McCarthy v. United States, 16021.
| Decision Date | 04 March 1959 |
| Docket Number | No. 16021.,16021. |
| Citation | 264 F.2d 473 |
| Parties | Harry Patrick McCARTHY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Irvine E. Ungerman, Tulsa, Okl. (Manuel Grabel, Maynard I. Ungerman, William Leiter and R. James Unruh, Tulsa, Okl., on the brief), for appellant.
O. J. Taylor, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief), for appellee.
Before JOHNSEN, VAN OOSTERHOUT and MATTHES, Circuit Judges.
This case, like No. 16,020, Smith v. United States, 264 F.2d 469, decided concurrently herewith, involves the legality of a search and seizure, in its use to convict appellant, under 18 U.S.C. § 1262, of having unlawfully attempted to transport intoxicating liquor into the "dry" State of Oklahoma. The sufficiency of the evidence to support the conviction, if the search-and-seizure was valid, is not otherwise challenged. The trial was to the same judge and the same punishment was meted out as in the Smith case.
Two weeks after the events of the Smith case, in another surveillance made by Alcohol Tax Unit agents of the Ozark Tobacco and Liquor Store, they observed appellant's car making a visitation to the Liquor Store, with characterizing elements such as had been connected with the unlawful ventures of Smith and other Oklahoma liquor haulers whom the agents had intercepted.
There was the unconventional running of the car into the closed garage for a limited period; the sudden swinging open of the doors and exiting of the car after being concealed from view long enough to have permitted its loading; the proceeding of the car toward the Oklahoma highway; and the indication of carried cargo, from (as described by one agent) the car being "low in the rear" or "hanging a little bit", or (as testified by another) "it appeared to be heavily laden".
These elements, with their contextual significance from the Liquor Store's reputation as a supplier of Oklahoma haulers and from the agents' direct experience in other cases, were supplemented in the present situation by the circumstance that, after appellant had proceeded a quarter of a mile beyond the Liquor Store, he left the highway and traveled for some distance on a graveled road before he cut back onto the highway again. In relation to the fact that the car bore a Missouri license plate, this turning onto a local road could allayingly impress one who had observed appellant's visit to the Liquor Store that he was merely a Missourian and was without interstate destination. Similarly, one seeing only his entry from the graveled road onto the highway, without knowledge of his preceding visit to the Liquor Store, would ordinarily have no reason to attach any significance to his turning toward the Oklahoma...
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