sums to the "police," and a number of entries entitled "gift." On page 92 there was an item, "Gorham 60," with lines run through it. This item bore date July 26, 1924; on the following page under date of July 28 there was an item "Gorman 60." There was also on page 93, under the heading "July money out," an item "Joe Gorham 50." This item also had lines drawn through it. There were a number of other accounts entitled "Money Out" in the book, and quite a good many of the items in these accounts had lines drawn through them. The record purported to show that Mahoney was paid a salary and that the profits were divided between Marron and Birdsall. There were accounts showing the sale of liquors by the bottle and in some cases the names of the purchasers were given.

On the 22d of November, 1924, the defendant Birdsall filed a petition praying for the return of this ledger to him, on the ground that the search warrant executed on October 2d authorized the seizure of nothing except liquors. All of the defendants objected to the reception of this ledger in evidence. These objections were overruled, and the action of the court in this respect is the error chiefly relied upon.

The government admits that the search warrant gave the officers no right to seize the ledger, inasmuch as the warrant mentioned nothing except liquors. The seizure of the ledger took place when the defendant Birdsall was arrested. In connection with the arrest, it is contended that the officers had authority to search the premises and seize anything of evidentiary value which they found. The evidence of the officers is to the effect that no one lived in the flat which was searched. It was used wholly for business purposes.

When the officers entered on the premises on the 2d of October they found the defendant Birdsall in the unlawful possession of liquor. There were found a cash register, slot machines, glasses, tables, and other indications that a business was being conducted when the liquor was seized. This business has been declared a public nuisance. The possession of liquor and the maintenance of a nuisance are continuing offenses. The defendant Birdsall was committing these misdemeanors in the presence of the officers.

In Ex parte Morrill (C. C.) 35 F. 261, 267, Judge Deady says:

"A crime is committed in the presence of the officer when the facts and circumstances occurring within his observation, in connection with what, under the circumstances, may be considered as common knowledge, give him probable cause to believe, or reasonable ground to suspect, that such is the case. It is not necessary, therefore, that the officer should be an eye or an ear witness of every fact and circumstance involved in the charge, or necessary to the commission of the crime."

In U. S. v. Stafford (D. C.) 296 F. 702, 703, 706, the above authority is followed. The court says:

"In every case where there is some evidence tending to show that an offense is being committed, and it is such as to cause the officer sincerely to believe that such is the case, and it turns out that his belief is correct, the arrest and subsequent search and seizure are legal."

Although the officers who seized the gray ledger had no warrant for the arrest of Birdsall, they had authority to arrest him as guilty of a misdemeanor committed in their presence. Vachina v. U. S. (C. C. A.) 283 F. 35; Agnello v. U. S. (C. C. A.) 290 F. 671, 679. Such an arrest is within the authority committed to prohibition officers. Lambert v. U. S. (C. C. A.) 282 F. 413, 417; U. S. v. Rembert (D. C.) 284 F. 996; McBride v. U. S. (C. C. A.) 284 F. 416, 418; Peterson v. U. S. (C. C. A.) 297 F. 1002. As incident to a lawful arrest, the officer may search the prisoner and seize evidence of his guilt. U. S. v. Wilson (C. C.) 163 F. 338; U. S. v. Murphy (D. C.) 264 F. 842, 844, 845; Vachina v. U. S. (C. C. A.) 283 F. 35; Baron v. U. S. (C. C. A.) 286 F. 822, 824; Donegan v. U. S. (C. C. A.) 287 F. 641, 649; Agnello v. U. S. (C. C. A.) 290 F. 671, 684; Browne v. U. S. (C. C. A.) 290 F. 870, 875; U. S. v. Stafford (D. C.) 296 F. 702, 703; Sayers v. U. S. (C. C. A.) 2 F.(2d) 146.

The property and papers of the defendant are no more sacred than his person. The right of search extends to the premises in control of the defendant arrested, and authorizes the seizure of that which is evidentiary of the crime. U. S. v. Wilson (C. C.) 163 F. 338; Agnello v. U. S. (C. C. A.) 290 F. 671, 679; U. S. v. Vatune (D. C.) 292 F. 497, 500; Swan v. U. S., 54 App. D. C. 100, 295 F. 921, 922; Sayers v. U. S., 2 F.(2d) 146.

The search was not unreasonable, and it did not violate the rights of Birdsall and Marron under the Fourth Amendment.

It is strongly contended by Marron and Birdsall that, even if the ledger was properly seized, it is not admissible in evidence over their objection, because of the provision in the Fifth Amendment to the federal Constitution that "no person * * * shall be compelled in any criminal case to be a witness against himself." The argument is that the admission in evidence of this book kept by Marron and Birdsall is equivalent to calling them to the stand and requiring them to testify for the government. In support of this contention, these defendants rely on Hagen v. U. S. (C. C. A.) 4 F.(2d) 801, a recent decision of this court, and on Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; and Amos v. U. S., 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654. In the Hagen Case, this court held the search warrant invalid for lack of a sufficient affidavit to support it. The Weeks, Silverthorne, and Amos Cases involved searches without any warrant whatever. In all of these cases the seizures were held to be improper, and the government was denied the right to use the evidence unlawfully seized. These authorities do not support the present contention that because the damaging entries in the gray ledger were written by Marron, they cannot be received in evidence over his objection.

Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, was a forfeiture proceeding based on alleged violation of the customs laws. In...