Safarik v. United States

• Decision Date: 11 January 1933
• Docket Number: No. 9505,9506.,9505
• Citation: 62 F.2d 892
• Parties: SAFARIK v. UNITED STATES. HANFELT v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

62 F.2d 892 (1933)

SAFARIK v. UNITED STATES.^*

HANFELT v. SAME.

Nos. 9505, 9506.

Circuit Court of Appeals, Eighth Circuit.

January 11, 1933.

Eugene D. O'Sullivan, of Omaha, Neb. (Charles J. Southard and J. R. Lones, both of Omaha, Neb., on the brief), for appellants.

Edson Smith, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and Lawrence I. Shaw, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

GARDNER, Circuit Judge.

Appellants were jointly indicted in an indictment which contains four counts. The first count charged a conspiracy to possess, to transport, and to sell intoxicating liquor in violation of the National Prohibition Act; the second charged transportation of 150 gallons of alcohol; the third charged possession of 150 gallons of alcohol in an automobile; and the fourth charged possession of 114 gallons of alcohol in a chicken coop. All the offenses were charged as having been committed by the defendants on November 29, 1929, on the premises at 1107 Fort Crook boulevard, Sarpy county, Neb. They were convicted on the first, third, and fourth counts, and acquitted by direction of the court on the second count. From the judgment and sentence entered on the verdict, defendants prosecute this appeal, alleging error substantially as follows:

(1) That the court erred in overruling their motion to suppress evidence alleged to have been secured by reason of an unlawful search and seizure.

(2) That the evidence on count 1, the conspiracy count, was insufficient, and that the instruction of the court regarding the conspiracy count was erroneous.

(3) That the evidence on counts 3 and 4, charging, respectively, the possession of 150 gallons of alcohol in an automobile, and 114 gallons of alcohol in a chicken coop, was insufficient.

(4) That the court erred in receiving testimony that at the time of his arrest a pistol was found in the pocket of the defendant Safarik.

(5) That the court erred in receiving in evidence on the trial of the cause their motion to suppress the evidence.

(6) That the court erred in refusing to admit in evidence their Exhibits 6, 7, and 8, and in striking out testimony proffered by them relative thereto.

On a former appeal we reversed the judgment of the lower court and ordered a new trial because of the error of the court in admitting certain hearsay testimony. Hanfelt v. United States (C. C. A.) 53 F.(2d) 811.

Defendants submitted a motion to suppress certain evidence which they anticipated would be offered against them, and supported that motion by the following evidence:

On November 28, 1929, Ralph W. Jones, a federal prohibition agent, received an anonymous telephone call advising him that in the back end of the garage behind the house at 1107 Fort Crook boulevard there was stored a supply of alcohol belonging to the defendant Safarik, and that the informant had personally seen the alcohol there. Prior to that time this agent had received other anonymous telephone calls and letters purporting to give information as to violations of the Prohibition Act, and had generally found information of that character reliable. The agent knew defendant Safarik, and knew that he had been convicted for violation of the liquor laws. This information Jones imparted to all the other agents who participated in the challenged search and seizure in this case.

In the evening of November 28, 1929, Prohibition Agents Jones, Thompson, and Zersen drove to the vicinity of 1107 Fort Crook boulevard and, with the aid of a flash-light, two of these agents looked through the window on the west side of the chicken coop, and observed therein a pile of rectangular, bright-colored tin, gallon cans without labels; that these cans were those regularly used in the vicinity of Omaha in the bootleg alcohol trade. The agents estimated that there were about 300 of these cans, which were piled against the south partition and east wall of the chicken coop. There is a dwelling house at 1107 Fort Crook boulevard, and another dwelling house to the west.

