Martin v. United States, No. 6109.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: PARKER, , and SOPER, Circuit , and GILLIAM
• Citation: 183 F.2d 436
• Parties: MARTIN v. UNITED STATES.
• Docket Number: No. 6109.
• Decision Date: 24 July 1950

183 F.2d 436 (1950)

MARTIN
v.
UNITED STATES.

No. 6109.

United States Court of Appeals Fourth Circuit.

Argued June 27, 1950.

Decided July 24, 1950.

183 F.2d 437

C. Carter Lee, Rocky Mount, Va., for appellant.

R. Roy Rush, Asst. U. S. Atty., Roanoke, Va. (Howard C. Gilmer, Jr., U. S. Atty., Roanoke, Va., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER, Circuit Judges, and GILLIAM, District Judge.

SOPER, Circuit Judge.

This appeal was taken from an order of the District Court whereby a Ford automobile belonging to Otis Mason Martin was forfeited under §§ 3321 and 3720 of the Internal Revenue Code, 26 U.S.C.A. §§ 3321, 3720, upon proof that on January 20, 1950 it had been used by Martin with intent to defraud the United States in the removal, deposit and concealment of distilled spirits upon which the tax due the United States had not been paid. The validity of the order is attacked on the ground that the evidence offered to justify the seizure and confiscation of the car was procured in violation of the Fourth Amendment to the Federal Constitution by an unreasonable search without a warrant of Martin's garage which was situated within 60 feet of his residence on the same lot of ground in Roanoke, Virginia. The investigating officer who searched the garage and seized the car and illicit liquor was William Fansler, a probation officer, to whose custody Martin was committed on July 7, 1947, after he had been convicted of violating the federal laws relating to distilled spirits and released on probation by the District Court. It was conceded at the trial that the automobile was properly forfeited if the search was lawful, and the evidence secured under the circumstances now to be related was legally admissible.

Martin had served two sentences imposed by the District Court — one of 30 months in 1939 and one of 6 months in 1942, in Atlanta Penitentiary, for violation of the federal liquor laws. He was convicted again in 1947 for a similar offense and, notwithstanding his previous record, was released on probation because he had had a good record in the armed services in the

183 F.2d 438

Second World War. After he was released on probation, he operated a filling station for a while and later became an automobile mechanic. In 1948, however, the probation officer again received reports that he was involved in illicit liquor operations. A large illicit distillery in Rock-bridge County, Virginia, was discovered in September, 1948. Two young men were arrested for operating it and Martin by his own admission paid their fines. Fansler learned of the violation from federal and state officers; and Martin himself told Fansler that although he had never visited the distillery, he had put up money for the operation, had gotten whisky from it and had stored some of it beneath the floor of his garage in which a trap door had been concealed. This matter was duly reported to the court and the probation officer was instructed to warn Martin and keep a watch upon his activities

In the early part of 1949, Fansler noticed that Martin was driving a Ford car with a racing motor. He sold this car and bought another one which was wrecked in July, 1949 on a road near Mt. Airy, Virginia, with 96 gallons of illicit whisky. Fansler was told that two men escaped from the car and that in the glove compartment there were found an electric light bill in Martin's name and a driving permit in the name of Gladys Martin. The car was registered in another name.

In September, 1949 Fansler learned that Martin had bought a 1940 Ford car and had built it up and put in a racing motor and other attachments. He was then working at a filling station but he frequently went away at night in the car into the country and sometimes did not return home until 4, 5 or 6 o'clock in the morning. In December, 1949 Fansler examined the car on the street near Martin's home and found that it was equipped with a heavy load spring such as is found on cars used in the transportation of illicit liquor but is not desirable for ordinary travel. Fansler also observed that Martin was keeping company and driving at night with one Cauley who was reputed to be a liquor...