United States v. Braggs

Decision Date23 May 1951
Docket NumberNo. 4202.,4202.
PartiesUNITED STATES v. BRAGGS et al.
CourtU.S. Court of Appeals — Tenth Circuit

Robert E. Shelton, U. S. Atty., Oklahoma City, Okl., for United States.

Sid White, Oklahoma City, Okl., for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

PHILLIPS, Chief Judge.

This is a proceeding instituted by the United States for the forfeiture of an automobile on the ground it had been used to remove and conceal unlawfully nontaxpaid whiskey. Gertie Braggs filed an intervening petition in which she set up that she was the owner of the automobile and prayed that it be surrendered to her.

The evidence of two police officers adduced at the hearing established the following facts: On February 17, 1950, about 4:30 a.m., the officers were cruising northerly on Grand Boulevard in Oklahoma City, Oklahoma, in a police car. When they came to the southeast corner of Lincoln Park they observed the automobile proceeding out of the park in an easterly direction. Its lights were off and they suspected it was a stolen car. They drove alongside the automobile and signaled with their police siren for the driver to stop. Instead of stopping, the driver of the automobile fled. The police officers pursued him. During the pursuit the automobile at times reached speeds in excess of 80 miles per hour. After the pursuit had continued for about six miles, a tire on the automobile blew out and it ran into an embankment. When the police officers came up they saw Clifford Braggs in the automobile, and as they approached the automobile they detected a strong odor of whiskey. They ordered Braggs out of the automobile and placed him under arrest. Immediately thereafter, they searched the automobile and found therein a number of half-gallon jars containing nontax-paid whiskey and some broken jars. Charges of exceeding the lawful speed limit, vagrancy, and unlawful possession of whiskey were filed against Braggs in the city court. He was convicted and a fine was assessed on each charge.

The officers did not report Braggs' possession and transportation of nontax-paid whiskey to the Federal Alcohol Tax Unit and they had no instructions so to report such violations.

Whether the city park was within or without the territorial limits of Oklahoma City was not clearly established. There was proof, however, that the park belonged to the city and that city police officers provided police protection for the park. The trial judge found that there was a tacit agreement or understanding between the county and city officers and the Federal Alcohol Tax Unit that where there was an unlawful search and seizure by county or city officers, the case would be turned over to the Alcohol Tax Unit for prosecution. There was no evidence whatever to support that finding. The court stated that he took judicial notice of such facts.

The court found further that the search of the automobile was unreasonable and unlawful and denied forfeiture. The United States has appealed.

When Braggs proceeded out of the park onto the highway, with the lights on the Lincoln automobile turned off, he violated 47 Okl.St.Ann. § 131. When he proceeded at a speed in excess of 55 miles an hour he violated 47 Okl.St.Ann. § 121.3(a) and (c). The transportation of the whiskey by Braggs from the park to a point on the highway constituted a violation of 37 Okl. St.Ann. § 1.1

11 Okl.St.Ann. § 574 provides that a chief of police shall at all times have power to make an arrest without process in all cases where an offense against the laws of the state or of the city shall be committed, or attempted to be committed, in his presence. 11 Okl.St.Ann. § 575 provides that policemen of a city shall have the same power to arrest offenders against the laws of the state or of the city, where the offense is committed, or attempted to be committed, in their presence. In Oklahoma a policeman is a state, rather than a city officer.2 It follows that the policemen had the right to arrest Clifford Braggs without a warrant.3

When the police officers approached the automobile they detected the odor of whiskey. Immediately after they had arrested Braggs, they searched the car as an incident to that arrest and found therein the nontax-paid whiskey. The officers were clearly authorized under the statutes of Oklahoma to make the arrest without a warrant, because at least two public offenses against the laws of the state were committed in their presence. The right to search a person lawfully arrested while committing a crime, and to search the place where the arrest is made is well established.4 The fact that the whiskey seized was not related to the...

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7 cases
  • United States v. Abel
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 11 Julio 1958
    ...among the four classes of items properly subject to seizure.11 Cf. Kelly v. United States, 5 Cir., 1952, 197 F.2d 162; United States v. Braggs, 10 Cir., 1951, 189 F.2d 367. Similarly, the papers taken from Abel's person were subject to seizure, for it is clear that they were the "instrument......
  • USA v. Sawyer
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 8 Junio 2004
    ...and (3) when an officer is serving an arrest warrant. Id., 1977 OK CR 1, ¶ 14, 560 at 203, 560 P.2d 200, citing United States v. Braggs, 189 F.2d 367 (10th Cir.1951) (hot pursuit); 11 O.S.2001, § 27-113 (service of arrest warrant "any place within this state"); 11 O.S.2001, § 34-103 (reques......
  • Andersen v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 21 Septiembre 1956
    ...v. United States, 10 Cir., 1947, 163 F.2d 325, 327; United States v. O'Brien, 7 Cir., 1949, 174 F.2d 341, 346; United States v. Braggs, 10 Cir., 1951, 189 F. 2d 367, 369; Johnson v. United States, 5 Cir., 1953, 207 F.2d 314, 321, certiorari denied, 1954, 347 U.S. 938, 74 S.Ct. 632, 98 L.Ed.......
  • McIntire v. United States, 4948.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 28 Febrero 1955
    ...U.S. 145, 151, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 94 L.Ed. 653; United States v. Braggs, 10 Cir., 189 F.2d 367, 369; Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145. In the case last cited the court said: "The rig......
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