Turner v. Camp, 10070.

Decision Date18 December 1941
Docket NumberNo. 10070.,10070.
Citation123 F.2d 840
PartiesTURNER v. CAMP, U. S. Atty., et al.
CourtU.S. Court of Appeals — Fifth Circuit

J. F. Kemp, Clint W. Hager, both of Atlanta, Ga., and J. M. Johnson, of Gainesville, Ga., for appellant.

Lawrence S. Camp, U. S. Atty., and Astor Merritt, Sp. Asst. U. S. Atty., both of Atlanta, Ga., for appellees.

Before FOSTER, SIBLEY, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

This is an original petition in the District Court brought by Turner against Camp as United States district attorney and Johnston as special investigator for the Federal Alcohol Tax Unit. It states that petitioner was the owner of a described truck which was by one Letteer, a federal alcohol tax agent, unlawfully seized and himself unlawfully arrested while driving the truck on the highway in Cobb County, Georgia, on the way to Atlanta in Fulton County. He alleges the officer had no warrant and had no probable cause for believing that any law, State or federal, was being violated. Yet with entire frankness he also alleges "That said truck was loaded with lumber, but so it is that in the very center of said truck-load of lumber there was a trap or compartment in which certain tax-unpaid liquor was stored. That said liquor in said compartment as aforesaid was not visible to anyone observing said truck because the same was completely surrounded on the sides, front and back with lumber stacked on said truck." There is no denial that petitioner knew the contraband liquor was so concealed and that he was in the very act of removing it contrary to law. He alleges that Johnston, the truck having been appraised at less than $500, is advertising it for sale as forfeited under R.S. § 3450, 26 U.S.C.A. Int.Rev.Code, §§ 2807, 3321, and that Camp is intending to present the evidence obtained by the unlawful search to the grand jury. The prayers are in effect that the search and seizure be declared illegal; that Camp and his assistants be restrained from using any evidence obtained by said search; and that Johnston be restrained from disposing of the truck and that it be returned to petitioner. The district judge heard evidence and denied all the prayers, and this appeal followed.

The prayers that the seizure of the truck be declared unlawful, that the proceedings to condemn the truck be arrested and that it be returned to the petitioner, ought to have been denied on the face of the petition. The United States, in whose behalf the seizure was made and the truck is now held, is not a party. The revenue statutes provide a remedy for testing the validity of seizures and forfeitures of property for breaches of them. If it be true as alleged that the seizure was made on evidence unlawfully obtained, the petitioner is here voluntarily alleging the truth of what was wrongfully learned, that his truck was when seized being used for the concealment and removal of tax-unpaid liquors. The United States does not need to rely for forfeiture on what the unlawful search may have disclosed, but may prove its case out of the petitioner's own mouth. That a federal officer may have erred in making an unlawful search does not give the truck immunity if its guilt is otherwise proven. In this proceeding, in which the guilt of the truck is admitted, the court should not order forfeiture stopped and the truck restored.

The prayers for suppression of evidence required a trial and were fully tried. That on a summary proceeding such as this is, brought against the prosecuting officer and those in possession of property held merely to be used as evidence, the legality of a search which disclosed the evidence may be tried and proper relief given, when a prosecution has not been started, and that the judgment may be...

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19 cases
  • Lapides v. United States
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 13, 1954
    ...documents or other tangibles. In re Fried extended the doctrine to an unconstitutionally procured confession. 5 See, e. g., Turner v. Camp, 5 Cir., 123 F.2d 840, 842; In re Fried, 2 Cir., 161 F.2d 453, 6 United States v. Levy, D.C., 99 F.Supp. 529. 7 I think that perhaps I understand how th......
  • Walker v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 3, 1955
    ...do not hold or tend to the contrary. Let me briefly discuss each of them in the order in which it is cited in the opinion. Turner v. Camp, 5 Cir., 123 F.2d 840, is cited merely to the point that every case must be decided upon its own peculiar facts, with which all must agree. In Taylor v. ......
  • Austin v. United States
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 21, 1961
    ...v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Foley v. United States, 64 F.2d 1 (5th Cir., 1933); Turner v. Camp, 123 F.2d 840 (5th Cir., 1941); In re Fried, 161 F.2d 453 (2nd Cir., 1947); Grant v. United States, 282 F.2d 165 (2nd Cir., 1960). The above cases conclusive......
  • United States v. Bell
    • United States
    • U.S. District Court — Southern District of California
    • February 13, 1943
    ...F.2d 519; Shettel v. United States, 1940, 72 App.D.C. 250, 113 F.2d 34; United States v. Salli, 2 Cir., 1940, 115 F.2d 292; Turner v. Camp, 5 Cir., 1941, 123 F.2d 840; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; Bozel v. Hudspeth, 10 Cir., 1942, 126 F.2d 585, 12 IX So.Cal.Law Re......
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