United States v. Barnett

• Citation: 407 F.2d 1114
• Decision Date: 19 May 1969
• Docket Number: No. 18588-18589.,18588-18589.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John C. BARNETT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lee Fred McINTURFF, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

407 F.2d 1114 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. John C. BARNETT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lee Fred McINTURFF, Defendant-Appellant.

Nos. 18588-18589.

United States Court of Appeals Sixth Circuit.

March 7, 1969.

Certiorari Denied May 19, 1969.

John F. Dugger, Morristown, Tenn., for appellants.

Robert E. Simpson, Knoxville, Tenn., (J. H. Reddy, U. S. Atty., Knoxville, Tenn., on the brief), for appellee.

Before CELEBREZZE and COMBS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

Certiorari Denied May 19, 1969. See 89 S.Ct. 1748.

CELEBREZZE, Circuit Judge.

This consolidated appeal comes to us from the United States District Court, Eastern District of Tennessee, wherein John C. Barnett and Lee Fred McInturff, hereinafter Appellants, were tried without a jury and convicted under an indictment charging the possession and transportation of nontax-paid whiskey, 26 U.S.C. § 5205(a) (2) and § 5604(a) (1).

Appellant Barnett was sentenced to serve five years and fined $1,000 for possession. The imposition of a sentence for transportation was suspended, but he was placed on probation for five years to run consecutively to his term of imprisonment.

Appellant McInturff was sentenced to one year imprisonment for possession and since the imposition of sentence was suspended on the charge of transportation, he was placed on probation for a period of two years running consecutively to his imprisonment.

Both Appellants are now challenging the validity of the search and seizure and the subsequent sentencing. Appellant McInturff is also questioning the sufficiency of the evidence to convict him. Appellants' motion to suppress the evidence obtained by the warrantless search of the auto was denied in the District Court.

On February 23, 1967, Agent James R. Beeler of the United States Treasury Department, Alcohol and Tobacco Tax Division, had a prearranged meeting with a known, but undisclosed, informant at 6:15 p.m., in Johnson City, Tennessee. The informant was to have had more information pertaining to a particular situation, but had not been able to obtain it. According to Agent Beeler, the informant then stated, "Well, you can catch J. C. Barnett and Fred Lee McInturff Appellants tonight if you want to because they will be making their milk run'."¹ Agent Beeler was told that Appellants would be making several deliveries to bootlegging joints this same evening, and that at approximately 8:15 p.m. Appellants would be making a delivery of nontax-paid whiskey to Willard "Big-un" Cook's drink joint located on Red Row. There were to be three other stops in addition to the one on Red Row. Street names and exact locations of the different drink joints were given for all but one of the stops.

The informant stated that Appellants were obtaining their moonshine in Unicoi County in Limestone Cove. He related that Appellant McInturff would usually pick it up, for Appellant Barnett, who, besides being tied up during the days, would not be bothered with the nontax-paid whiskey, except on deliveries. Barnett would be driving a 1959 blue and white two-door Chevrolet. Agent Beeler testified that much of the information was already known to him.

Agent Beeler had known this informant for several years. Although not a regularly paid government informant, he did receive money on different occasions. Agent Beeler testified that no arrests had been made as a result of the information, but that it was through no fault of the informant. On two occasions the stakeouts were discovered prior to the deliveries and on the third a still was blown up by the agents. In the latter instance the man purported to have been the operator was found, but no arrest was made.

The meeting between Agent Beeler and the informant lasted for approximately fifteen minutes. Beeler then proceeded across the street to the Alcohol Beverage Commission Office where he met with Special Investigator William H. Lindsey and A.B.C. Agents Cecil Ray, Robert Rhea and Curtis Combs. After relating what he had learned from the informant, Agent Beeler attempted to call United States Commissioner Coleman in Johnson City. After finding the line busy, at approximately 6:45 p.m. the Agents divided into three teams and left for the Red Row area located outside the Johnson City limits.² On previous occasions when Agent Beeler had tried to secure a warrant from Commissioner Coleman after office hours, it had taken approximately two hours to get one issued.

