Smith v. United States, 16020.

• Decision Date: 04 March 1959
• Docket Number: No. 16020.,16020.
• Citation: 264 F.2d 469
• Parties: Milton Eldo SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

264 F.2d 469 (1959)

Milton Eldo SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 16020.

United States Court of Appeals Eighth Circuit.

March 4, 1959.

Irvine E. Ungerman, Tulsa, Okl. (Manuel Grabel, Maynard I. Ungerman, William Leiter and R. James Unruh, Tulsa, Okl., on the brief), for appellant.

O. J. Taylor, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief), for appellee.

Before JOHNSEN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellant was convicted, on a jury-waived trial, of having unlawfully attempted to transport intoxicating liquor into the "dry" State of Oklahoma, in violation of 18 U.S.C. § 1262. He was given a prison sentence of four months and a fine of $250.

His appeal presents the single question of whether the trial court erred in holding the search and seizure made against him to be legal, and in overruling on this basis his motion to suppress the evidence obtained thereby.

The search and seizure involved occurred on November 6, 1957, about 4 p. m., at a bridge, on a highway in Missouri, a few miles east of the Oklahoma border. Agents of the Alcohol Tax Unit had set up a road-block for appellant's car at this point and had thus caused him to stop. Thereafter, without a warrant, they opened up the trunk of his automobile and removed from it 26 cases of liquor.

The road-block had been set up hastily, after receipt of a radio communication from other Alcohol Tax Unit agents, giving a description of the car and advising of its visit to and departure from the Ozark Tobacco and Liquor Store, located some four miles from the bridge, just outside the town of Noel, Missouri.

The Liquor Store had on that day been kept under surveillance by two alcohol-tax agents — making observation of its rear with binoculars — because of the reputation which the place had come to have of being a supplier of liquor to "Oklahoma haulers".

The store building had an attached garage in the back, with doors in its opposite walls, so that a car could enter or exit on either side. About 3:20 p. m., the watching agents saw a Lincoln car circle the Liquor Store and drive into the back yard. As it was approaching the garage, someone swung the doors open from the inside, and then closed them again, after the car had entered. A half hour later, the doors were reopened and the Lincoln car came out. It proceeded northward from the store toward the highway that runs into Oklahoma.

The watching agents radioed these facts to another agent, who was stationed in an Alcohol Tax Unit car a short distance ahead and off the road which appellant's car was traveling. As appellant passed the agent's hidden position, the latter drove out onto the road and began to follow the Lincoln car. He observed that the car seemed to be heavily weighted, and further that, although the body of the car was dirty, it was carrying a clean Missouri license plate.

After appellant arrived at the east-west highway and turned onto it in the direction of Oklahoma, the tailing agent radioed ahead to the two agents who set up the road-block. He also switched on his red light and his siren and speeded up behind appellant's car, until it stopped at the road-block. He then went over to the side of appellant's car and asked to see the latter's driver's license. Appellant, with knowledge that the men were Alcohol Tax Unit agents, handed him the license, which showed that appellant was an Oklahoma resident.

The agent then looked over the car exteriorly, to see whether it was equipped with overload springs; found this to be the fact; noted that these were distinctly compressed; and thus confirmed his observation as to a heavy load being contained in the car. He undertook, however, to make further verification of this fact, by testing the give or play of the bumper in relation to the springs, and was unable to obtain any reaction. A glance through the windows had shown the inside of the car to contain nothing, except a spare tire lying on the front seat, so that the weight on the springs manifestly was coming from the trunk of the car.

The agent had called out the word "overload" upon his examination of the springs, and one of the other agents, who had meanwhile asked appellant for the key to the trunk, thereupon unlocked the back end of the car and found the 26 cases of whiskey, which the agents seized.

Was the court entitled to hold that probable cause existed for the Alcohol Tax Unit agents to make the search and seizure in which they engaged?

The answer to the question turns on whether the elements of information or knowledge which the agents had at the time they opened up the trunk of appellant's car and caused the liquor to be exposed were such as would justify a man of reasonable caution in believing that the car contained liquor and that this was being attempted to be transported into Oklahoma. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; Lawson v. United States, 8 Cir., 254 F.2d 706, 708.

Recognizedly, probable cause, as a basis for search and seizure, must consist of something...