United States v. Boyd, 18834.
Decision Date | 04 March 1970 |
Docket Number | No. 18834.,18834. |
Citation | 422 F.2d 791 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dale Acree BOYD, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Dale Quillen, Nashville, Tenn., for appellant.
Robert E. Lee, Asst. U. S. Atty., Nashville, Tenn., Gilbert S. Merritt, Jr., U. S. Atty., Nashville, Tenn., on brief, for appellee.
Before O'SULLIVAN, EDWARDS and PECK, Circuit Judges.
Appellant appeals from a two-count conviction for violating 26 U.S.C. § 5179(a) and § 5173 (1964) by possession of an unregistered distillery. Appellant had waived jury trial, and after denial of a motion to suppress the evidence, the case was submitted to a District Judge for the Middle District of Tennessee on stipulated facts. Conviction resulted in two one-year concurrent sentences.
The search of the house where the distillery was found was based upon a search warrant issued by a United States Commissioner on the following affidavits:
The first appellate issue in this case concerns appellant's contention that the decisions of the United States Supreme Court in the Marchetti,1 Grosso,2 and Haynes3 cases suggest or require the invalidation of the federal liquor tax statutes, which appellant has been convicted of violating, on the ground that their provisions violated appellant's Fifth Amendment rights. This court has squarely rejected this contention in United States v. Whitehead, 424 F.2d 446 (6th Cir.1970).
The second issue presented concerns the validity of the search warrant. Appellant contends that the affidavit lacks the required specificity for probable cause in that in the supporting detail cited therein the date of the surveillance at which the alcohol tax unit investigator smelled the odor of fermented liquor is not supplied. The officer who signed the affidavit and procured the search warrant testified at trial that he had supplied the date of the surveillance in the handwritten draft of the affidavit which he had given the Commissioner, but that the Commissioner had omitted same in typing the affidavit and warrant. Rule 41 of the Federal Rules of Criminal Procedure requires that an affidavit for a search warrant be in writing and signed and sworn to by the affiant. The record in this case does not, however, allow us to assume that the handwritten draft of the affidavit was ever the subject of "oath or affirmation" as required by the Fourth Amendment.
We note, of course, that the affidavit over the name of the investigating officer affirms "there is now being concealed certain property, namely an unregistered distillery, equipment, apparatus and mash fit for distillation which are in violation of the Internal Revenue Liquor Laws." (Emphasis added.) This represents an affirmation of a...
To continue reading
Request your trial-
State v. Novembrino
...valid, it is difficult to see how any function but that of a rubber stamp remains for them. [Id. at 316-17.] Accord United States v. Boyd, 422 F.2d 791 (6th Cir.1970); United States v. Elliott, 576 F.Supp. 1579 (S.D.Ohio 1984); State in Interest of R.B.C., 183 N.J.Super. 121, 443 A.2d 271 (......
-
United States v. Webster
...founded that probable cause to justify the issuance of a search warrant must exist at the time the warrant is issued. United States v. Boyd, 422 F.2d 791 (6th Cir. 1970). The question of the staleness of probable cause depends more on the nature of the unlawful activity alleged in the affid......
-
State v. Lyons
...does not provide a sufficient basis from which a magistrate can infer recency. 2 LaFave, supra, at 397. See, e.g., United States v. Boyd, 422 F.2d 791, 792 (6th Cir.1970) (affirmation of a present violation based on the affiant's observation not sufficient without the date of the observatio......
-
United States v. Dorfman
...stale, for timeliness "cannot be left to mere inference or conjecture." Sgro, 287 U.S. at 211, 53 S.Ct. at 140; see United States v. Boyd, 422 F.2d 791 (6th Cir. 1970); Rosencranz v. United States, 356 F.2d 310, 317-18 (1st Cir. 1966); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (197......