Rhodes v. United States

• Decision Date: 30 June 1955
• Docket Number: No. 15347.,15347.
• Citation: 224 F.2d 348
• Parties: Charlie RHODES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 348 (1955)

Charlie RHODES, Appellant, v. UNITED STATES of America, Appellee.

No. 15347.

United States Court of Appeals Fifth Circuit.

June 30, 1955.

Ray Sandstrom, Joseph A. Varon, Varon & McMorrough, Hollywood, Fla., for appellant.

Anthony S. Battaglia, E. David Rosen, Asst. U. S. Attys., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

Having been convicted on five counts of violating provisions of the Internal Revenue Code relating to alcoholic liquors, appellant contends his conviction should be reversed because certain evidence admitted was obtained by an unlawful search and seizure, because the court admitted certain statements of appellant without first requiring the Government to prove that they were voluntary, and because of defects in the indictment, the proof, and the instructions to the jury.

The indictment charged appellant Rhodes and a codefendant, James Miller, with (1) possession of 5 1/16 gallons of distilled spirits which did not bear revenue stamps, in violation of 26 U.S.C.A. § 2803(a); (2) possessing an unregistered distilling apparatus, in violation of 26 U.S.C.A. § 2810; (3) carrying on the business of a distiller without giving bond, in violation of 26 U.S.C.A. § 2833; (4) making and fermenting 500 gallons of mash fit for distillation of alcoholic spirits other than in a bonded distillery, in violation of 26 U.S.C.A. § 2834; and (5) possessing untax-paid liquor and property intended for use in violating the Internal Revenue laws, in violation of 26 U.S.C.A. § 3116.

The case was tried to a jury. Motions for acquittal were denied at the close of the Government's evidence and the defendants' evidence. Appellant was convicted on all counts and sentenced to two years' imprisonment on each of the first four counts and 30 days on the fifth count, all sentences to run concurrently.

The Government's case consisted of the testimony of three Alcohol Tax Unit officers and a Florida State Beverage Department officer. Their testimony showed that appellant Rhodes had been seen placing an empty five-gallon jug and a one-gallon jug into his Buick automobile at one Jesse Townsend's residence in Fort Lauderdale, on July 19, 1954. On July 26, 1954, officer Thompson saw Rhodes and James Miller get into the Buick and drive west from Fort Lauderdale and into a wooded area. There they parked the Buick by a shed, and walked through the woods and into a field grown up in weeds six or seven feet high. Some minutes later Rhodes came back to the car and took two paper sacks of charcoal out of the trunk and returned to the field. One of the two officers observing from a tree the appellant's actions notified other officers in a radio car while the other climbed down, looked over the Buick, finding charcoal spilled on the rear bumper, and then followed Rhodes' path into the field. In the middle of the field, about 100 yards from the Buick, he saw a distillery set up in a clearing. Rhodes was standing beside a 50-gallon drum stirring the contents with a shovel, as Miller poured in a bucket of water. This officer immediately placed the men under arrest and shouted for the other officers. Beside the still, the officers found thirteen 50-gallon drums used as fermenters, and eleven of these were filled with mash which was in a state of fermentation. There were also five bags of charcoal for use as fuel, but the officers found no alcoholic spirits there and the still was not then in operation. Immediately after the men had been arrested and the still destroyed, the officers took the car keys from appellant's pocket and searched the Buick, finding a half-pint bottle of untax-paid moonshine whiskey. The officers informed the two men that they were privileged to remain silent, that any statement they made might be used against them, and that there would be no immunity or reward for any statement they did make. Appellant admitted ownership of the still and said Miller was working for him, and mentioned that they had put mangoes in the mash to make it taste better. Other statements were made also, but the record is unclear whether Rhodes or Miller made them. The officers then drove to appellant's house and Rhodes told them that hidden in a field adjacent to the house there was a five-gallon jug of whiskey, which the officers thereupon found. This container likewise bore no revenue stamps.

The defense offered no evidence except for Miller's testimony, which tended to exculpate Miller as an innocent bystander, but had no bearing on the question of appellant's guilt.

Appellant first contends that the evidence concerning the half pint found in his car should not have been admitted because it was obtained by an unlawful search and seizure. The court below held that the evidence was admissible because it was obtained by a search incident to a valid arrest, and we agree. In the case principally relied on by appellant, Agnello v. United States, 269 U.S. 20, 30, 46 S. Ct. 4, 5, 70 L.Ed. 145, 51 A.L.R. 409, the Supreme Court said:

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted."

There being no question here as to the validity of the arrest, the only controverted matter is whether the search was of "the place where the arrest was made." Appellant's sole argument is that it was of a different place simply because the Buick was some 100 yards away from the exact spot where the arrest was made.

In United States v. Rabinowitz, 339 U. S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653, the Court said:

"What is a reasonable search is not to be determined by any fixed formula. * * * The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. * * * Reasonableness is in the first instance for the District Court to determine."

There it was held that where a defendant was arrested in his one-room office, a search without a warrant of his desk, safe, and filing cabinets for an hour and a half was not unreasonable. It is clear that the majority of the Court thought that no fixed radius limits the "place of the arrest" which is subject to search. On the other hand, Mr. Justice Frankfurter's dissenting opinion in the Rabinowitz case took the position that the area of lawful search should extend only to the person of the one arrested and his immediate physical surroundings; that is, it should extend only so far as is necessary to protect the arresting officer and to deprive the prisoner of potential means of escape, and to avoid destruction of evidence by the arrested person. The rule advocated in this dissenting opinion undoubtedly provides a workable criterion, and defines the area of permissible search more clearly than that of the majority opinion; appellant would evidently have us adopt that criterion here. However, the majority of the Supreme Court has rejected that test and adopted the rule that the area which can be searched is that which is reasonable under the circumstances, and therefore we may not adopt the former.

The Courts of Appeals have generally held that the area of lawful search incident to a valid arrest extends to some considerable radius, at least if the search of a dwelling is not involved. In several such cases it has been said that the constitutional protection against unreasonable searches of "persons, houses, papers, and effects" does not apply to open fields or enclosed grounds or even to a garage detached from a dwelling; e. g., Martin v. United States, 5 Cir., 155 F.2d 563; Carney v. United States, 9 Cir., 163 F.2d 784, certiorari denied 332 U.S. 824, 68 S. Ct. 165, 92 L.Ed. 400.

In Kelley v. United States, 8 Cir., 61 F.2d 843, 86 A.L.R. 338, it was held that when a person was arrested 100 feet from a barn whence he had fled when officers approached, a search of the barn was proper and incidental to the arrest. The court said, 61 F.2d 843, 847:

"It is contended that there was no right to search the barn, it not being the place of arrest, and counsel relies on Agnello v. United States, supra, * * * and * * * argues that the right does

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