Raine v. United States

• Decision Date: 09 June 1924
• Docket Number: 4232.
• Citation: 299 F. 407
• Parties: RAINE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

299 F. 407

RAINE v. UNITED STATES.

No. 4232.

United States Court of Appeals, Ninth Circuit.

June 9, 1924

The plaintiff in error was convicted on two counts of an indictment, one of which charged him with the possession of property designed for the manufacture of liquor intended for use in violation of the National Prohibition Act (Comp. St Ann. Supp. 1923, Sec. 10138 1/4 et seq.); the other count charged him with the manufacture of intoxicating liquor. He lived upon a large inclosed ranch. On December 19, 1922, a search warrant was issued directing federal prohibition officers to enter the ranch premises, search the same including the dugouts, sheds, and outbuildings connected therewith, for intoxicating liquor, and apparatus for manufacturing the same, and to take the same into their possession. In the evening of that day three prohibition agents went upon the premises of the plaintiff in error and proceeded to a dugout at a point about one-third of a mile from his dwelling house. In the meantime they had caused a message by telephone to be sent to the plaintiff in error informing him that federal officers would be at his ranch at daylight, and advising him that he had better dump 'that stuff in the willows.' About midnight the plaintiff in error and his codefendant, Brite, appeared on the scene on horseback. Brite dismounted and proceeded to the dugout. Thereupon the prohibition agents leveled their guns upon the plaintiff in error and advised him that he was under arrest. Shots were fired, and one of the agents was mortally wounded. The plaintiff in error retreated from the scene. The agents went to the door of the dugout, which was open, and saw barrels therein.

On December 21 the United States marshal, with a deputy and a prohibition agent, went to the ranch of the plaintiff in error and arrested the plaintiff in error and Brite. Later in the day they returned to the ranch and seized certain articles, which were admitted in evidence on the trial. On December 23 a return was made on the search warrant, stating under oath that the premises described in the warrant had been searched, and that a stove used for distillery purposes and five gallons of mash and other property, had been seized as evidence. On December 26, 1922, a further search was made and in the dugout further articles were seized, which were later offered in evidence. At that time the prohibition agents had no search warrant in their possession.

B. F. Curler and M. B. Moore, both of Reno, Nev., for plaintiff in error.

George Springmeyer, U.S. Atty., and Chas. A. Cantwell, Asst. U.S. Atty., both of Reno, Nev.

Before GILBERT, ROSS, and RUDKIN, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

Error is assigned to the refusal of the court to return, suppress, and exclude the evidence obtained upon the searches of the premises of the plaintiff in error, and it is contended that the search warrant was void because issued to a prohibition agent, that a prohibition agent is not authorized by law to execute a search warrant, and that the prohibition agents were not authorized to enter the inclosed premises of the plaintiff in error in a clandestine and stealthy manner under the authority of a search warrant, without serving or attempting to serve the same. It is further contended that the prohibition agents were not competent to testify to any fact obtained by them on the premises of the plaintiff in error, their entry having been made secretly, and without service or attempted service until after the arrest of the plaintiff in error.

The contention is that the portion of the Volstead Act, which adopts the provisions of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 10212a-10212h) as to the conditions of the issuance of search warrants and the form and service thereof by 'civil officers,' makes it certain that, under clause 2, section 2, article 2, of the Constitution, the officers so referred to, are such only as hold their appointment through the President, or through the courts, or through the heads of departments, and United States v. Musgrave (D.C.) 293 F. 203, is cited, in which it was so held. We are unable to agree with that contention. Our views coincide with those expressed in United States v. Daison (D.C.) 288 F. 199, United States v. Keller (D.C.) 288 F. 204, United States v. Syrek (D.C.) 290 F. 820, United States v. O'Conner (D.C.) 294 F. 584, and United States v. American Brewery Co. (D.C.) 296 F. 772.

The National Prohibition Act (Comp. Stat. Ann. Supp. 1923, Sec. 10138 1/4b) directs the Commissioner of Internal Revenue, his assistants, agents, and inspectors, to investigate and report violations of the War Prohibition Act (Comp. St. Ann. Supp. 1919, Secs. 3115 11/12f-- 3115 11/12h), and confers upon such Commissioner, his assistants, agents, and inspectors, power to swear out warrants before the United States commissioners or other officers. Section 10138 1/4e recognizes prohibition agents as officers of the United States. It provides that the Commissioner of Internal Revenue, his assistants, agents, and inspectors, 'and all other officers of the United States' whose duty it is to enforce the criminal laws, shall have the power for the enforcement of the War Prohibition Act, or any provisions thereof, which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the laws of the United States. Title 2, Sec. 1, subd. 7 (41 Stat. 308 (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2)), provides that any act authorized to be done by the Commissioner may be performed by any assistant or agent designated by him for that purpose. Section 28 of the same title (section 10138 1/2o) gives to the Commissioner, his assistants, agents, and inspectors, power and protection-- 'in the enforcement of this act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States.'

These inclusive words should be held to mean that the prohibition agent is constituted a peace officer. Convincing evidence that such is the intention of the statutes is found in section 6 in the act supplementary to the National Prohibition Act (42 Stat. 223 (Comp. St. Ann. Supp. 1923, Sec. 10184a)), which imposes a penalty on any officer, agent, or employe of the United States engaged in the enforcement of the National Prohibition Act who shall search a private dwelling without a warrant directing such search, 'or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property. ' Clearly by implication this statute recognizes the power of prohibition agents to execute search warrants.

It is contended that the plaintiff in error was entitled to the exclusion of all evidence of what the officers saw and heard upon his premises on the night of December 19, for the reason that their entry thereon was clandestine and unlawful; no service having been made of the search warrant. It is true that the officers went upon the premises at night and in a secret manner, and awaited the appearance of the plaintiff in error; they having caused to be sent him what purported to be a friendly warning to the effect that officers would be there in the morning, and the advice that he 'dump that stuff in the willows. ' The appearance of the plaintiff in error and his codefendant, Brite, upon the scene, was evidence to the officers that they had come in response to the warning, and that the illicit still in the dugout belonged to them. The officers heard Brite tell the plaintiff in error to stay and watch the place and 'kill the first son of a bitch that shows up. ' They heard one of them remark 'that it smelled pretty strong down there,' referring to the dugout, and heard the other answer that he would go down and open it and let the air out. The officers had noticed the strong odor of fermentation, and after the dugout had been opened by Brite they saw the contents of it. When they told the plaintiff in error he was under arrest, he began firing, and thereupon several shots were exchanged, and one of the officers was mortally wounded.

The foregoing is the substance of the testimony as to what occurred on December 19. There was clearly no error in its admission. The officers were armed with a search warrant, but there was no occasion to use it. They did not need to serve it in order to go upon the land of the plaintiff in error. They had no occasion to open the door of the dugout. It was opened by Brite. They had ample evidence of their senses that a crime was then and there being committed. Conclusive against the contention here urged is Hester v. United States, 44 Sup.Ct. 445, 68 L.Ed. . . ., decided by the Supreme Court on May 5, 1924. In that case the officers had no warrant for search or arrest. The evidence which they offered consisted of articles which they found in the dooryard of the premises of the accused. Said the court:

'The special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects' is not extended to the open fields. The distinction between the latter and the house is as old as the common law.' Nor was the plaintiff in error entitled to the exclusion of the evidence obtained by the officers on December 21. On that morning the plaintiff in error had been arrested and he had left one Jack Leonard in charge of his ranch. When the officers arrived on the premises, Leonard gave full permission to enter and search for evidence. The officers discovered certain articles which tended to show that there had been distillation at the dugout, and proof of what

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