United States v. Blich, 3079.
| Decision Date | 21 November 1930 |
| Docket Number | No. 3079.,3079. |
| Citation | 45 F.2d 627 |
| Parties | UNITED STATES v. BLICH. |
| Court | U.S. District Court — District of Wyoming |
Albert D. Walton, U. S. Atty., and T. Paul Wilcox, Asst. U. S. Atty., both of Cheyenne, Wyo.
Matson & Swainson, of Cheyenne, Wyo., and C. W. Axtell, of Thermopolis, Wyo., for defendant.
The above-entitled cause, an indictment for violation of the National Prohibition Act (27 USCA), is before the court upon a motion to suppress evidence filed and entertained prior to the case being set for trial, said motion being based upon an alleged unreasonable search and seizure in connection with the transportation of intoxicating liquor.
The facts have been presented upon the affidavit of the defendant and one other in his behalf for the movant and by the affidavit of one federal prohibition agent and the oral testimony of another on behalf of the United States. A summary of the evidence, at least as to the controlling features, is that the two federal prohibition agents received what one agent says in his affidavit was reliable information, and what the agent who testified orally designates as the advice of a reliable informant, that the defendant at a certain time would be making delivery of intoxicating liquor at a certain designated place on the evening in question; that this information was received between 4 and 5 o'clock in the afternoon of the day when such transportation was to take place; that such information was received in Thermopolis, Wyo., which was approximately 35 miles from the designated spot; and that the designated time of transportation was to approximately between 7 and 8 o'clock. The officers thereupon proceeded to this place, discovered the defendant with his wife and children driving a Ford car, passed him by, and afterwards stopped on the roadside awaiting the approach of defendant's car. When it did so approach it was stopped by the officers and an inquiry made as to whether whisky was being transported. Upon a denial of such transportation by the defendant, the officers testify that they discovered upon looking into the automobile a stone jug projecting from a rent in the gunny sack which surrounded it and upon which one of the children sat, and detected an odor of whisky, whereupon the defendant was placed under arrest and the jug of whisky and car confiscated by the officers. The agent who testified orally stated that he had formerly been a police officer in the city of Casper, and that the defendant had been convicted in the police court of that city of violation of the liquor ordinances, although the witness did not testify as to what form of violation was involved in such conviction.
The element around which the principal point in this case revolves relates to the refusal of the prohibition agent while on the stand to reveal the name of his informant who had advised him of the proposed transportation by defendant, upon the ground that it was contrary to the rules of the Department to reveal the name of an informant. Thereupon counsel for the defendant moved to strike out the testimony of the agent concerning the alleged information so furnished, upon the ground that it was insufficient in law to sustain the contention that the search and seizure was made upon probable cause. The witness retired from the stand under the authority of the court and consulted with the district attorney and the Deputy Federal Prohibition Administrator, and the district attorney thereupon announced that, in view of the rule of the Department respecting the disclosure of the name of an informant, they would elect not to have the witness testify as to the identity of such informant. At this point, upon renewal of the motion to strike that portion of the testimony, the court announced that it would not be stricken, but would be considered in the analysis of the entire evidence in the case, as to whether or not such evidence was sufficient to establish a probable cause for the search and seizure.
It is plain, under the pronouncement of the Supreme Court in the case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, that the search and seizure of an automobile without a warrant is justified under some circumstances, but that the doctrine is limited in its scope. In view of the strong dissenting opinion in that case, it would appear that the question was a controversial one among the justices of the high court. Mr. Justice Taft, after discussing various decisions of the Supreme Court construing the Search and Seizure Amendment, at page 149 of 267 U. S., 45 S. Ct. 280, 283, of the Carroll Case, uses the following language:
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