Milam v. United States

• Citation: 296 F. 629
• Decision Date: 08 February 1924
• Docket Number: 2152.
• Parties: MILAM et al. v. UNITED STATES. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

296 F. 629

MILAM et al. v. UNITED STATES. ^[1]

No. 2152.

United States Court of Appeals, Fourth Circuit.

February 8, 1924

John P Flanagan and L. O. Wendenburg, both of Richmond, Va. (C. Jay Hardee, of Tampa, Fla., on the brief), for plaintiffs in error.

Callom B. Jones, Asst. U.S. Atty., of Richmond, Va., and Lester S Parsons, Asst. U.S. Atty., of Norfolk, Va. (Paul W. Kear U.S. Atty., of Norfolk, Va., on the brief), for the United States.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WOODS Circuit Judge.

There was a general verdict of guilty on an indictment containing four counts, each charging a separate conspiracy to conceal harbor, transport, and convey persons of Chinese descent not duly admitted into the United States by an immigration inspector, nor entitled to reside in the United States. The chinaman mentioned in the first count was Moy Gong Chue, alias Lee Chu; in the second, Tong Yuen, alias Poy Jong; in the third, Gee Yuen, alias Toi Lock. In the fourth count 18 Chinamen were mentioned by name, including those mentioned in the first, second, and third counts. The sentence was that the defendants--

'each be imprisoned in the penitentiary at Atlanta, Ga., for the period of two years under each of the three counts of the indictment, said terms of imprisonment to commence in each instance at the expiration of the term of two years on each of the three counts.'

It does not clearly appear which three of the four counts was referred to in the sentence, but, as the fourth embraced the other three, it seems fair to refer the sentence to the first three counts. The court refused a motion to direct a verdict of acquittal, made on the grounds: First, that the Immigration Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4a et seq.), mentioned in the indictment, does not apply to Chinese; and, second, that the court admitted evidence obtained by illegal search, without which there would have been no basis for conviction.

The first position is disposed of by the adverse decision of the Supreme Court on the precise question. United States v. Butt, 254 U.S. 38, 41 Sup.Ct. 37, 65 L.Ed. 119. The evidence referred to in the second ground was obtained in this way: Federal prohibition officers, having information that an automobile loaded with whisky was on its way from Florida, via Savannah, had been on the watch for several days to intercept it at a bridge in Dinwiddie county, Va. About 10 o'clock on the night of August 16, 1922, the officers, without a search warrant, stopped at the bridge a motor truck in charge of two of the defendants. In answer to the question what was in the truck, Milam, one of them, answered, 'Nothing.' One of the officers then opened the door of the truck, and discovered 18 Chinamen referred to by name in the indictment.

The decisions of the Supreme Court as to the incompetency of evidence obtained by unreasonable search and seizure are too familiar for restatement or citation. As they do not control in the enforcement of state laws, many state courts of last resort have refused to follow them. Review of the decisions, federal and state, will be found in the notes in 3 A.L.R. 1514, 13 A.L.R. 1316, and 24 A.L.R. 1408; documents 3713 and 3781, printed for use of the Judiciary Committee of the Senate; annotation of H.R. 7294; American Bar Association Journal, August, 1922, and December, 1923; 34 Harvard Law Review, 361.

Full effect must be given here to the decisions of the Supreme Court holding that evidence obtained by an unreasonable, and therefore unlawful, search is not competent. Search of a dwelling house, possibly any house, without the authority of a search warrant, the court has declared as a general rule unlawful. But it has not declared unlawful all searches without warrant. It has not declared unlawful search without warrant of motor vehicles for intoxicating liquor or other evidence of crime. Nor has the court ever explicitly decided that, if officers making an unlawful search for the discovery of evidence of one crime find evidence of another, the evidence so unexpectedly discovered may not be used.

We are not inclined to extend the rule of exclusion of evidence obtained by unlawful search beyond the decisions of the Supreme Court. The constitutional expression 'unreasonable searches,' is not fixed and absolute in meaning. The meaning in some degree must change with changing social, economic and legal conditions. The obligation to enforce the Eighteenth Amendment is no less solemn than that to give effect to the Fourth and Fifth Amendments. The courts are therefore under the duty of deciding what is an unreasonable search of motor cars, in the light of the mandate of the Constitution that intoxicating liquors shall not be manufactured, sold, or transported for beverage purposes. Every constitutional or statutory provision must be construed, with the purpose of giving effect, if possible, to every other constitutional and statutory provision, and in view of new conditions and circumstances in the progress of the nation and the state. ...