ONE 1941 FORD 1/2 TON PICKUP A. TRUCK, ETC. v. United States, 9652.

• Decision Date: 31 January 1944
• Docket Number: No. 9652.,9652.
• Citation: 140 F.2d 255
• Parties: ONE 1941 FORD ½ TON PICKUP AUTOMOBILE TRUCK, MOTOR NO. 18 — 6725628 v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

140 F.2d 255 (1944)

ONE 1941 FORD ½ TON PICKUP AUTOMOBILE TRUCK, MOTOR NO. 18 — 6725628 v. UNITED STATES.

No. 9652.

Circuit Court of Appeals, Sixth Circuit.

January 31, 1944.

Clint W. Hager and J. F. Kemp, both of Atlanta, Ga., and W. A. McClure, of Chattanooga, Tenn., for appellant.

J. B. Frazier, Jr., and O. T. Ault, both of Chattanooga, Tenn., for appellee.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

HICKS, Circuit Judge.

On the night of July 21-22, 1942, agents of the Alcohol Tax Unit, while watching a house on Wildwood Road in Bradley County, Tennessee, saw a 1941 Model Ford Truck drive up and upon searching it found therein five gallons of untaxed liquor; whereupon they seized the truck.

A libel was filed against the truck under the provisions of Sec. 3450 R.S., as amended, Sec. 3321, 26 U.S.C.A. Int.Rev.Code.¹ Harold Hefner, who claimed to be the owner, resisted the forfeiture and alleged that it had been stolen from him and that at the time the liquor was found therein it was in the hands of thieves. He further alleged in a "Motion to Restore Property Illegally Seized" that at the time of the discovery of the liquor the officers were upon private property, acting without a search warrant and without probable cause. There was a further contention that there was no proof of an intention to defraud the Government.

The court ordered the truck forfeited and disallowed Hefner's petition for remission or mitigation of the forfeiture.

The questions raised here are, (1) whether there was probable cause to search the truck; (2) whether there was sufficient proof of an intent to defraud the Government; (3) whether there was sufficient proof of the theft of the truck; and (4) whether the court drew undue inferences against the claimant for his failure to testify.

R. T. Kitts, an Investigator of the Alcohol Tax Unit, testified that two or three days before the truck was seized, he received information that a 1941 Model Truck was transporting liquor from Carticay, Georgia, making one load a week. On the night in question, he and Frank L. Rennick, also of the Alcohol Tax Unit, were driven to the Millsaps place on Wildwood Road in Bradley County, Tennessee, about two miles south of Cleveland, by R. L. Johnson, also of the Tax Unit, and they arranged to be picked up by him about one o'clock in the morning. The place had been used as a station by Dee Gibson, twice previously convicted of handling untaxed liquor. Watching from near the Millsaps barn, the agents saw a Chevrolet car drive in about 10:30 and park behind the Millsaps house about one hundred and fifty yards from the highway. Two men got out and left and at midnight Robert Millsaps came up in a car. At about 1:10 A.M. the truck came along the highway, switched off its lights at the entrance to the Millsaps driveway and drove in. Kitts was alone at the time. He testified that three men, one of whom was Dee Gibson, got out of the truck. At about that time Johnson drove up to the entrance and frightened the men away.

Kitts and Rennick then went to where the vehicles were parked, and not only smelled whiskey, but found some in one gallon cans on the ground and one hundred and twenty-one gallons in the Chevrolet car. They also found five gallons of whiskey in the truck in metal cans without stamps to indicate the payment of the revenue. They seized both cars. The night was bright moonlight, the Millsaps driveway was unfenced and the gate of the highway was open. There was a hedge and fence near the Millsaps residence but neither car went inside this fence.

Claimant's wife testified that they lived in Carticay, Ga., that her husband had a one-half ton Pick-up Truck; that on July 1, 1942, she drove the truck to her mother's and returned about dark and parked the car with the keys in it beside the barn, across the road from the house, the customary parking place, and about fifty paces from the house; that her husband retired about 8 o'clock, that they slept together, that he was not away from the house during the night; that about daylight he went outside and when he returned asked her where the truck was parked; that she told him and went out and looked and the truck was gone. She fixed the date as July 22nd by the fact that that same day they got their gasoline rationing coupons. She further testified that her husband went before breakfast to a neighbor's, Cula Suthern, and got him to take him to Ellijay. She identified a registration certificate for the truck and testified that she often left the keys in the truck.

Suthern testified that Hefner came to his home a little after daylight on July 22nd and asked to be taken to the Sheriff's office at Ellijay.

Sheriff Rackley testified that in July, 1942, Hefner came to the jail where he lived and reported that his pick-up truck had been stolen and that he and Hefner made search but never found it. He further testified that the distance from Ellijay, Ga., to Cleveland, Tenn., was from eighty to one hundred miles.

Hefner was in the courtroom during the hearing but did not testify and the court observed that if he did not there was a presumption against him.

Upon these facts we conclude that the agents had probable cause to believe that the truck contained contraband whiskey and that it was not unreasonable to search it without a warrant. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Husty v. United...