Miller v. United States

• Decision Date: 20 July 1931
• Docket Number: 4584.,No. 4583,4583
• Citation: 50 F.2d 505
• Parties: MILLER v. UNITED STATES. HOFFMAN v. SAME.
• Court: U.S. Court of Appeals — Third Circuit

50 F.2d 505 (1931)

MILLER v. UNITED STATES.

HOFFMAN v. SAME.

Nos. 4583, 4584.

Circuit Court of Appeals, Third Circuit.

May 20, 1931.

Rehearing Denied July 20, 1931.

P. J. Friel and John Crolly, both of Philadelphia, Pa., for appellants.

Michael Stoney, Asst. U. S. Atty., and Paul Freeman, Asst. U. S. Atty. in charge, both of Philadelphia, Pa.

Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.

WOOLLEY, Circuit Judge.

Long before trial Miller filed a written motion in the District Court for a bill of particulars, reciting the substance of two counts of an indictment which charge, in usual form, that he violated the National Prohibition Act (27 USCA) by possessing and transporting liquor on or about a named date, and divers dates thereafter, at a named place in the district, and averring that because of the "vagueness and indefiniteness of the charge" he was prevented from preparing his defense and would, should occasion arise, be precluded from pleading a former acquittal or conviction. The learned trial judge had before him no more than we now have on this statement. He knew, of course, that the motion was addressed to his discretion, Dunlop v. United States, 165 U. S. 486, 491, 17 S. Ct. 375, 41 L.Ed. 799, and that a motion of this character ordinarily should be granted whenever the accused is liable to be surprised by an issue for which he is not prepared. But the learned trial judge thought the motion vague as to the character of the information desired and found himself unable to determine just what the defendant wanted. So he denied the motion, yet, being careful of the defendant's rights, he denied it with leave to renew it at a time and under circumstances by which he could be shown that the information in the indictment was less than should have been given. Thus far it is very certain the judge committed no error. And, evidently, so thought the defendant at the moment because he did not ask for an exception; nor would one have been allowed, for this action of the judge was not subject to review. Rosen v. United States, 161 U. S. 29, 35, 16 S. Ct. 434, 40 L. Ed. 606; Dunlop v. United States, supra. Thus the whole matter was left in the defendant's hands, yet he went to trial and verdict without renewing his motion. As, naturally, the court did nothing more, we cannot see to what order or action of the court the assignment of error is addressed or how, in the circumstances, the court could commit error.

The remaining assignments of error relate to the manner in which the trial court handled the facts of the case, particularly those of the search and arrest. They are briefly as follows:

The Mahony Manufacturing Company operated a brewery at Ashland, or Millersville, Pennsylvania. It was suspected that the company was brewing illicit beer and effecting its transportation for sale through the common device of pumping it through a pipe to a nearby place where it would be racked off and taken away by trucks. It was suspected that the Hide and Tallow Factory, located about one hundred yards across the road from the brewery, was such a place.

Two members of the Pennsylvania State Constabulary, having been on watch for several days, heard a noise as of the handling of kegs in the Tallow Factory and intercepted a loaded truck as it was being driven from the premises in charge of the defendant Hoffman. The state troopers then entered the factory, found a complete racking room, took samples of beer which on analysis showed 4.6% of alcohol by volume, returned to the truck and searched it, finding it loaded with beer, samples of which showed a like alcoholic content. Miller had in the meantime appeared upon the premises giving orders to "dump that stuff," whereupon the beer was done away with. He also offered a very substantial money inducement to the state troopers to take the truck and drop all charges.

About fifteen minutes after the seizure and arrest, two federal prohibition agents, who had been watching the brewery, appeared and asked if they could be of any help. None was accepted or rendered. One of the federal agents took and tested samples of the beer, but that had nothing to do with the search and arrest and does not constitute co-operation with the state officials. The state troopers then arrested Hoffman and, accompanied by the federal agents, took him before a United States Commissioner by whom he was held for trial, and ran the truck with the beer to the government warehouse at Pottsville where they turned it over to the federal agents. Miller was later arrested on a warrant. Subsequently both men were charged with like offenses by separate indictments, were tried together, convicted and sentenced. Both appealed.

The court refused the defendants' motion, seasonably made, to quash the search and suppress the evidence seized thereunder and at the trial admitted over the defendants' objection evidence obtained under the search and seizure. These two actions of the trial court the defendants now assign as error on the ground that the search, seizure and arrest, though made by state troopers, were made not for a violation of a state liquor law but for a violation of the federal prohibition law; that the seizure and arrest so made by officers of a state were adopted by the United States as the basis of this prosecution and that they were unlawful because made without a warrant and without probable cause and generally because the case falls under the law of Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 52 A. L. R. 1381, 72 L. Ed. 293.

The law of the Gambino Case is briefly as follows:

The Fourth Amendment is not directed to individual misconduct of state officers. Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652. Evidence wrongfully secured by persons other than federal officers is admissible in prosecutions for federal crimes. Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159. However, evidence obtained through wrongful search and seizure by state officers who are co-operating with federal officials must be excluded. Flagg v. United States (C. C. A.) 233 F. 481, ...