Patenotte v. United States

• Citation: 266 F.2d 647
• Decision Date: 15 May 1959
• Docket Number: No. 17573.,17573.
• Parties: Nolan E. PATENOTTE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

266 F.2d 647 (1959)

Nolan E. PATENOTTE, Appellant, v. UNITED STATES of America, Appellee.

No. 17573.

United States Court of Appeals Fifth Circuit.

May 15, 1959.

Robert B. Adam, Gulfport, Miss., for appellant.

Jack McDill, Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Miss., for appellee.

Before HUTCHESON, Chief Judge, and BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This is an appeal from a judgment of forfeiture of a "1956 International Tractor, Aluminum Trailmobile Refrigerated Trailer, 150 100-Pound Sacks of No. 2 Rye, 1364 One-Gallon Glass Jugs in Cartons, and 37 100-Pound Sacks of Cerelose 53 (Corn Sugar)." The libel was brought under Sections 7301 and 7302, Int.Rev.Code of 1954, 26 U.S.C.A.¹

Appellant raises two questions for our consideration by his contentions that his truck was the subject of an unlawful search by officers, and that the Government has not sustained its burden of showing that these goods were intended for an illegal purpose.

I. The Search

Investigators Langton and Dunn and others of the Alcohol and Tobacco Tax Unit in Gulfport, Mississippi, were engaged in a "raw materials" enforcement campaign on October 9, 1957. They were driving along about three miles southeast of Vidalia, Mississippi, about 11:00 a. m., when down the road toward them came a large 32-foot truck which they recognized as belonging to Appellant Patenotte. Langton said, "There's Quarles driving the truck. Let's stop it and see what's on it." They did. They asked Quarles, who was driving for Patenotte, to show them the invoices. He did. The papers disclosed that Quarles had a considerable quantity of rye, jugs and corn sugar in the truck. The investigators opened the side door of the truck and saw the sacks of rye and the cartons of jugs. Then they let him and the truck go. As there were many investigators involved in this campaign they radioed the news to others, and by 2:30 that afternoon the property was seized, on Patenotte's farm, by Investigators Shanks, Green and Supervisor-in-Charge West.

The District Court admitted the evidence concerning the circumstances of the search and also evidence as to the contents of the truck disclosed by the search. Appellant contends that as this search was in violation of his rights under the Fourth Amendment,² its fruits should have been excluded. Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.

It does not detract from the importance of the Fourth Amendment to note at the outset that it does not prohibit all searches and seizures by Federal officers. To be stopped, and searched, is always an inconvenience at best, but it is not always unreasonable. Search of automobiles is justifiable under many situations. For example, Mr. Justice Jackson has noted that "regulations of traffic, identifications where proper, traffic census, quarantine regulations, and many other causes give occasion to stop cars in circumstances which do not imply arrest or charge of crime." Brinegar v. United States, 1949, 338 U.S. 160, 188, 69 S.Ct. 1302, 1317, 93 L.Ed. 1879 (dissenting opinion). Likewise, while there is uncertainty as to the permissible extent of a reasonable search after arrest, the law is clear that if an arrest is proper at least some accompanying search is reasonable. United States v. Rabinowitz, 1950, 339 U.S. 56, 60-61, 70 S.Ct. 430, 94 L.Ed. 653; Agnello v. United States, 1925, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; Carroll v. United States, 1925, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543; Weeks v. United States, 1914, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652. Also, all accept reasonable searches by customs officials of those crossing or entering from a national border. Carroll v. United States, supra, 267 U.S. at pages 151, 154, 45 S.Ct. at pages 284, 285; Ramirez v. United States, 5 Cir., 1959, 263 F.2d 385. The law also recognizes that the reasonableness of the search without a warrant of moving vehicles is to be judged differently from search of homes. See generally Carroll v. United States, supra; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Jones v. United States, 1958, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Cannon v. United States, 5 Cir., 1946, 158 F.2d 952, certiorari denied 330 U.S. 839, 67 S.Ct. 980, 91 L.Ed. 1286; Hart v. United States, 10 Cir., 1947, 162 F.2d 74, 75; Clay v. United States, 5 Cir., 1956, 239 F.2d 196. This is due in part to a recognition of the inherent mobility of such "effects," but it is certainly true "that the subject of the search is an automobile (or an occupant) does not let down the bars altogether * * *, especially where the automobile is not the present means of flight, of likely destruction of evidence, or where the transportation itself is not a crime." Clay v. United States, supra, 239 F.2d at page 204.

