Nicholson v. United States

• Decision Date: 29 May 1925
• Docket Number: No. 3482.,3482.
• Citation: 6 F.2d 569
• Parties: NICHOLSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

6 F.2d 569 (1925)

NICHOLSON et al. v. UNITED STATES.

No. 3482.

Circuit Court of Appeals, Seventh Circuit.

May 29, 1925.

Charles A. Karch, of East St. Louis, Ill., for plaintiffs in error.

Lawrence T. Allen, of Danville, Ill., for the United States.

Before EVANS, PAGE, and ANDERSON, Circuit Judges.

EVAN A. EVANS, Circuit Judge.

Plaintiffs in error were convicted on four counts of an indictment charging them with having unlawfully (a) manufactured intoxicating liquor; (b) transported intoxicating liquor; (c) possessed intoxicating liquor; and (d) maintained a nuisance in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, §§ 10138¼ et seq.).

One assignment of error only will we consider. It deals with evidence secured through a search. Six hundred barrels of 4.7 per cent. beer were obtained at the brewery, and a carload was taken while in transportation. Defendants were conducting a brewery, and apparently doing a thriving business, when two prohibition agents visited their premises and asked for the privilege of inspection. The request was refused. The agents thereupon appeared before a court commissioner and secured a search warrant.

The facts recited in the affidavit upon which the search warrant was granted were sufficient to justify its issuance. But it is insisted that such facts were obtained under circumstances which prohibited their use either upon the trial or in securing a search warrant. In other words, the prohibition agents, when they went to the brewery and asked for permission to inspect the premises, and were refused such permission, observed that there was steam rising from the engine room, smoke coming from the smokestack, and the odors of hop and mash and beer were strong and incriminating.

The information upon which search warrants are secured may come from any source. The olfactory as well as the optic nerves are a dependable source of such information. It is not necessary that written documentary evidence be obtained, nor confessions secured. Plaintiffs in error were obviously conducting a brewery, and the prohibition agents were trained to detect the presence of intoxicating liquor, particularly that known as beer. They were qualified to state what they observed, from which the commissioner was required to find, and did find, probable cause to believe that intoxicating liquor was being manufactured upon the premises described in the warrant.

In fact, the sufficiency of this evidence is not questioned. Rather does plaintiff in error rely upon his objection that such evidence was privileged, or at least not usable, to obtain a search warrant. Counsel states his position as follows:

"The affidavit upon its face shows that the affiant gained whatever knowledge he had of the facts and circumstances on the premises, and it was gained by his unlawful intrusion on such premises, and...