Shurman v. United States, No. 14919.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BORAH, RIVES and TUTTLE, Circuit
• Citation: 219 F.2d 282
• Parties: Nathan SHURMAN and Louis Chebatt, v. UNITED STATES of America.
• Docket Number: No. 14919.
• Decision Date: 28 February 1955

219 F.2d 282 (1955)

Nathan SHURMAN and Louis Chebatt,
v.
UNITED STATES of America.

No. 14919.

United States Court of Appeals, Fifth Circuit.

January 28, 1955.

Rehearing Denied February 28, 1955.

219 F.2d 283

Julius Lucius Echeles, Chicago, Ill., for appellant.

Cavett S. Binion, Asst. U. S. Atty., Ft. Worth, Tex., Heard L. Floore, U. S. Atty., Ft. Worth, Tex., for appellee.

Before BORAH, RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

Defendants were indicted and convicted of unlawfully obtaining 2047 grains of marihuana on July 22, 1953, in Tarrant County, Texas, in the Northern

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District of Texas, without paying the special tax upon the transfer thereof, they being transferees subject to pay said tax, in violation of 26 U.S.C.A. § 2593(a).¹ Before trial defendant Shurman moved to suppress certain evidence, namely, a quantity of a substance claimed by the Government to be marihuana, alleging that it was seized without a search warrant and without probable cause, in a search of Shurman's automobile by one Naylor, an officer of the State of Texas, made at the instance of, or in concert with, officers of the Federal Government. The trial court reserved decision upon the motion until after the evidence for the Government was presented. Both defendants pleaded not guilty, and the case was tried by jury. Motions of both defendants for judgments of acquittal were made and denied at the close of the Government's evidence and at the close of all the evidence. The jury found both defendants guilty and the trial court imposed sentences of three years' imprisonment on each

The evidence for the Government was as follows: W. E. Naylor, a Texas law enforcement officer, testified that on about July 15, 1953, he received information by telephone from a Federal Narcotics officer named Findley, that Findley was informed and believed a car with a certain license number would be coming from El Paso to Fort Worth carrying narcotics. At about noon on July 22, 1953, Naylor stopped the defendants in a car with that license number and arrested them solely on the basis of the information from Findley. After placing them in the custody of a highway patrolman at a Justice of the Peace Court, he returned to search the car, and found in the trunk thereof two packages of what appeared to him to be marihuana. These packages he later turned over to Federal Narcotics Agent Johnson. Naylor thereafter placed the car in storage in order for it to be confiscated by the Federal Government, and notified Findley of the arrest. He was present when Findley made a thorough search of the car about five o'clock that afternoon. Naylor admitted he had neither a search warrant not a warrant for the defendant's arrest. He identified the wrappings in which the alleged marihuana was found, one of which bore the name and address of a shop in Juarez, Mexico, and the other of which was a Juarez newspaper dated July 21, 1953.

Okla W. Johnson testified that as a Federal Narcotics Agent he had demanded a marihuana order form from the defendants on the day of the arrest, and had asked them if they had marihuana dealers' tax stamps, and that they answered that they had neither. J. W. Spillman testified that he was a Government chemist and that he made microscopic and chemical examinations of the substance turned over to him by Findley and Johnson; that in his opinion it was marihuana; and that the substance was finely cut up stems of the marihuana plant, and also resin and seeds of that plant.

William T. Findley testified, with respect to defendant Shurman's motion to suppress, and outside the presence of the jury, that he was a Federal Narcotics Agent working under-cover in Dallas in July, 1953; that he had purchased marihuana on four occasions in the first two weeks of that month from defendant Shurman; that Shurman told him he planned to go to Mexico the next day to buy marihuana; that Chebatt told him he had a source of heroin in Juarez and was going with Shurman intending

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to buy some; that Findley informed Naylor by telephone that he believed a car with license number HB-2752 would be coming from Juarez or El Paso with narcotics; that he did not ask Naylor to make any arrest; that during the following week he talked with Naylor twice by telephone and believed that they talked about the car; and that to his understanding there was no policy of the Federal Narcotics Bureau to have arrests made in such cases by state police, but that the Bureau keeps constantly in touch with state and city enforcement agencies, not working together, but for the common interest of crime prevention. On this evidence the trial court overruled the motion to suppress

