Stark v. United States

• Decision Date: 14 November 1930
• Docket Number: No. 8793.,8793.
• Citation: 44 F.2d 946
• Parties: STARK v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

44 F.2d 946 (1930)

STARK v. UNITED STATES.

No. 8793.

Circuit Court of Appeals, Eighth Circuit.

November 14, 1930.

Grenville P. North, of Omaha, Neb. (Harold P. Caldwell, of Omaha, Neb., on the brief), for appellant.

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

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

In this case the appellant, hereinafter referred to as defendant, and his brother, Arthur S. Stark, were indicted in an indictment of five counts, the first charging the unlawful making of mash not on the premises of a duly authorized distillery; the second, the unlawful fermenting of mash not on the premises of a duly authorized distillery; the third, the unlawful separating spirits from mash, the defendants not being authorized distillers; the fourth, the unlawful carrying on of the business of distillers with intent to defraud the United States of the tax on thirty gallons of spirits; and, the fifth, charging the defendants with the unlawful possession of property designed for the manufacture of intoxicating liquor, intended for use in violation of title 2 of the National Prohibition Act (section 25 27 USCA § 39).

Before indictment, complaint seems to have been filed before a United States commissioner, presumably charging these defendants with the five offenses for which they were later indicted. While the matter was pending before the United States commissioner, the defendants interposed a motion to suppress and quash the evidence to be produced against them, on the ground that it had been obtained in violation of the Fourth Amendment to the Constitution of the United States and section 6 of the act supplemental to the National Prohibition Act (18 USCA § 53). On the hearing before the United States commissioner oral testimony was submitted by the government and by the defendants, as well as an affidavit of the defendant Emil J. Stark. It does not appear whether the commissioner sustained the motion to suppress or not, but it is to be inferred that the motion was sustained because the complaint was dismissed. After the return of the indictment and before trial, a motion to suppress, to which was attached a transcript of the testimony submitted before the United States commissioner, was brought on for hearing. In addition to the transcript of the testimony submitted to the commissioner, the court heard oral testimony and denied the motion, to which denial the defendant excepted.

On trial Emil J. Stark was convicted on all counts, but as to the defendant Arthur S. Stark the jury disagreed. From the judgment and sentence entered against the defendant Emil J. Stark, he has appealed to this court. The grounds on which he assails the conviction are: (1) That the trial court erred in overruling his motion to suppress the evidence claimed by him to have been secured in violation of the Fourth Amendment to the Constitution of the United States, and (2) in admitting in evidence, over his objection, the evidence so secured. (3) It is also urged that the evidence is insufficient to sustain the judgment of conviction, but this is bottomed on the contention that the testimony introduced over his objection was improperly received in evidence, so that the controlling question is whether or not the court erred in overruling his motion to suppress and in admitting the evidence secured by the search and seizure.

The evidence introduced on the motion to suppress was sufficient to warrant the finding of the following facts: Prohibition agents had received information that there was a still being operated near the old river bed of the Elk Horn river, about twenty-five miles west from Omaha, Neb. On the morning of February 11, 1929, five prohibition agents were searching for such a still. The weather was cold and there was some snow on the ground. These agents observed Arthur S. Stark, codefendant and brother of the appellant, walking along the river bed, and, after observing his movements for some time, two of the agents accosted him, while two others passed on to a field in the direction he had been going before he had observed the agents. When first observed he was carrying a package, which he placed in a tree, and, when later examined, it was found to contain a lunch. After walking some three hundred yards, the two advancing agents observed tracks leading up to the south bank of the old river bed. Before they reached the bank, they smelled the odor of fermenting mash, and on reaching the top of the bank they discovered a cave. The top of the cave was even with the ground, and was so constructed that it could not be seen by any one until he got up to it. The roof of the cave was covered with dirt, so that it looked like the field. There were two square trapdoors opening into opposite corners of the cave. These doors were open. One of these advancing agents went to one of the doors, and the other went to the other door. Looking down through the door into the cave, each of these officers saw a large still in operation and the defendant Emil Stark in the cave, stooping over, getting some liquor from where it came out of the coil. One witness testified:

"I went up to the northwest opening and looked in and saw a large still in there. It was running in full operation, and Emil Stark was in the cave, stooping over, getting some liquor from where it came out of the coil."

The agents accosted Stark, placed him under arrest, and ordered him to come out of the cave. He told these officers that he had started the still that morning; that he had set the mash about two weeks before; that the still was his; that nobody else had anything to do with it; that the land did not belong to him; that the man who owned the land did not know that he was operating a still on it. There was no house on the land. The cave was in an open field. No search was made of the cave until the defendant was placed under arrest, when, as incident to the arrest, a search of the cave was made, and there was found therein a 150-gallon still, 750 gallons of mash, 30 gallons of whisky, a quantity of gasoline, and various articles or utensils belonging to the distilling equipment. There was no residence building within half a mile of the cave. The cave was one hundred yards or more from the nearest part of the fence which inclosed the field. The defendant had an oral lease for the premises. He did not take the witness stand, either in support of his motion nor on the trial, but he filed an affidavit in support of his motion in which he stated that, "I cooked my meals and ate them in said house, and generally used the same for a place to live in, and generally used the same as my home." No household furniture and no bed or bedding were found in this cave. The defendant Arthur S. Stark was, when overtaken by the officers, carrying a lunch toward this cave, and, when searched, there was found in his pocket two table forks. These prohibition officers had no search warrant authorizing them to search the premises in question. There was other evidence introduced by the government in support of the charges contained in the indictment, but, in our consideration of the motion to suppress, we are limiting our attention to the testimony produced on that issue. And, first, we may say that there was no evidence produced sustaining the contention now made that this cave ever constituted the home of the defendant; in fact, one of the witnesses produced by defendant in support of his motion testified that the defendant lived about a mile away, at the home of Seimans Ziemers. The claim that this cave constituted a home appears still more preposterous if the other evidence produced at the trial be given consideration.

The Fourth Amendment is in part as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Constitutional provisions for the security of person and property are to be liberally construed, and "It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 535, 29 L. Ed. 746; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647. This is true regardless of whether the defendant be guilty or innocent of the offense charged. It seems to be the contention of the defendant that, regardless of whether this cave can be considered his home, the search was violative of his constitutional rights because he had a lease of the twenty acres on which this cave was located, and hence that any one passing to this cave must of necessity be a trespasser, and that the entire premises were protected from search by reason of his lease thereof. This contention is clearly untenable. The protection accorded by the ...