McIntire v. United States, 4948.

• Decision Date: 28 February 1955
• Docket Number: No. 4948.,4948.
• Citation: 217 F.2d 663
• Parties: Percy McINTIRE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

217 F.2d 663 (1954)

Percy McINTIRE, Appellant, v. UNITED STATES of America, Appellee.

No. 4948.

United States Court of Appeals, Tenth Circuit.

December 13, 1954.

Rehearing Denied December 27, 1954.

Writ of Certiorari Denied February 28, 1955.

Douglas Garrett, Muskogee, Okl. (Claude Garrett and Cleon A. Summers, Muskogee, Okl., were with him on the brief), for appellant.

Harry G. Fender, Asst. U. S. Atty., Muskogee, Okl. (Frank D. McSherry, U. S. Atty., Muskogee, Okl., and Paul M. Brewer, Asst. U. S. Atty., Wewoka, Okl., were with him on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

Writ of Certiorari Denied February 28, 1955. See 75 S.Ct. 442.

PHILLIPS, Chief Judge.

McIntire was charged by an indictment containing five counts. The first count charged that McIntire and five others had in their possession and custody and under their control an unregistered still and distilling apparatus for the production of spiritous liquors, in violation of 26 U.S.C.A. § 2810. The second count charged the same defendants with carrying on the business of a distiller of spiritous liquors without having given the bond required by 26 U.S.C.A. § 2814. The third count charged the same defendants with working at a distillery for the production of spiritous liquors upon which no sign bearing the words "Registered Distillery" was posted and kept, as required by 26 U.S.C.A. § 2831. The fourth count charged the same defendants with making fermented mash fit for distillation and for the production of spiritous liquors, on premises other than a distillery duly authorized by law, in violation of 26 U.S.C.A. § 2834. The fifth count charged the same defendants with possession of 16 gallons of distilled spirits, the immediate container of which did not have affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing the payment of all internal revenue taxes imposed on such spirits, in violation of 26 U.S.C.A. § 2803.

McIntire was convicted and sentenced and has appealed.

On February 19, 1953, Sypert, Sheriff, and Marlow and Rector, Deputy Sheriffs of Muskogee County, Oklahoma, and Etchison and Green, officers of the City Police Department of Muskogee, Oklahoma, seized a large distillery in a farm house located west of Muskogee, Oklahoma. The farm house contained five downstairs rooms, one upstairs room, and a front porch. It was situated approximately one-fourth mile from U. S. Highway 62, near a section line road leading from such highway. From such section line road a side road extended to the still house, a distance of approximately 100 yards. The distillery was set up and operating at the time of seizure. It had a daily capacity of approximately 110 gallons of distilled spirits. At the still house there were 77 barrels containing approximately 4200 gallons of mash and 13 gallons of whisky in unstamped containers. Two of the defendants charged in the indictment, Ellison and Mitchell, were arrested by the officers at the time of the seizure. Mitchell told the officers that other persons were involved, but refused to give their names. Green took Ellison and Mitchell to the Muskogee County Jail and then returned to the still house. The officers remained at the still house. About 10:30 p. m., February 19, 1953, the officers saw an automobile stop on the U. S. Highway, near its junction with the section line road leading to the still house. The driver of the automobile, later ascertained to be McIntire, turned off the headlights of the automobile, then turned into the section line road, proceeded to the side road leading to the still house, turned into the side road and approached the still house. Upon reaching the still house McIntire backed the automobile, which was a Navy surplus pick-up truck, sometimes called a Jeep, up to the front porch. The officers heard him drop the end-gate and commence unloading cartons from the Jeep onto the front porch. McIntire then started to open the door into the still house from the front porch. Thereupon, the officers arrested McIntire. Two of the cartons which had been unloaded onto the front porch contained empty gallon glass jugs. The officers also observed several additional cartons in the Jeep which contained empty gallon glass jugs. Such jugs are commonly used as containers for illicit whisky.

McIntire interposed a motion to suppress the evidence, that is, the cartons and the gallon jugs which the officers seized following the arrest of McIntire, on the ground that they were obtained through an unlawful search and seizure of the Jeep. The trial court overruled the motion to suppress.

At the trial McIntire made an offer of additional evidence to establish that Officers Etchison and Green had on several occasions found stills in the vicinity of Muskogee, and had turned the cases over to Federal officers for prosecution. The trial court rejected the offer on the ground it presented a collateral issue, and that it should not stop the orderly trial of the case to inquire into such issue.

It is well settled that a search without a search warrant is justifiable where it is incident to a lawful arrest, if it is reasonable and made in good faith; and that a seizure on such a search of evidence related to the crime and instruments of its commission is permissible.¹

A peace officer may arrest without a warrant one believed by the officer, upon reasonable cause, to have been guilty of a felony, and he may arrest without a warrant one guilty of a misdemeanor, if committed in his presence.² In order to warrant an arrest without a warrant of one believed by the officer to have been guilty of a felony, the facts and circumstances within...