United States v. Brookins

• Decision Date: 06 March 1970
• Docket Number: No. 27067.,27067.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward BROOKINS, Defendant Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 463 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Edward BROOKINS, Defendant Appellant.

No. 27067.

United States Court of Appeals, Fifth Circuit.

March 6, 1970.

S. Gunter Toney, Toney & Guarisco, Tallahassee, Fla., for appellant.

Floyd M. Buford, U. S. Atty., Manley F. Brown, D. L. Rampey, Jr., Asst. U. S. Attys., Macon, Ga., Walker P. Johnson, Jr., U. S. Atty., Macon, Ga., for appellee.

Before RIVES, COLEMAN, and MORGAN, Circuit Judges.

COLEMAN, Circuit Judge:

Edward Brookins was indicted for and found guilty of violating 26 U.S.C. §§ 5179(a) and 5601(a) (possession of a still and distilling apparatus set up); 5173 and 5601(a) (carrying on the business of a distiller without bond); 5602 (carrying on the business of a distiller with intent to defraud the government of taxes); 5180 and 5681(c) (working at a distillery upon which no sign was placed and kept); and 5205(a) (2) and 5604(a) (possession of distilled spirits in containers which failed to bear the required internal revenue stamp). The case was tried to the District Judge, without a jury. We reverse.

An agent for the Alcohol and Tobacco Tax Division testified that on January 30, 1968, he, with two other agents, was looking for a whiskey still in the woods, near a creek, about five hundred yards from the Brookins residence. He knew Brookins on sight, and in the hearing on the motion to suppress stated, over objection, that he knew Brookins to be a "major violator" of the liquor laws in that area. This knowledge seems to have been supported by at least one fairly recent conviction for such an offense, as well as upon several arrests which contributed to the unfavorable reputation of the appellant as to such activities. Two of the officers located the still and observed an individual (not Brookins) working thereat. The still was running and its water pump could be heard from a distance of fifty or sixty yards. The odor of mash was detectable for a considerable distance.

The officer posted himself at a point in the edge of the woods and adjacent to a cultivated field, approximately twenty-five yards from the still. From this observation point Brookins was seen walking through the woods, headed in a straight line for the still. He was carrying two small paper bags. He stopped when he saw the agent and was forthwith arrested. One of the paper bags, whether seized before or after the formalities, contained twenty-five corks and a plastic jug spout. The corks found in the bag fitted plastic jugs found at the still site. Eighteen of those jugs had no corks. The second bag contained a lunch. After the arrest of Brookins the other officer went to the still and arrested its operator, who pleaded guilty to the indictment returned against him.

Brookins was conducted to the still yard and given a complete Miranda warning, after which he stated to the officers that he was glad it was all over, that he could not sleep the previous night for fear of impending detection. He admitted that he made the still and its condenser and that he was its owner. He further stated that this was the third time the still had operated. On this particular day approximately eighty gallons of whiskey had been run off. Brookins said that the run had been delayed for about two weeks, due to the delaying effects of cool weather on the fermentation of the mash.

The exact circumstances of the arrest can best be described by quoting the testimony of the arresting agent.

"Q All right now, I\'ll ask you if you saw the Defendant, Ed Brookins, while you were observing the still?

A Yes, I did.

Q And where did you see him?

A I saw him walking through the woods.

Q Now, tell us where he was walking in relation to the still and in relation to where you were?

A He was walking straight towards the distillery and he was coming — I was down beside the still — and he was coming into it from up above me.

Q Was he walking anywhere close to you or coming in the direction where you were?

A Yes, he would have passed right by me.

Q All right, what did you do when you saw Ed Brookins?

A I let him keep walking toward me.

Q Could you tell whether or not he saw you?

A He did and then he stopped walking.

Q How far away from you was he before he saw you?

A Approximately 10 yards.

Q About 10 yards?

A Yes sir.

Q And was that on a line with the distillery?

