Park v. United States, 1646.

• Decision Date: 02 January 1924
• Docket Number: 1646.
• Citation: 294 F. 776
• Parties: PARK v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

294 F. 776

PARK v. UNITED STATES.

No. 1646.

United States Court of Appeals, First Circuit.

January 2, 1924

Charles Toye, of Boston, Mass. (Toye, Halligan & Murray, of Boston Mass., on the brief), for plaintiff in error.

Raymond U. Smith, U.S. Atty., of Concord, N.H.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM Circuit Judge.

On the 25th of April, 1923, the grand jury in the United States District Court for the District of New Hampshire returned and filed in court an indictment against the defendant (plaintiff in error), a resident of Boston, in the district of Massachusetts, charging that he, on the 8th day of February 1923, at Portsmouth, in said district of New Hampshire 'without having received a permit from the Commissioner of Internal Revenue so to do, did then and there unlawfully transport from Boston into Portsmouth a certain quantity of intoxicating liquor, to wit, 68 gallons of alcohol containing one-half of 1 per centum or more of alcohol by volume, fit for beverage purposes.'

The indictment was based on section 6, tit. 2, of the National Prohibition Act of October 28, 1919 (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2c). The defendant, having been arraigned on the 1st day of May, 1921, and pleaded not guilty, the case was set for trial May 8, 1923. On May 7, 1923, the defendant filed a motion for the return of the alcohol described in the indictment, alleging that it was seized by an officer of the United States without authority, from an automobile which was in the possession of the defendant, in violation of his rights under the Fourth and Fifth Amendments to the Constitution, because the seizure was not made by virtue of a search warrant or by due process of law. At the same time he filed a motion asking that the alcohol be suppressed as evidence and excluded at the trial. When the case was called for trial he presented the motions and requested that evidence be taken on each motion before the jury was impaneled. The court ordered a jury to be impaneled, stating that he would rule upon the motions upon hearing the testimony; that, if the evidence was not admissible, he would rule it out, order the liquor returned, and direct a verdict of not guilty, unless there was other evidence sustaining the indictment, and the defendant excepted.

In his opening statement the district attorney, among other things, said:

'The police will show you that in the Portsmouth police court the next day Mr. Park pleaded guilty to illegal possession of alcohol.'

Counsel for the defendant objected to the statement as prejudicial, and that evidence thereof would not be admissible. The court thereupon instructed the jury that the district attorney was merely making an opening statement; that what he said was not testimony in the case, and, unless it was sustained by evidence from witnesses on the stand, they should pay no attention to it. The defendant excepted to the statement.

In the course of the trial the government offered in evidence a certified copy of the record of the proceedings in the Portsmouth police court on the morning succeeding the defendant's arrest, and offered to show by such record that the defendant then pleaded guilty to the illegal possession of intoxicating liquor. Objection being made, the evidence was excluded.

At the close of all the evidence the defendant entered a motion for a directed verdict, which was denied, subject to exception. The jury found the defendant guilty, and the case is here on his writ of error.

The errors assigned are: (1) That the court erred in denying defendant's motion for the return of the alcohol, on the ground that it had been seized without a warrant and had not been discovered prior to or at the time of the arrest of the defendant and the seizure of the alcohol; (2) that it erred in overruling the motion to exclude the alcohol as evidence, on the ground that it was illegally seized; (3) that it erred in overruling the defendant's objection to the statement of the district attorney in his opening to the jury; (4) that it erred in overruling defendant's objection to the introduction of evidence, through the witness Ellingwood, with reference to the alcohol that was taken from defendant's automobile after he was arrested and taken to the station house; (5) that it erred in overruling defendant's objection to the following question and answer: 'Was it a common thing at that time to see a Massachusetts automobile at Portsmouth? A. No, sir;' and (6) that it erred in refusing to direct a verdict for the defendant at the close of all the evidence.

