Schulte v. United States

• Decision Date: 23 January 1926
• Docket Number: No. 4579.,4579.
• Citation: 11 F.2d 105
• Parties: SCHULTE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

11 F.2d 105 (1926)

SCHULTE v. UNITED STATES.

No. 4579.

Circuit Court of Appeals, Fifth Circuit.

January 23, 1926.

Walter W. Wright, of New Orleans, La., for plaintiff in error.

Wayne G. Borah, U. S. Atty., and Arthur A. de la Houssaye, Asst. U. S. Atty., both of New Orleans, La.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

Fred Schulte was convicted of manufacturing liquor and having in his possession apparatus designed for the manufacture thereof, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.).

He assigns as error the court's refusal to suppress the testimony of two prohibition officers, who went upon his premises without a search warrant and there found where he had been operating a still and manufacturing whisky in one end of a small building, the other end of which was cut off by a partition and used as a garage. This building was separate and apart from defendant's dwelling house. The officers testified that they detected the odor of mash before they entered defendant's premises; that they then went into his back yard, where he was, and where they found a pool of mash; that one of them asked defendant what he was doing there, and he replied that he "was making whisky," and voluntarily took them into the building where the still was. No search of defendant's dwelling house was made or even attempted.

Under these circumstances, proof of the search and seizure was admissible, even though the doubtful concession be made that the officers were trespassers. Hester v. United States, 44 S. Ct. 445, 265 U. S. 57, 68 L. Ed. 898. Defendant relies on Agnello v. United States, 46 S. Ct. 4, 70 L. Ed. 1. In that case it was held that the search of Agnello's premises without a search warrant was unlawful. But the officers invaded Agnello's dwelling house without a search warrant and without themselves having witnessed a violation of the law. However, the right of the officers to enter without a search warrant the home of Alba, one of the defendants in the cited case, and to seize cocaine the illegal sale of which they saw take place while they were looking through a window of Alba's house, was upheld, the court saying: "Such searches and seizures naturally and usually appertain to and attend such arrests." If Alba's home could be entered without a search warrant and cocaine there found be used as evidence, it must necessarily follow that defendant's garage could be entered without a search warrant by the officers who caught him violating the prohibition law.

There is an assignment of error which complains that jurors who heard the testimony of the officers upon a hearing preceding the trial, upon the question whether the officers would be permitted to testify, were allowed to serve on the jury. But this assignment must fall for lack of support in the bill of exceptions, because it is not shown thereby that the jurors heard that testimony. Besides defendant admitted his guilt on the preliminary hearing. His only hope of acquittal was that the search would be held illegal.

The judgment is affirmed.

FOSTER, Circuit Judge (dissenting).

As the majority opinion omits mention of certain undisputed facts which I consider important in deciding the issues presented, at the risk of repetition, it is necessary to state those I deem material.

The officers did not have a search warrant. Matthews, who was evidently in charge, testified, referring to himself and his two associates, that they had received information that a still was located on Schulte's premises; that they went there, and, as they approached, they detected an odor of mash; that they went into the yard and called; that Schulte came from what seemed to be the kitchen; that he (Matthews) met him; that he did not tell him he was a prohibition agent, but told him he wanted to inquire about some of his neighbors; that he then preceded Schulte and pointed out some buildings to him, and asked him who lived there; that he then looked down and saw mash running from the building he called the garage, and questioned Schulte about it.

It was after this that Schulte admitted his guilt and showed them his still, which was not then in operation. The shed or outhouse or garage, whichever it may be termed, and in which the still and mash were discovered, was only a few feet from the main building, eight or ten at the most. The defendant testified that the building was used, not only as a garage, but also as a summer kitchen and a washhouse, but that is immaterial. It may be also inferred that the premises were inclosed by a fence, but that too is immaterial.

It must be borne in mind that we are not dealing here with a case where a garage or other outhouse adjacent to a residence has been entered under authority of a search warrant. The officers did not have a warrant. Nor is it a case where a building entirely disassociated with any habitation is discovered and searched. The building searched was close to Schulte's dwelling and within the yard. And it is not a case involving a search as incidental to a lawful arrest, as is erroneously assumed by the majority opinion. The officers obtained admission to Schulte's premises by subterfuge and stealth. The sole fact that the officers smelled mash while outside of Schulte's premises was not evidence that a crime was being committed, although it has been held in some cases to be sufficient to show probable cause for the issuance of a search warrant. Circumstantial evidence must exclude every other reasonable hypothesis to establish guilt. He might have had the mash for a legitimate purpose. The still was not in operation, so the officers never did see the commission of the crime of manufacturing intoxicating liquor for which Schulte was convicted, and, but for the admissions of Schulte, obtained as a result of the prohibition officers entering his house in force, with the implied coercion of that act, there could have been no conviction. In other words, the officers did not catch him violating the prohibition law until after they had unlawfully entered his premises. This court has heretofore drawn the law distinctly in such cases. Pressley v. U. S. (C. C. A.) 289 F. 477; Giusti v. U. S. (C. C. A.) 4 F. (2d) 703.

The search cannot be justified on the ground that the still and mash were contraband. The provisions of the Volstead Act and the hysteria attendant upon its enforcement have heretofore created some confusion on this score, but the recent case of Agnello v. U. S., 46 S. Ct. 4, 70 L. Ed. 1 (decided October 12, 1925), has clarified this situation. In that case the property seized was contraband, and there was ample evidence to show probable cause of Agnello's guilt; yet the Supreme Court held the search of his dwelling without a warrant to be illegal and the evidence thus obtained inadmissible.

The clear-cut issue presented is whether any of Schulte's rights, protected by the Fourth and Fifth Amendments of the Constitution of the United States, have been violated by federal officers. It may be well to quote from the amendments:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Fourth Amendment.

No person "shall be compelled in any criminal case to be a witness against himself. * * *" Fifth Amendment.

On this point the majority opinion seems to proceed on the theory that the Fourth Amendment applies to a dwelling house only, and, because Schulte's dwelling house was not entered, his rights under the Constitution were not invaded, even though it be conceded the officers were trespassers. Hester v. U. S., 44 S. Ct. 445, 265 U. S. 57, 68 L. Ed. 898, is relied on as authority for this conclusion. That case is not in point, as the facts differ materially from those of the case at bar, and the narrow construction of the amendments is not supported by the decision.

In the Hester Case the material facts were these: The revenue officers, in consequence of information, went towards the house of Hester's father, where Hester lived, and concealed themselves some 50 to 100 yards away. One Henderson drove near the house and they saw...