Smallwood v. District of Columbia

• Decision Date: 26 August 1955
• Docket Number: No. 1660.,1660.
• Citation: 116 A.2d 599
• Parties: Arthur SMALLWOOD, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

Page 599

116 A.2d 599

Arthur SMALLWOOD, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 1660.

Municipal Court of Appeals for the District of Columbia.

Argued July 18, 1955.

Decided August 26, 1955.

Harry J. Ahern, Washington, D. C., for appellant.

Hubert B. Pair, Asst. Corp. Counsel, Washington, D. C., with whom Vernon E. West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, Milton D. Korman and Harry L. Walker, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

This appeal is from a conviction on charges of keeping for sale and selling alcoholic beverage without first having obtained a license to do so. Code 1951, Supp. III, § 25-109.

The evidence disclosed that the police acting undercover had purchased small quantities of whisky from one Mason on several occasions prior to January 30, 1955. On January 29, in an effort to locate Mason's source of supply, officer Somerville offered to buy a half gallon and on January 30 accompanied Mason to premises 207 G Street, S. W. There the officer remained in an automobile while Mason entered and returned with the whisky. On February 13 the officer again accompanied Mason to the same premises and again Mason entered and returned with a quantity of whisky. On February 27 officer McElvane gave officer Somerville eighteen one-dollar bills, the serial numbers of which had been recorded, and instructed Somerville to find Mason and endeavor to purchase a large quantity of whisky at the above-mentioned premises. Either at that time or later in the day McElvane had a warrant of arrest for Mason. Somerville found Mason and proceeded as instructed. When they reached the premises Somerville, as on previous occasions, remained in the automobile. Mason entered and when he returned to the doorway with three large paper bags in his hands, officer McElvane appeared on the scene, identified himself as a police officer, and informed Mason he had a warrant for his arrest. Mason asked if he could read the warrant, and upon receiving an affirmative answer stepped inside the premises. Officer McElvane followed Mason inside and asked from whom he had purchased the whisky. Mason replied that he had bought it from appellant, Arthur Smallwood, who was present. Thereupon Smallwood was searched and seventeen of the one-dollar bills were found on his person. He was questioned and admitted he was operator of the place and was selling corn whisky at $7.50 per gallon. A search of the premises revealed a supply of whisky in a room on the second floor. A key found in the search of Smallwood opened the door to that room. Smallwood was then arrested.

At trial Smallwood objected to any evidence found on the second floor and this objection was sustained, but his objection to any evidence found in the search of his person was overruled. The question presented is whether the search of Smallwood was in violation of the Fourth Amendment to the Constitution.

At the outset we note that while the government suggests that the whisky involved was non-tax-paid whisky, the record is silent on that point. It seems quite clear that the arrest and prosecution were for violation of our local Alcoholic Beverage Control Act, namely,...