Upon arrival at Red Row Agents Rhea and Beeler set up surveillance in an open field approximately thirty-five yards away from the entrance to Willard Cook's drink joint. Agent Ray and Special Investigator Lindsey were located in a car on Fairfax, which intersected Red Row. Two other City Police vehicles, one containing Agent Combs, were stationed on Millard and Queen Streets. All of the officers and agents were in either walkie-talkie or radio contact.

By 7:15 p.m. the surveillance was completely set up. Shortly thereafter two men drove up and proceeded to Cook's residence. Cook came out and walked over to the drink joint. When he returned to the residence the two men left. It was at this time that the Agents noted the light signals.³

Nothing more occurred until about 8:15 p.m. when an automobile came driving into Red Row with its lights off. The auto proceeded to Cook's drink joint and then backed up to his residence. When the auto stopped, Appellant McInturff, the passenger, got out of the auto, opened the trunk and removed two one-gallon glass jugs which he carried into the house. Although the contents, if any, were not known, the jugs appeared transparent and colorless.⁴

While Beeler was alerting his men to close in, Appellant McInturff returned, empty handed, to the car. Immediately, the car started down Red Row with its lights off. Beeler notified the other teams to be on the lookout for the 1959 Chevrolet. Within minutes the city police spotted the car containing Appellants, and Agent Beeler ordered them stopped.

In a few moments Beeler was at the scene of the arrest and asked Appellant Barnett for the keys to the trunk of the car. Barnett replied, "No, Red, I won't give you the keys, that would be giving my permission to search my vehicle, and I am not giving you my permission." As the Appellants were being driven away in a police car to the police station, the search of the auto was started. After finding that access to the trunk could not be reached through the rear seat, the trunk lid was forced open with an axe. A one gallon glass jug of nontax-paid whiskey was found therein.⁵ It is this evidence which Appellants allege was illegally seized.

There are three questions before this Court: 1) whether there was probable cause to arrest Appellants and then to search the automobile, 2) whether there was substantial evidence to convict Appellant McInturff, and 3) whether the District Court, by imposing cumulative sentences, imposed double punishment for a single offense?

It is Appellants' contention that there was not sufficient probable cause to arrest the Appellants and thus the subsequent search of the automobile was invalid. If, in the alternative, the arrest were valid, the warrantless search was not incident to that arrest.

This Court is of the opinion that prior to the making of the arrest there was legal probable cause to make the arrest and also to search the automobile. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Freedman v. Commissioner of Internal Revenue, 301 F.2d 359 (5th Cir.1962). There can be no doubt that Agent Beeler believed that Appellants were transporting nontax-paid whiskey when he saw them. See Carroll v. United States, 267 U.S. 132, 160, 45 S.Ct. 280, 69 L.Ed. 543 (1928). Although the facts and circumstances known to Agent Beeler "* * * did not constitute proofs of guilt beyond a reasonable doubt, they did represent probable cause for a reasonable man to believe that appellants had committed or were committing a felony." United States v. Johnson, 403 F.2d 1002 (6th Cir.1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1928); Lovell v. Henderson, 386 F.2d 257 (6th Cir.1967).

The facts and circumstances in this case, when considered collectively represent a basis for probable cause. The informant gave a very detailed and accurate description not only of the actual "milk run", but also as to where and when the nontax-paid whiskey would be picked up. Although Agent Beeler did not know whether this information was within the personal knowledge of his informant, coupled with corroboration, reliability, and other factors known to Agent Beeler, it could be used in his formulation of probable cause. Spinelli v. United States, 393 U.S. ___, 89 S.Ct. 584, 21 L.Ed.2d 637 (January 27, 1969); Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Smith v. United States, 123 U.S.App.D. C. 202, 358 F.2d 833 (1966) cert. denied 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967); see United States v. Roth, 391 F.2d 507, 511 (7th Cir.1967). Here we are not confronted with an arrest based solely on an informant's tip. On previous occasions, this informant had given information which had proved to be reliable. United States v. Freeman, 382 F.2d 272 (6th Cir. 1967); see Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L.Ed.2d 327 (1958). Though no arrests were made, Agent Beeler testified that it was due to no fault of the informant. Agent Beeler had known the informant for several years and had no reason to doubt his truthfulness or reliability. United States v. Thacker, 382 F.2d 732 (6th Cir.1967). The corroborating events...