Thompson v. United States

• Decision Date: 18 October 1927
• Docket Number: No. 2624.,2624.
• Citation: 22 F.2d 134
• Parties: THOMPSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

22 F.2d 134 (1927)

THOMPSON v. UNITED STATES.

No. 2624.

Circuit Court of Appeals, Fourth Circuit.

October 18, 1927.

J. Raymond Gordon, of Charleston, W. Va., for plaintiff in error.

B. J. Pettigrew, U. S. Atty., of Charleston, W. Va.

Before PARKER, Circuit Judge, and SOPER and ERNEST F. COCHRAN, District Judges.

SOPER, District Judge.

The plaintiff in error, who was defendant below, was convicted of the unlawful possession of intoxicating liquor at her private dwelling, No. 3 Straughan Court, Charleston, West Virginia, contrary to section 3 of title 2 of the National Prohibition Act (41 Stat. 305, 308 27 USCA § 12).

Certain assignments of error are directed to rulings of the District Court on questions of evidence, and to the refusal of the court to grant certain instructions offered by the defendant relating to possession of intoxicating liquor. We find no error in the action of the court in these particulars; nor is it necessary to discuss them, for the case turns on the character of the search of the defendant's premises by which the liquor was found. In our opinion the search was illegal, and as there was no evidence of unlawful possession, except that obtained by the search, a motion of the defendant for a directed verdict should have been granted.

The legality of the search was first questioned by the defendant in a petition filed before the jury was sworn, asking that the United States be restrained from the prosecution of the defendant, and that the evidence secured by the search be excluded, because the defendant's premises were searched by I. A. Taylor, a prohibition agent, without a search warrant. No oral testimony was taken in connection with the petition, but the government was permitted, over the objection of the defendant, to file an affidavit of one Boyd Riley that during the month of August, 1926, he had purchased one gallon of liquor from the defendant's husband, W. H. Thompson, of No. 3 Straughan Court. Conceding the allegations of the affidavit, the search was nevertheless not justified under the federal law, for the use of the premises for the sale of intoxicating liquor was not shown. The court, however, overruled the defendant's petition and proceeded with the trial.

It is well settled that the effect of the provisions of the Fourth Amendment to the Constitution of the United States, of section 25 of title 2 of the National Prohibition Act (27 USCA § 39), and of title 11 of the Espionage Act of June 15, 1917 (40 Stat. 228 18 USCA § 611 et seq.), is to forbid the search of a private dwelling by a national prohibition agent without a search warrant, and to require that a search warrant shall not issue to search a private dwelling, unless it is being used for the unlawful sale of intoxicating liquor. The government does not contend that the search in this case was such as would be lawful, if conducted by a federal prohibition officer, but asserts, that although Taylor was present, the search was not conducted by him, but by one S. V. McCormick, a state constable, who had procured a search warrant from a state magistrate. The record fails to show, either that the warrant was supported by evidence indicating a prior sale on the premises, or that it was issued by a court of record. The warrant was therefore of no avail, since it complied neither with the provisions of section 25, title 2, of the Prohibition Act, nor with section 1 of title 11 of the Espionage Act (18 USCA § 611). Singleton v. U. S. (C. C. A.) 290 F. 130.

But the government says that, since the raid was in charge of a state constable, it was not subject to federal requirements, and was not invalidated by the presence or participation of a federal prohibition agent. It has been held in this circuit and elsewhere that evidence of the unlawful possession of intoxicating liquor procured by state officers is admissible in a federal trial, although what they did in procuring it would have constituted...