Peru v. United States

• Decision Date: 06 April 1925
• Docket Number: No. 6711,6712.,6711
• Citation: 4 F.2d 881
• Parties: PERU v. UNITED STATES. BIRD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 881 (1925)

PERU v. UNITED STATES.

BIRD v. UNITED STATES.

Nos. 6711, 6712.

Circuit Court of Appeals, Eighth Circuit.

April 6, 1925.

James T. English, of Omaha, Neb., for plaintiffs in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., and Andrew C. Scott, Asst. U. S. Atty., both of Omaha, Neb., on the brief), for the United States.

Before KENYON, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.

KENYON, Circuit Judge.

Plaintiffs in error were tried in the District Court of Nebraska, Omaha Division, upon an information in five counts charging violation of the federal law with reference to selling and possessing intoxicating liquor. Plaintiff in error, Dominick Peru, was convicted on all counts. Plaintiff in error, Anton Bird, was acquitted under direction of the court on the first four counts, and the jury returned a verdict of guilty on the fifth.

The facts are few and not intricate. Both Peru and Bird were employed in a fruit store in Omaha, which seems to have been owned by one Bizzari. Government officials, suspicious of the place, arranged to send the government witness, Holloway, into the store for the purpose of purchasing intoxicating liquor. He went there on the 24th day of December, 1923; the government agents remaining about a half block away, having previously given Holloway a marked dollar bill to use in the purchase. After eight or ten minutes in the store, Holloway came out and waved to the parties awaiting his exit. They immediately went into the store, and rushed through it into a back room, where they found plaintiff in error Peru with the marked dollar bill in his possession, which they took. They also found in their search of the room a milk bottle which contained liquor, subsequently introduced in evidence against the plaintiffs in error. The officers had no search warrant, nor any warrant for the arrest of plaintiffs in error. The liquor was found in a separate room in the rear of the store building, which room was apparently the living quarters of Dominick Peru. It contained a bed, chairs, stove, and other furniture incident to such quarters. The officers making the arrest of plaintiffs in error had no information of the presence there of intoxicating liquors, except the communication to them by Holloway that he had purchased a drink of liquor in the place. Seasonable motion was made on the part of plaintiffs in error to suppress the evidence secured at the time of their arrest in the room in the rear of the store building. During the trial the court permitted the liquor to be passed around among the jury, for them to judge what it was by tasting, smelling, and handling it.

A number of errors are assigned, which raise several important questions, viz.: (a) Was the evidence as to the presence of whisky in the room secured by an unreasonable search and seizure, in violation of the Fourth Amendment to the Constitution? (b) Should verdict have been directed as to defendant Bird on the fifth count? (c) Was it erroneous for the court at the trial to permit counsel for the government to pass the alleged liquor amongst the jurors, for them to taste, smell, and handle? Other errors assigned we deem unnecessary to consider, in view of our conclusion as to these questions.

As to the first question: Was this search an unreasonable one, within the purview of the Fourth Amendment to the Constitution? Not every search and seizure is unreasonable. The Fourth Amendment provides only against unreasonable searches and seizures. The right of the people to be secure in their homes, places of business, and their persons against unreasonable search and seizure is one of the strongest safeguards of a free citizenship. Our courts have rigidly exercised their power against the ofttimes insidious attempts to undermine and weaken the Fourth and Fifth Amendments to the Constitution.

In Weeks v. United States, 232 U. S. 383, 391-392, 34 S. Ct. 341, 344 (58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177), the court said: "The effect of the Fourth Amendment is to put the courts of the United States and federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our federal system with the enforcement of the laws."

In Bram v. United States, 168 U. S. 532, 544, 18 S. Ct. 183, 187 (42 L. Ed. 568), the Supreme Court, referring to the Fourth and Fifth Amendments, said "that both of these amendments contemplated perpetuating, in their full efficacy, by means of a constitutional provision, principles of humanity and civil liberty, which had been secured in the mother country only after years of struggle, so as to implant them in our institutions in the fullness of their integrity, free from the possibilities of future legislative change." See, also, Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Silverthrone Lumber Co., Inc., et al. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Veeder v. United States, 252 F. 414, 164 C. C. A. 338; Dukes v. United States (C. C. A.) 275 F. 142; Agnello et al. v. United States (C. C. A.) 290 F. 671; Murphy v. United States (C. C. A.) 285 F. 801.

In the worthy and laudable effort to enforce and give effect to the Eighteenth Amendment to the Constitution, the force of other amendments thereto should not be minimized. It is fully as important to enforce the Fourth and Fifth Amendments to the Constitution as it is to enforce the Eighteenth Amendment. If the arrest of plaintiffs in error here was with legal authority, then the search for and seizure of articles under their control that might be evidence of the crime was not unreasonable.

It is the generally accepted law that, to justify an arrest for a misdemeanor without a warrant, it must have been committed in the presence of the officer, and that it is so committed when he can by the exercise of his own senses detect the same. It is undisputed that the crime for which plaintiffs in error were arrested was a misdemeanor.

In the very late case of Carroll and Kiro v. United States, 45 S. Ct. 280, 69 L. Ed. ___ (opinion filed by the Supreme Court March 2, 1925), the court said: "The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence. * * * When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution." Green et al. v. United States (C. C. A.) 289 F. 236; Welsh v. United States (C. C. A.) 267 F. 819; Donegan v. United States (C. C. A.) 287 F. 641; Elrod v. Moss et al. (C. C. A.) 278 F. 123; United States v. Borkowski et al. (D. C.) 268 F. 408.

A mere suspicion is not sufficient upon which to base an arrest for a misdemeanor without a warrant. United States v. Slusser (D. C.) 270 F. 818. In Garske v. United States, 1 F.(2d) 620, 625, we said: "The proper test, supported by the great weight of authority, by which this case should be decided is, were the circumstances presented to the officers through the testimony of their senses sufficient to justify them in a goodfaith belief that plaintiff in error was in their presence transporting liquor in violation of law or that he had in their presence liquor in his possession in violation of law? In other words, was there probable cause for them to so believe, or were the facts sufficient to give rise...