Marsh v. United States, 112.

• Citation: 29 F.2d 172
• Decision Date: 12 November 1928
• Docket Number: No. 112.,112.
• Parties: MARSH v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

29 F.2d 172 (1928)

MARSH v. UNITED STATES.

No. 112.

Circuit Court of Appeals, Second Circuit.

November 12, 1928.

Irving K. Baxter, of Utica, N. Y., for appellant.

Richard H. Templeton, U. S. Atty., and Ralph A. Lehr, both of Buffalo, N. Y., for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

It was held in Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, that the search of an automobile by prohibition officers under section 26 of the National Prohibition Law (27 USCA § 40) was independent of the power to arrest and might depend upon that section alone. Gambino v. U. S., 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381, held that a state trooper was not within the terms of section 26, though whether there was authority elsewhere which authorized a search, it left open. We held in U. S. v. Jankowski (C. C. A.) 28 F.(2d) 800, decided October 29, 1928, that the search before us, made by a trooper, was in fact reasonable; but the point was not raised whether such an officer had any power to search at all, the offense being under a federal law. That is the question we have now to determine.

First, however, we must decide whether the search at bar was reasonable, assuming that the trooper had power to make it, and in that we must have regard to the fourth amendment, which controls, even though the officer gets his authority under the state law. The effect of Gambino v. U. S. is that when, under such circumstances, the federal authorities use the evidence in a federal prosecution, they become subject to all the limitations of the Federal Constitution, regardless of whether state prosecutors might be similarly limited by the State Constitution. Carroll v. U. S. held that the pursuit and overtaking of a motorcar on mere suspicion of its containing liquors was an unreasonable search. We are therefore first to determine whether the trooper overhauled the car for violation of a traffic ordinance. Upon that issue we see no reason to disturb the finding of the District Judge, who alone was charged, as we held in U. S. v. Jankowski, with the duty of deciding the facts on which the competency of the evidence depended. At the same time we must confess to considerable doubt whether, had the matter been before us in the first instance, we should have come to the same conclusion. The circumstances made the trooper's story somewhat doubtful, and an easy complaisance in any plausible tale may deprive defendants of their constitutional rights. This caution we are not, however, ourselves in a position to exercise, because, except in plain cases, we cannot tell from the cold record where the truth lies. For the future we take this occasion to press upon the District Judges that they search the testimony in such cases with care, remembering that the protection of defendants must in most cases rest finally with them.

Assuming, however, that the trooper stopped the car for the violation of a local ordinance, and either saw the liquors or was told of them by the defendant, we have yet to determine whether his seizure of them was lawful. This, as we view it, is a question only of state law, unless we have recourse to some common law of federal criminal procedure, if any there be. Logan v. U. S., 144 U. S. 263, 303, 12 S. Ct. 617, 36 L. Ed. 429; Rosen v. U. S., 245 U. S. 467, 469, 470, 38 S. Ct. 148, 62 L. Ed. 406. We think that the state law authorized what he did, and find it unnecessary to consider the alternative. The search may be regarded as an incident to a lawful arrest, or as having an independent justification. Under the law of New York the person of an arrested offender may be searched, People v. Chiagles, 237 N. Y. 193, 142 N. E. 583, 32 A. L. R. 676; and we see no reason to suppose that the power would not extend to chattels found within his immediate control, as it has been under the fourth amendment, Agnello v. U. S., 269 U. S. 20, 30, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Marron v. U. S., 275 U. S. 192, 199, 48 S. Ct. 74, 72 L. Ed. 231.

The only thing left is whether the trooper had authority by virtue of the state law to arrest the defendant for a federal misdemeanor, of whose commission in his presence he had lawfully obtained the evidence. Section 177 of the New York Code of Criminal Procedure provides that "a peace officer may, without a warrant, arrest a person, * * * for a crime, committed or attempted in his presence," thus including all misdemeanors, whether or not they be breaches of the peace. Whether the power so conferred includes federal crimes has never, so far as we can find, been directly ruled by the state courts. On the other hand, it has been a universal practice of police officers in New York to arrest for federal crimes, regardless of whether they are felonies or misdemeanors, and to bring the offenders before a commissioner. The distinction between the two classes is irrelevant, unless we assume that there is a common law of federal criminal procedure, fixed as of 1789. At any rate, no such distinction has been made, and the practice is strong evidence of the understanding of the state officials as to the meaning of the state law. Moreover, Governor Smith in his veto of the Mullin-Gage Law, unequivocally declared that it was the duty of all local officers to enforce the National Prohibition Law, a declaration relied upon in Gambino v. U. S. In the absence of some holding to the contrary, we see no reason not to accept the practice and the declaration as evidence of the meaning of the statute.

Moreover, we should be disposed a priori so to understand it. Section 2 of article 6 of the Constitution makes all laws of the United States the supreme law of the land, and the National Prohibition Law is as...