Taylor v. United States

• Decision Date: 12 January 1932
• Docket Number: No. 3209.,3209.
• Citation: 55 F.2d 58
• Parties: TAYLOR v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

55 F.2d 58 (1932)

TAYLOR v. UNITED STATES.

No. 3209.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1932.

R. Palmer Ingram and Helen Elizabeth Brown, both of Baltimore, Md. (Samuel S. Levin, of Baltimore, Md., on the brief), for appellant.

Simon E. Sobeloff, U. S. Atty., of Baltimore, Md. (James M. Hoffa, Asst. U. S. Atty., of Baltimore, Md., on the brief), for the United States.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

Appellant, hereinafter referred to as the defendant, was convicted in the District Court of the United States for the District of Maryland of having possession of intoxicating liquor in violation of the National Prohibition Act (title 2, § 3 27 USCA § 12). The indictment alleged two former convictions against the defendant.

By agreement, the defendant was tried by the court, sitting as a jury, found guilty as charged in the indictment, and sentenced to be imprisoned three months in jail and to pay a fine of $750 and costs. From this judgment this appeal was brought.

A squad of several prohibition agents, attached to the Baltimore office, in charge of one, Ford, deputy prohibition administrator, having had complaints against the property and information to the effect that liquor was being stored there in violation of the laws of the United States, went to a garage located on Curtis avenue, in the city of Baltimore. On arriving at the premises, the officers smelt whisky in the building, which was located in a yard some distance from a house used as a dwelling by the defendant; the garage being on Curtis avenue, and a small alley running along its side. A fence ran from the garage to the house.

After smelling the whisky, the officers testified they looked under and through a crack in the door of the garage and saw a number of cases of cartons, such as, according to the experience of the agents, are used to hold Mason jars, much used for carrying whisky. The officers then entered the garage by a side door, pulling out a staple that held a hasp, and found in the building, contained in the cartons, 732 gallons of whisky. While the officers were searching the building, the defendant appeared and denied that the whisky was his, or that he knew anything about it; but afterwards admitted that it was his. The officers knew that the defendant had been previously convicted of violating the National Prohibition Act.

On the trial, objection was made to the evidence of the officers on the ground that their knowledge was acquired by an unlawful search.

This court has frequently discussed the issue raised by this appeal. In Henderson v. United States (C. C. A.) 12 F.(2d) 528, 51 A. L. R. 420, in an able opinion Judge Parker held the search unlawful because the officers had entered the building, used in part as a dwelling, without sufficient cause. Again in De Pater v. United States, 34 F.(2d) 275, 276, 74 A. L. R. 1413, this court held that the officers did not have sufficient cause to enter the building (a dwelling house). But in that case the court said: "It is too well determined to require argument that knowledge of a crime may be acquired through the sense of smell alone."

In Benton v. United States (C. C. A.) 28 F.(2d) 695, an outbuilding, included in the fence around the dwelling, was entered by the officers after they saw and heard that which led them to believe the law was being violated. The circumstances in the Benton Case are almost identical with the instant case, and this court held the search was justified and lawful.

In the Benton Case will be found a discussion of the authorities. The doctrine laid down in the leading case of McBride v. United States (C. C. A.) 284 F. 416, is approved. In the McBride Case, the court held that it was lawful to arrest a person without warrant, where a crime is being committed in the presence of an officer; that it is lawful to enter a building without a warrant within which such crime is being perpetrated; and that, where an officer is made aware by any of his senses that a crime is being committed, it is being committed in his presence, so as to justify an arrest without a warrant.

Again this court, in the case of Mulrooney et al. v. United States, 46 F.(2d) 995, 996, held a similar search to be lawful. The building in the Mulrooney Case was used in part as a dwelling. The officers, as here, were led by the sense of smell to look through the transom over the door and saw what they took to be a barroom. They then entered and searched the building. The court said: "To the knowledge that a crime was being committed, acquired by the sense of smell, was added the knowledge acquired by the...