The only witness for the defense was defendant Shurman, who testified that he was an itinerant saxophone player; that he went to Juarez around July 5, 1953, to get a job as musician in a band; that he left Juarez about midnight, July 22, 1953, and drove straight towards Fort Worth; that the automobile was his but that he knew nothing about the alleged marihuana in the trunk of the car; that he suspected that it was planted there by a Juarez cab driver with whom he had had an argument; that he stopped between El Paso and the place of arrest just west of Fort Worth only for gas and to call his wife; and that he did not see or talk with anyone.

Both defendants appeal from the conviction, specifying the following as errors:

I. The court erred in failing to suppress the evidence upon motion properly made, because of an illegal search and seizure in violation of the Fourth and Fifth Amendments.

II. The prosecution failed to prove proper venue and place of the offense.

III. The prosecution failed to prove that a notice and demand for an order form was made by the Collector of Internal Revenue upon the defendants in accordance with 26 U.S.C.A. § 2593(a).

IV. The court erred in refusing to give certain instructions, and in giving certain erroneous instructions.

Although we must reverse the judgment of the trial court on the second ground, we will discuss all of the assigned specifications of error for the guidance of the court on another trial.

I. SEARCH AND SEIZURE:

Two questions are presented here. The first is: Would the search as conducted by the state officers have been illegal if it had been conducted by federal officers? The second is: If the search was illegal, was there such "cooperation" between the state and Federal officers as would proscribe the evidence when later offered in a federal prosecution? It is not necessarily true that if an illegal search is made by state officers the fruits of the search are suppressed when offered in evidence in a federal prosecution. Scotti v. United States, 5 Cir., 193 F.2d 644.

As to the first of these two questions, our recent decision of Rent v. United States, 5 Cir., 209 F.2d 893, we believe to be controlling on the question of the lawfulness of the search by the state officers here. In that case the occupants of an automobile were arrested and the car was taken into custody, locked, and parked overnight in a police parking lot. We held that a search made the next morning without a warrant was unreasonable; even though the officers had grounds which seem as strong as those in the present case to believe there was marihuana in the car,²

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the opportunity after the arrest to obtain a search warrant was a factor to be considered together with those grounds, in determining the reasonableness of the search. So considered, we concluded that the search violated the Fourth Amendment. The lack of a warrant could not be excused, either under the principle of search incident to arrest, the search and the arrest not having been contemporaneous; or under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, because the danger that the automobile might be quickly moved from the locality, basic to the Carroll decision, was lacking under these circumstances.³

In the present case, the car had been left beside the highway after the arrest, and not on a police parking lot; and there was evidence that the trunk of the car would not lock; however, the differences between these facts and those in the Rent case do not seem to us a sufficient basis to apply a different rule here. In the present case, the state officer had the car keys and the car was "not likely to be disturbed", 209 F.2d 897, and this is the same essential state of facts as that in the Rent case. We hold, therefore, that this search was illegal.

But as to the second question, even though the search was illegal, the evidence was nevertheless not inadmissible, because there was not shown to have been participation by federal officers or such cooperation between them and state authorities in making the search, as to prevent the use of the evidence seized by the state officers, in a federal prosecution.

The defendants sought to establish a pattern of cooperation between state and federal authorities, amounting to a custom that state cases would be turned over to federal officers for adoption, to bring this case within the decisions that evidence illegally obtained by state officers where such a pattern is present is not admissible in a federal prosecution.⁴ Such a pattern is not established by the evidence, and in fact the weight of the evidence in the record is against the defendants' contentions. Agent Findley testified that according to his understanding, it was not the Bureau's policy to have automobiles suspected of containing narcotics stopped by the state police. There was no evidence of any tacit understanding to do this between state and federal authorities, although the defense sought by repeated questions to show that there was such an understanding. It was admitted that they "kept constantly in touch" but it was expressly denied at the same time that they "worked together." There was not even any evidence that the majority of...