A Right; that was on line with the distillery and I was down below him.

Q If he had walked in a straight line, would he have gone by the distillery or in the yard, or where would he have gone?

A He would have walked in the still yard.

Q When he stopped and looked at you, what did you do?

A I approached him.

Q And why did you approach him?

A With the intention to arrest him.

Q What did you intend to arrest him for?

A Possessing an unregistered distillery." Emphasis supplied.¹

"Q All right, you knew his house was nearby, did you not?

A Yes, I did.

Q And you knew his reputation for being in the whiskey business, didn\'t you?

A Yes, I did.

Q And you state you could hear the still in operation some 50 yards away when you came up on it?

A That is correct.

Q Now, you walked up to Brookins; what did you say to him or did you see him with anything?

A He was carrying two paper bags.

Q Two paper sacks?

A That\'s correct."

Brookins testified that he was arrested at a point which was 191 yards from the still and also denied making the incriminating statements attributed to him by the arresting officer.

Brookins contended in the court below, and argues here, that the arrest was without probable cause and therefore unlawful, with the corresponding result that his incriminating statements were inadmissible, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Obviously, therefore, the crucial issue is whether there was probable cause for the arrest.

In Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959), the Supreme Court spoke as follows:

"Evidence required to establish guilt is not necessary. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035. And see Director General of Railroads v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 68 L.Ed. 146; United States v. Di Re, supra, 332 U.S. 581, at 592, 68 S.Ct. 222, 92 L.Ed. 210; Giordenello v. United States, supra. 357 U.S. 480, at 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503. It is important, we think, that this requirement be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543. And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. Carroll v. United States, supra, 267 U.S. at pages 155-156, 45 S.Ct. at pages 285-286. This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen. We turn then to the question whether prudent men in the shoes of these officers (Brinegar v. United States, supra, 338 U.S. at page 175, 69 S.Ct. at page 1310) would have seen enough to permit them to believe that petitioner was violating or had violated the law. We think not."

In the same case, at another point, 361 U.S. 101, 80 S.Ct. 168, the Court said:

"That philosophy later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even `strong reason to suspect\' was not adequate to support a warrant for arrest. And that principle has survived to this day. See United States v. Di Re, 332 U.S. 581, 593-595, 68 S.Ct. 222, 227, 228, 92 L. Ed. 210; Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436; Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503. Its high water was Johnson v. United States, supra, where the smell of opium coming from a closed room was not enough to support an arrest and search without a warrant. It was against this background that two scholars recently wrote, `Arrest on mere suspicion collides violently with the basic human right of liberty\'."

This Court has consistently followed the principles enunciated in Henry, Wooten v. United States, 5 Cir., 1967, 380 F.2d 230, cert. denied 389 U.S. 942, 88 S.Ct. 302, 19 L.Ed.2d 294; Nicholson v. United States, 5 Cir., 1966, 355 F.2d 80, cert. denied 384 U.S. 974, 86 S.Ct. 1866, 16 L.Ed.2d 684; Miller v. United States, 5 Cir., 1966, 356 F.2d 63, cert. denied 384 U.S. 912, 86 S.Ct. 1357, 16 L.Ed.2d 365.

Of course, an arrest is not justified by what the subsequent search discloses, Henry v. United States, supra; Johnson v. United States, 333 U.S. 10, 15, 68 S. Ct. 367, 92 L.Ed. 436.

Stated in elementary terms, the rule is that in determining the validity of an arrest on probable cause, the Court is dealing with "probability" and not with the "certainty" that an offense has been or is being committed, Clay v. United States, 8 Cir., 1968, 394 F.2d 281, and each case turns largely on the facts existing at the time of the arrest.

What were the facts known to the officer at the moment he arrested Brookins? He knew that there was a still in operation within five hundred yards of the Brookins home. He knew that at that very moment an unidentified person not Brookins was operating the still. There was a field road which began at the Brookins house and ended at the still, although...