United States v. Burkhart, 16016

• Decision Date: 08 July 1965
• Docket Number: No. 16016,16017.,16016
• Citation: United States v. Burkhart, 347 F.2d 772 (6th Cir. 1965)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anderson BURKHART, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harmon TOLLIVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

347 F.2d 772 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Anderson BURKHART, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Harmon TOLLIVER, Defendant-Appellant.

Nos. 16016, 16017.

United States Court of Appeals Sixth Circuit.

July 8, 1965.

Ray C. Lewis, London, Ky., Lewis & Weaver, London, Ky., on brief, for appellants.

George I. Cline, U. S. Atty., Lexington, Ky., James F. Cook, Asst. U. S. Atty., Lexington, Ky., on brief, for appellee.

Before EDWARDS, Circuit Judge, McALLISTER, Senior Circuit Judge, and MACHROWICZ, District Judge.

MACHROWICZ, District Judge.

This is an appeal from a conviction in the United States District Court for the Eastern District of Kentucky on an indictment for the illegal possession and transportation of distilled spirits in violation of Sec. 5601, Chap. 51 of the 1954 Internal Revenue Code.

The appellants urge that they are entitled to a reversal on the grounds of unlawful search and seizure and unlawful entrapment. Motions to suppress the evidence and for a directed verdict were denied by the trial court.

The charges grew out of an investigation by the Alcohol and Tobacco Tax Division of the U. S. Treasury Department of reported illicit whiskey traffic in the Perry, Leslie and Harlan county area of Southeastern Kentucky.

One of the investigators, Donald Hall, acting in an undercover capacity, assumed a fictitious name and identity as a "bootlegger" of "moonshine" whiskey. He was provided with a certain amount of currency, the serial numbers of which were previously recorded.

On March 28, 1962, while driving a car on a public highway in the area, he picked up a hitchhiker to whom he divulged a desire to buy whiskey illegally, without disclosing his true identity. The hitchhiker, one Wayne Riddle, said he knew a person who would probably have some, and arranged a meeting with a third party, Delmar Dehart, but the arrangements failed to produce results.

On March 30, 1962, he again met Riddle and Dehart in accordance with a prearranged plan. He gave Dehart Two Hundred Fifty Dollars ($250.00) of recorded currency with which he was to buy whiskey for him. Dehart then proceeded alone to the residence of appellant Burkhart and there bought forty-eight (48) gallons of whiskey, which he testified were delivered to him by both appellants.

On April 6, 1962, under similar arrangements, Dehart received from the agent Three Hundred Dollars ($300.00) in recorded currency and was asked to buy sixty (60) gallons of whiskey. This time he got from the appellants only six (6) gallons, and he returned to agent Hall Two Hundred Seventy Dollars ($270.00).

Government agents testified they observed both violations from a position near the Burkhart dwelling. On the basis of the events of March 30, 1962, an arrest warrant was obtained on April 6, 1962, for Anderson Burkhart and a John Doe, since the name of the appellant Harmon Tolliver was not known to the agents. At the same time they obtained a search warrant for the premises.

Armed with these warrants, on the evening of April 6, 1962, immediately upon delivery to them by Dehart of the six (6) gallons of whiskey, the officers approached the premises of appellant Anderson Burkhart. When a dog started barking, Burkhart came to the door and opened it. The officers then identified themselves, advised him of the warrant for his arrest, announced that they were placing him under arrest for violating the Internal Revenue liquor laws and advised him of his constitutional rights. They then proceeded to search his trousers pocket and found One Hundred Ninety Dollars ($190.00), of the money which bore the serial numbers corresponding to those of the currency used for the purchase of the whiskey. They noticed under a table four (4) half-gallon jars of whiskey which appellant Anderson admitted were his. They also noticed in plain sight in a small backroom appellant Tolliver lying in a bed. He was also similarly advised that he was being placed under arrest and a search of his trousers pockets disclosed Twenty Dollars ($20.00) of currency bearing the recorded serial numbers.

Riddle and Dehart were indicted with these defendants for illegal possession and sale but were found not guilty by the jury.

The arrest warrants and the search warrants were not produced at the trial, but the United States Commissioner testified that he had issued them and the arresting officers testified that they had them in their possession at the time of the arrest.

The lower Court denied the motion to suppress the evidence, holding that the officers were armed with an arrest warrant, identified both appellants as persons whom they had seen commit a felony a few hours previously or had good probable reason to believe had committed a felony. The Court further held that the search of the appellants' pockets was proper as incident to a lawful arrest, irrespective of the search warrant.

Appellants rely upon the government's failure to present the arrest warrant at the time...