Steeber v. United States, 4428.

• Decision Date: 11 August 1952
• Docket Number: No. 4428.,4428.
• Parties: STEEBER v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

33 ALR 2d 1425, 198 F.2d 615 (1952)

STEEBER v. UNITED STATES.

No. 4428.

United States Court of Appeals Tenth Circuit.

August 11, 1952.

J. Howard Edmondson, Muskogee, Okl. (Harold R. Shoemake, Muskogee, Okl., was with him on the brief), for appellant.

Paul Gotcher, Muskogee, Okl. (Edwin Langley, Muskogee, Okl., was with him on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

This appeal presents the constantly perplexing problem of the reasonableness of a search and seizure in a prosecution for violation of the internal revenue laws pertaining to the manufacture and possession of intoxicating liquors. The appellant, Leonard W. Steeber, was convicted and sentenced in the Eastern District of Oklahoma for operating a nonregistered still, carrying on the business of a distiller without bond, working at a still, and possession of 40 gallons of nontaxpaid whiskey, in violation of Sections 2810, 2833, 2831 and 2803, Title 26 U.S.C. The principal basis for the appeal is the contention that the search and seizure without a warrant were unreasonable, and the incriminating evidence thus obtained was therefore inadmissible.

The Government first takes the position that the appellant had no constitutionally protectable interest in the premises searched or the thing seized, and therefore has no standing to complain of the search and seizure.

On a timely motion to suppress, there was evidence to the effect that on or about February 1, 1951, appellant leased or rented a small dairy farm near Ft. Gibson, Oklahoma, from a Mr. Smith for $50.00 per month. There was some conversation about appellant purchasing the farm and applying the rent on the purchase price, and also some talk of his putting someone else on the place. Appellant paid the rent until May 1, 1951. He did not live on the premises, maintaining his residence in Muskogee, Oklahoma, about ten miles distant.

About 1:30 a. m. on May 6, 1951, the Alcohol Tax Unit investigators went to the Smith Farm, and smelled what to their trained noses was fermenting mash in a barn located on the place. No search or arrest was made at that time. They returned to Muskogee and remained there until about 3:00 o'clock in the afternoon, when they again went to the place. One of the investigators took up a watch at a vantage point about 120 yards from the barn. Another investigator and a constable remained on the highway near the entrance to the place. The investigator on the vantage point could hear what to his trained ears was a still in operation, and observed the appellant and another unidentified person working in and about the barn, stacking barrels and doing other things. Two cars, two women in one and two men in the other, entered the place and stopped near the barn. As the two cars left through the front gate, the investigator from the observation point, communicating with the other two by walkie-talkie, advised them that the cars were leaving and to stop them, and that he was going to the barn. Immediately after turning into the road, the cars were stopped and ordered to turn around. When they hesitated, the officers put one of the men, Mr. Golding, under arrest, saying "Well, you are under arrest, we'll just put you under arrest and take you back up there." While the cars were turning around, one of them sounded its horn several times. When they got back to the barn, no one was there. Upon search of the dairy barn, they found and seized a 110-gallon still, fermenting mash, and 40 gallons of nontaxpaid whiskey.

After the investigators had returned to Muskogee, and about 8:30 in the evening, appellant called Investigator Graves, wanting to know the "best way out of this". After further conversation concerning the search and seizure, appellant stated, according to the investigator, "What about someone else having that lease. I have got a signed contract where I have leased that to another party." The appellant was finally arrested and charged with the offenses the next day.

The protection against unreasonable search and seizure afforded by the Fourth Amendment to the Constitution is personal to the one asserting it, and one who objects to the introduction of evidence based upon an unlawful search or seizure must therefore claim some proprietary or possessory interest in that which was seized and sought...