The grounds on which the trial judge denied the defendant's motions for the return of the alcohol and for its exclusion from evidence are not given. It was a sufficient ground for the denial of the motion to return the alcohol that there was no evidence that it was in the possession of federal officers or any officer of the court, and, as it was not offered in evidence, it might be inferred that it was not in their possession. At any rate, the defendant's rights in this case were in no way harmed by the denial of either motion; the alcohol not having been offered or received in evidence. The defendant takes nothing by the first and second assignments of error.

The third assignment relates to the statement of the district attorney in his opening to the jury to the effect that the defendant pleaded guilty to the charge of illegal possession of alcohol in the Portsmouth police court the next morning after his arrest. If this statement was improper, we do not think the defendant was harmed, as the court told the jury to disregard it, unless sustained by evidence, and, when evidence was offered in support of the statement, it was excluded.

The main questions in the case are raised by the fourth assignment of error, wherein it appears that the court permitted evidence to be introduced through the witness Ellingwood, a federal officer, with reference to the alcohol that was taken from the defendant's automobile after he was arrested and taken to the police station. The same questions are raised by this assignment that would have been presented by the motion to suppress the alcohol as evidence, had it been offered in evidence; for, according to defendant's contention, both are based on the grounds that the alcohol was seized by an officer of the United States or by state or city police officers acting under direction of an officer of the United States; that the seizure was made without a search warrant or due process of law and was illegal; and that, the seizure being illegal, the alcohol, as well as the testimony as to its seizure, given by the witness Ellingwood, a federal officer, who is alleged to have participated in the seizure, was incompetent.

The competency of the testimony depended upon the determination by the trial judge of certain preliminary questions of fact; and his ruling admitting the testimony is to be upheld, if there was any evidence from which any one of the three following propositions could have been found: (1) That the seizure was made by the state or city officers, without the co-operation of the federal officer, in which case the liquor seized and the testimony given by the witness would have been competent on the trial of the defendant in this court, even though the state or city officers, in making the seizure, acted without a search warrant or without due process of law (Kirkley v. United States (C.C.A.) 283 F. 34; Kanellos v. United States (C.C.A.) 282 F. 461; Burdeau v. McDowell, 256 U.S. 465, 41 Sup.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159); or (2) that the seizure was made by the state or city officers with the aid and co-operation of the federal officer, and the state or city officers acted in pursuance of a local search warrant, or of some statute of the state authorizing the seizure; or (3) that the seizure was made by the federal officer alone, or with the assistance of the state officers, and the federal officer had a federal search warrant, or acted in pursuance of some statute of the United States authorizing the seizure (Gouled v. United States, 255 U.S. 298, 308, 309, 41 Sup.Ct. 261, 65 L.Ed. 647; Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177).

We think the evidence was not such as to justify the trial judge in finding that the seizure was made by the state or city officers without the co-operation of the federal officer. Therefore the situation called for by the first subdivision, supra, cannot be regarded as the ground upon which the trial judge based his ruling. There was, however, evidence from which it could have found that the seizure was made by the state or city officers with the assistance of the federal officer, and that the state or city officers undertook to act in pursuance of the laws of the state in making the seizure.

It appears that the possession or transportation of intoxicating liquor is made prima facie illegal by the laws of the state. Laws N.H. 1917, c. 147, Sec. 20, as amended by Laws N.H 1919, c. 99, Sec. 4. There was evidence that the defendant was arrested and taken to the Portsmouth police station by Officers Hewitt and Gray of the city police force. They testified that they arrested him at 10:20 p.m. and rode with him to the Portsmouth police station in his automobile, which he drove; that on arriving at the station Officer Hewitt remained outside with the car; that the defendant was taken into the station by Gray, where he was booked, searched, and locked up, the arrest having been made between sunset and sunrise (P.S.N.H. c. 250, Sec. 4); that thereafter Police Officers Gray and Sullivan (houseman at the station), together with Officer Ellingwood, went to the automobile...