United States v. Birdsong

• Decision Date: 16 July 1971
• Docket Number: No. 30195.,30195.
• Citation: 446 F.2d 325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyree BIRDSONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 325 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Tyree BIRDSONG, Defendant-Appellant.

No. 30195.

United States Court of Appeals, Fifth Circuit.

July 16, 1971.

H. L. Meredith, Jr., Greenville, Miss. (Court-appointed), for defendant-appellant.

H. M. Ray, U. S. Atty., William M. Dye, Jr., Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Before O'SULLIVAN,^* THORNBERRY, and DYER, Circuit Judges.

THORNBERRY, Circuit Judge:

Tyree Birdsong was indicted on three counts of possessing an unregistered distillery in violation of 26 U.S.C.A. § 5601 (a) (1); carrying on the business of a distillery without having given bond in violation of 26 U.S.C. § 5601(a) (4), and possessing non-tax-paid whiskey in violation of 26 U.S.C. § 5604(a) (1). He was tried before a jury, and acquitted of the first two counts, but convicted of the third, possession of non-tax-paid whiskey. On this appeal, Birdsong attacks the trial court's denial of his motion to suppress certain evidence that he contends was seized in violation of his Fourth Amendment rights. As is frequently the case in these search and seizure controversies, the facts are all-important. We therefore recite in detail the circumstances and occurrences surrounding the arrest of Tyree Birdsong and the seizure of his whiskey.

Accepting as we must the credibility decisions and findings of fact of the court below, we have taken our statement of facts from the trial judge's findings announced at the conclusion of the hearing conducted on Birdsong's motion to suppress.

On July 30, 1969, two Federal agents and two State agents investigating an illegal whiskey operation went to a certain house in Sunflower County, Mississippi. On that same day, Officer Krohn had been informed by a reliable person, an informer who had previously given good information to the officers, that Tyree Birdsong, the defendant, was operating a moonshine distillery in this house, which was described to the officers as a vacant house at the dead end of a farm road south of Sunflower County, Mississippi, near the Sunflower River.

The informer told Officer Krohn that Birdsong, the defendant, was operating a still there, and he was being assisted in the operation by another man. The defendant had been known by record and reputation to the Federal officers to be an illegal whiskey operator.

It was in pursuing that information that the officers rode together in a government vehicle down a dead-end road that led only to the house in question. When they stopped at the end of the dead-end road, it was at a point approximately four steps from the back corner of a farm tenant house. There were no signs of life at the house, but the officers immediately detected a strong odor of cooking mash emanating from the premises. They also noted a barrel on the outside containing spent mash.

Almost immediately upon their arrival at the scene and upon detecting the strong odor of cooking mash, two persons, Squire Harrington and his wife, L. B. Harrington, came out the rear door, and Officer Krohn identified himself as a Federal officer, and asked these persons, Harrington and his wife, how many barrels were in the house. The question was repeated when there was no immediate answer, and at that point, Harrington and his wife, after urging from the wife, told him that it was inside, pointing inside the house and that the still in the house belonged to Tyree Birdsong.

At this point, the officers inquired of Harrington and his wife whether anyone was inside the house to which they replied in the affirmative. Certain of the officers then entered the house immediately, and found therein an aged woman, Mrs. Coleman, and also the cooker located in the room which was then in operation with a burner going. Approximately two gallons of moonshine whiskey were observed in the catch pan under the still.

The officers had arrived at the farm property at approximately 11:30 A.M., and after coming out of the house, they had further conversation with Harrington and his wife. In particular, Officer Krohn asked L. B. Harrington about what kind of automobile Tyree Birdsong was operating, if any, and when he was expected to return, if at all. L. B. Harrington advised Krohn that Birdsong had been there that day and not long gone, that he was driving a large, brown, late model car of undesignated make, and that he was expected back at the tenant house before too long.

Thereupon, the officers arranged themselves to await the arrival of Birdsong, the defendant, should he appear. Two of them left in the government vehicle, and two officers concealed themselves in proximity to the tenant house.

At approximately 1:10 P.M., the defendant approached in his brown, 1967 Buick Electra automobile, accompanied by his wife, Mrs. Birdsong.

The officers in the automobile, on their watch away from the house, radioed to the officers concealed nearby the house as to his approach. The government automobile containing two officers followed behind, but did not overtake, the Birdsong automobile. Defendant's automobile continued down the dirt road, deadending at the house, where it pulled up and stopped.

At that point, where the Birdsong automobile stopped, it was approximately seven or eight steps away from where the distillery was located inside the house.

As soon as the Birdsong automobile stopped, Federal agents jumped out from their car which was directly behind the tenant house and approached the Buick vehicle and ordered defendant to get out. They surrounded Birdsong and his wife. Officer Krohn immediately reached inside defendant's automobile, got the ignition key, went back, opened and searched the trunk or rear end of the automobile, finding there seven gallons of moonshine whiskey without stamps attached.

He then instructed his co-officer, Mr. Taylor, to place the Defendant Tyree Birdsong under arrest, and to notify him he was then and there under arrest.

The thrust of Birdsong's argument on this appeal is that the investigators in question proceeded to his house without a warrant on the strength of an informer's tip that would not have passed muster had they sought to obtain a warrant under Aguilar v. Texas¹ or Spinelli v. United States²; entered his house without consent; obtained thereby information pertaining to the possession of a still and statements from the occupants of the house pertaining to Birdsong's ownership of the still; laid in wait for Birdsong, and when he arrived, searched his car, finding non-tax-paid whiskey; and then and there arrested him. In short, Birdsong argues that while the arresting officers may have had enough evidence to establish probable cause to arrest him, the officers obtained that evidence through a series of illegal acts.

The Government, in reply, does not contend that the entry into Birdsong's house was legal. Rather, it invites this Court to focus on the information the arresting officers had prior to entering the house. That information, the Government contends, was enough to give them probable cause to arrest Birdsong, and that being so, their search of his automobile, which the Government contends occurred contemporaneously with his arrest, was legal as a search "incident to an arrest." For information establishing probable cause to arrest existing prior to entry into Birdsong's house, the Government relies on (1) the informer's tip, (2) the officers' knowledge of Birdsong's prior record of, and reputation for, dealing in non-tax-paid whiskey; (3) the strong odor of cooking mash emanating from the house, which the officers detected when they first arrived, and (4) the officers' observation of a barrel of spent mash in the yard when they first arrived. The Government therefore urges us not to consider the entry into Birdsong's house in evaluating the legality of Birdsong's arrest and the search of his car. We accept that invitation.³

Relying only on the information available to the officers prior to their entry into Birdsong's house, we find that the decisional law in this area compels us to conclude that the seizure of Birdsong's whiskey did not violate his ...