In the forenoon of November 29, 1929, these prohibition agents returned to 1107 Fort Crook boulevard, and two of them went into the chicken coop, examined a can of alcohol, seized four of the cans, and took them into the agents' car. Two of the agents went into the house and talked with a woman residing there. Then leaving the premises, these agents returned to the neighborhood about 1 o'clock in the afternoon of that day, three of the officers remaining in an automobile which they parked across the boulevard, northeast of 1107. One of them was admitted to the dwelling house to the east of 1107, and kept a lookout from an upstairs window. Between 2 and 3 o'clock in the afternoon, this agent saw a car drive into the yard at 1107, and a man got out, whom he recognized as the defendant Safarik. He had known Safarik for about two years, knew he had been convicted for violations of the National Prohibition Act, and had received information that Safarik handled alcohol and whisky in large quantities. The agent observed Safarik get out of the car and go into the chicken coop, then go to the house and return to the chicken coop with another man who lived in the house, and then drive away. This agent reported to his associates what he had observed, and was then joined by one of the other agents, and they returned to watch from a second-story window of the house east of 1107.

A little after 7 o'clock in the evening, these two agents on watch saw a large car drive into the yard, observed two men get out of it and go down to the chicken coop. It was dark at that time, but there was snow on the ground and the lights were shining from the windows of the house west of 1107. This car parked about fifteen or twenty feet northeast of the garage, and about thirty-five feet from the chicken coop. The two men who went to the chicken coop were then observed carrying packages from the chicken coop and loading them into the car. The agents who were watching from a window of the house on the adjoining property then went outdoors and watched the men load the car with these cans. One agent recognized Safarik. When the light reflected on the packages that were being carried, the agents knew that they were the size of five one-gallon tin cans tied together, and Agent Forsling, who had had eight years' experience as a federal prohibition agent and had become familiar with containers of alcohol, knew that most bootleg alcohol in the vicinity of Omaha was contained in such cans, and he was able to identify these containers as alcohol cans, entirely disregarding anything he had seen in the chicken coop prior to his watching there that night. The agents could tell that the cans were full by the deadened noise they made when the men carrying them set them down in the car. When the watching officers thought the men had the car about loaded, one of them gave a flash-light signal to the other agents stationed in the automobile across the street, who then drove their car into the yard. Defendant Safarik ran south and was pursued and arrested. Hanfelt was arrested while at the car.

After arresting the two defendants, the agents seized the 150 gallons of alcohol in the car, and then entered the chicken coop and seized the 110 gallons of alcohol there.

The defendants had a lease on the garage and chicken coop, and had an easement which entitled them to ingress and egress over the driveway connecting the garage and the chicken coop with the street. They had no lease on the lot, nor did they have an exclusive right to the use of the driveway.

The court suppressed as evidence the four cans taken from the chicken coop on the first search, but overruled the motion as to the cans seized at the time of the arrest; and on the trial no evidence was received with reference to the four cans seized before the arrest, nor was any evidence admitted as to the first entry and seizure. We need not, therefore, consider the facts and circumstances connected with the first search and seizure, but direct our inquiry to the refusal of the court to suppress as evidence the property seized at the time of the defendants' arrest.

When the agents passed onto these premises, they did not thereby trespass upon nor invade any property belonging to or in the possession of defendants. They leased only the garage and chicken coop. Immunity from unreasonable search and seizure is a personal right, and it was no concern of defendants that the government agents were trespassing upon the property of some other person. Graham v. United States (C. C. A.) 15 F.(2d) 740; Coon v. United States (C. C. A.) 36 F.(2d) 164; Simmons v. United States (C. C. A.) 18 F.(2d) 85; United States v. Gass (D. C.) 14 F.(2d) 229; United States v. Gass (D. C.) 17 F.(2d) 996; United States v. Mandel (D. C.) 17 F.(2d) 270; McShann v. United States (C. C. A.) 38 F.(2d) 635; McMillan v. United States (C. C. A.) 26 F.(2d) 58; Rosenberg v. United States (C. C. A.) 15 F.(2d) 179. They neither owned, leased, controlled, occupied, possessed, nor had any interest in the lot upon which these agents entered except only the garage, chicken coop, and the right of ingress and egress over the driveway.

If we assume that the first seizure, as held by the lower court, was unreasonable, it does not necessarily follow that what was done in the matter of that search and seizure rendered the balance of the intoxicating liquor forever immune from search and seizure. McGuire v. United States, 273 U. S. 95, 47 S. Ct. 259, 71 L. Ed. 556; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A. L. R. 1426; United States v. Lee, 274 U. S. 559, 47 S. Ct. 746, 71 L. Ed. 1202.

While no evidence obtained as the result of the first...