The general standard of reasonableness of search of an automobile or truck without a warrant is one of "probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction * * *." Carroll v. United States, supra, 267 U.S. at page 149, 45 S.Ct. at page 283.

"Probable cause" does not mean that the officers must possess enough evidence in admissible form to convict the person whom they arrest or search. Brinegar v. United States, supra, 338 U.S. 160, 172-173, 69 S.Ct. 1302; Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; United States v. Heitner, 2 Cir., 1945, 149 F.2d 105, 106. The cases have discussed at least five factors, for example, which may be considered by the officers in establishing probable cause for a search: (1) the reputation of, or informant's reports concerning, the occupants, (2) a like reputation of the vehicle or owners, (3) the condition of the vehicle (e. g., heavily loaded), (4) information from reputable informers as to the existence and illegal purpose of the trip, and (5) the reputation of the location in which they are found. Brinegar v. United States, supra, 338 U.S. at page 166, 69 S.Ct. at page 1306; Carroll v. United States, supra, 267 U.S. at page 160, 45 S.Ct. at page 287; The Apollon, 1824, 9 Wheat, 362, 374, 22 U.S. 362, 374, 6 L.Ed. 111; Cervantes v. United States, 9 Cir., 1959, 263 F.2d 800, 804; Turner v. Camp, 5 Cir., 1941, 123 F.2d 840, 842. In the leading case of Carroll v. United States, supra, a search of an automobile for prohibition whiskey was held legal although the searching officers had no direct evidence that the car contained liquor. It did not appear heavily loaded and it was not being driven in an unusual manner. But it was going from Detroit to Grand Rapids, Michigan — and Detroit was known to be a source of liquor. The officers recognized the occupants as men who had offered to obtain whiskey for an officer in Grand Rapids a few months earlier, although they never did so. They recognized the car as the same one the men had driven that night. The Supreme Court held these facts were sufficient to constitute "probable cause" for the search.

Just so, in this case, the officers were informed regarding (1) the reputation of the driver, (2) the reputation and activities of the vehicle (and its owner), (3) their asserted observation that the motor sounded as if the truck were heavily loaded, and (4) the reputation of the location, and probable destination of the truck. Just as in Carroll and Brinegar, however, they had no information regarding the specific purpose of this trip, nor the actual contents of the truck.

They knew that Quarles had previously been convicted of violating the internal revenue laws, and was personally known to the Investigators. They knew that the truck belonged to Patenotte. They had seen the truck "several times" before and had seen it being loaded with approximately 240 100-pound sacks of sugar a few months earlier in New Orleans. The truck trailer was 32 feet long and somewhat distinctive, and they recognized the license plate number and the little red sign on the back, "We stop at shacks and railroad crossings." Although Patenotte did not have a reputation as the operator of a still, he did have the reputation as a supplier, operated "Pat's Glassware" store in Cuevas, Mississippi, and had sold considerable quantities of sugar and jugs. They also knew the location of Patenotte's "farm," and knew that Quarles was driving the truck in that direction. This area was considered to be "the heart of the `moonshine' community," and Dunn testified that of the 75 or 80 stills he had investigated in the two years he had been with the ATU, 50 were in the Vadalia vicinity. Although there is some dispute about the matter, and a heavily loaded truck is not as unusual as a heavily loaded car, the two investigators testified that the truck sounded as if it were heavily loaded as it came up the hill towards them.

We reaffirm that "if officers have the right to interfere with that essential pursuit of a nation of automobilists, it must be based on what is known or reasonably believed before the commandeering starts," Clay v. United States, supra, 239 F.2d at pages 200-201, but we think that all of these circumstances add up to one of reasonableness.

The search was lawful and its fruits were, and will be, admissible.

II. The Intended Use

But information which may justify search may not be sufficient to sustain the Government's burden of proof at the trial on the merits for forfeiture. The two judicial inquiries are essentially different in nature as well as in the quantity and quality of evidence required. Brinegar v. United States, 1949, 338 U.S. 160, 172-173, 69 S.Ct. 1302, 93 L.Ed. 1879, supra. This is so even though its burden is but the lesser civil "preponderance of the evidence" rather than the criminal "beyond a reasonable doubt" standard. Lilienthal's Tobacco v. United States, 1878, 97...