United States v. Brown

• Decision Date: 08 January 1957
• Docket Number: No. 11331.,11331.
• Citation: 151 F. Supp. 441
• Parties: UNITED STATES of America v. Columbus BROWN.
• Court: U.S. District Court — Eastern District of Virginia

151 F. Supp. 441

UNITED STATES of America v. Columbus BROWN.

No. 11331.

United States District Court E. D. Virginia, Norfolk Division.

January 8, 1957.

L. S. Parsons, U. S. Atty., Norfolk, Va., William F. Davis, Asst. U. S. Atty., Norfolk, Va., for plaintiff.

Sacks & Sacks, Stanley Sacks, Norfolk, Va., for defendant.

HOFFMAN, District Judge.

In a two-count indictment the defendant is charged with unlawfully and feloniously removing, depositing, and concealing 26 gallons of distilled spirits with intent to evade or defeat the assessment or collection of a tax, contrary to the provisions of § 7206(4) of the Internal Revenue Code of 1954, 26 U.S. C.A. § 7206(4), and with having in his possession the aforesaid distilled spirits in containers not having the stamps required by § 5008(b) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 5008(b).

The guilt of the defendant is entirely dependent upon the validity of the search and seizure. The importance of the question requires a consideration of Sutherland v. United States, 4 Cir., 92 F.2d 305, and Kitt v. United States, 4 Cir., 132 F.2d 920, as well as other authorities touching upon the much confused subject of search and seizure under the Fourth Amendment to the Constitution of the United States.

Defendant lived in premises designated as 606 East Freemason Street, Norfolk, Virginia, which is a rooming house containing ten rooms, five of which are on each of two floors. He first rented Rooms 6 and 7 on the second floor. Later, through the medium of taking over other vacated rooms or other motives, defendant paid the rent on Rooms 1, 2, 3 and 5. Rooms 4 and 8 were rented to women and Rooms 9 and 10 were occupied by one Albert Willingham.

Norfolk City Police, having been suspicious of the illegal activities of defendant for some time, arranged to conduct a raid on May 2, 1956. Sergeant Littlejohn, being of the opinion that defendant rented the entire house although correct information could have been obtained from the real estate agent, procured a search warrant designating the premises to be searched as "606 East Freemason Street". Accompanied by other city law enforcement officers, the party went to the premises and heard an argument ensuing on the second floor (rooms 6 and 7). The front door being open, the officers proceeded to the second floor where they met a man coming from the rear of the hallway with a glass of illegal whiskey in his hand. Subsequently it was determined that a partially filled jug of whiskey was in a bathroom used in common by the occupants. An officer knocked on the screen door of rooms 6 or 7 and, when no one answered, the city police broke into these rooms where six persons, including defendant, were found. Sergeant Littlejohn advised defendant of the contents of the search warrant and defendant produced certain keys. Two of the officers descended to room 2 where they found paper cartons, empty jugs with a strong odor of whiskey, and other miscellaneous articles. As the available keys did not fit room 5, one of the officers returned to rooms 6 and 7 where a third officer had remained with the six occupants. The officer remaining in room 6 or 7 had noted that defendant had removed a key from the key ring and hidden same. When another officer returned with information that the available keys did not fit room 5, the officer having remained in the room with defendant insisted upon the production of the hidden key, although no force was used to obtain the same.

As the officers returned to enter room 5, which is available only by walking around the side of the house and entering from a back porch, Sergeant Littlejohn met W. T. McFarland, a special investigator for the Alcohol and Tobacco Tax Unit. McFarland knew nothing of the contemplated raid by the city officers but was investigating the status of a forfeiture proceeding involving an automobile registered in the name of James Brown, 606 E. Freemason Street, Norfolk, Virginia. Littlejohn advised McFarland that the city officers were in the process of making a search of the premises and that Littlejohn had a search warrant. As Littlejohn and McFarland walked to the rear of the premises a city officer was then in the process of opening room 5. The contents of this room were readily observable by anyone within a reasonable number of feet from the door and it revealed a large quantity of burlap bags, empty gallon jugs, tops, corks, and approximately four or five full jugs of illegal whiskey. McFarland had no prior knowledge that the police officers would be at the stated address, nor did he know anything of the nature of their activities or the object of same prior to being advised by Sergeant Littlejohn as to the purpose of the search. It is undoubtedly true that the city police officers were not conducting the search in behalf of the Federal authorities, that no Federal officer had given information to the city police concerning either the premises or the defendant, and that no Federal officer knew of the contemplated search by the city officers. There was no understanding or agreement between the city and Federal officers that the matter might be prosecuted in the Federal Court in the event criminal activities were discovered during the search and seizure, nor was there any understanding that the Federal authorities would have the first opportunity to try any apprehended violators under the Federal law.

After the illegal whiskey was discovered in room 5, Sergeant Littlejohn and Investigator McFarland then discussed what procedure would be followed and whether or not the Federal authorities should take over the prosecution. The city police appeared to be willing for the Federal authorities to prosecute but McFarland, being uncertain as to the status of the matter, proceeded to contact the United States Attorney for advice. The premises in question being only three blocks from the Federal Building, and the raid having been conducted at approximately 1:30 P. M., the United States Attorney personally visited the scene and authorized the issuance of a Federal warrant for the arrest of the defendant.

The whiskey was destroyed by two Federal officers, one of whom had been called by Investigator McFarland after it was determined that the Federal authorities would prosecute, and one city officer assisted. Two automobiles were also seized on the basis of whiskey being found at the premises, but the validity of such a seizure is not presently before the Court.

It is clear that Investigator McFarland's presence at the scene of the search and seizure was inadvertent and not the result of any connivance, agreement or understanding between the Federal and city officers. The pertinent question is whether or not the evidence uncovered by reason of the search and seizure is now admissible in a criminal proceeding in the Federal Court.

The Government did not produce in evidence the search warrant secured by the city officers. This is of little moment as defendant failed to file a motion under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which would have permitted an exploration of this phase of the case prior to trial. In any event, the Court accepts the testimony of Littlejohn to the effect that a state search warrant was procured.

It is next asserted that the search warrant was invalid in that it named the entire premises, whereas the building had at least the appearance of a rooming house. There is merit to this contention as the more recent decisions appear to hold that a warrant describing an entire building is void, when cause is shown for searching only one room or apartment. United States v. Hinton, 7 Cir., 219 F.2d 324; United States v. Diange, D.C., 32 F.Supp. 994. Reliance by the Government upon Malacrauis v. United States, 4 Cir., 299 F. 253, 255, is to no avail as this case would no longer be considered the law under Sutherland, supra. But in Malacrauis, supra, the court did say that the evidence was admissible in the Federal prosecution "even if the warrant was invalid".

Assuming arguendo that no search warrant had been obtained, what rights have the Federal authorities to adopt as its evidence such evidence as may have been illegally obtained by state or local authorities under the peculiar circumstances of this case?

The Sutherland case goes as far as the Fourth Circuit has leaned in concluding against the admissibility of evidence illegally obtained by state officers. As Judge Parker said, in holding that there was a general understanding and general cooperation between state and Federal officers that the latter may prosecute in the Federal courts offenses which the former discover in the course of their operations:

"It is the fact that there was such co-operation and adoption and not the fact that the search was made solely in behalf of the United States which in our opinion is the determining factor; for, whether the arrest, search, and seizure be made solely on behalf of the United States or not, it remains true that `the rights guaranteed by the Fourth and Fifth Amendments may be invaded as effectively by such co-operation as by the state officers acting under direction of the federal officials'". 92 F.2d 308.

The force of Sutherland was...