United States v. Butler, 3291

• Decision Date: 30 July 1946
• Docket Number: 3298.,No. 3291,3291
• Citation: 156 F.2d 897
• Parties: UNITED STATES v. BUTLER et al. SAME v. ONE 1941 MERCURY SEDAN AUTOMOBILE, MOTOR NO. 99A407098, et al.
• Court: U.S. Court of Appeals — Tenth Circuit

156 F.2d 897 (1946)

UNITED STATES v. BUTLER et al. SAME v. ONE 1941 MERCURY SEDAN AUTOMOBILE, MOTOR NO. 99A407098, et al.

Nos. 3291, 3298.

Circuit Court of Appeals, Tenth Circuit.

July 30, 1946.

Robert E. Shelton, Asst. U. S. Atty., of Oklahoma City, Okl. (Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl., on the brief), for appellant.

Sid White, of Oklahoma City, Okl., for appellee Sam Butler.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

An indictment containing two counts was returned against Sam Butler and Raymond Craig. The first count, drawn under 26 U.S. C.A. Int.Rev.Code, § 3321, charged that they removed, deposited, and concealed, and aided and abetted in removing, depositing, and concealing approximately sixty-seven gallons of whiskey, upon which the tax imposed by law had not been paid, with the intent to defraud the United States; and the second count, drawn under 26 U.S.C.A. Int.Rev.Code, § 2803, charged that they had in their possession and under their control whiskey, the immediate containers of which did not bear stamps denoting the quantity of the whiskey and evidencing payment of all internal revenue taxes thereon, as required by law. A libel of information, drawn under 26 U.S.C.A.Int. Rev.Code, § 3720, was filed against a described automobile in which it was charged that Butler used the automobile in the transportation on the highways of sixty-seven gallons of whiskey in containers which did not have affixed thereto stamps denoting the quantity of whiskey and evidencing the payment of the taxes due thereon, as required by law. Motions were filed to suppress the evidence in respect of the whiskey, to dismiss the indictment in the criminal case, and to dismiss the information in the action for forfeiture, on the ground that the whiskey was obtained by an unlawful search and seizure. The evidence adduced upon the motions to suppress was submitted to the court; and, apparently by agreement of the parties, the cases were also tried together to the court on their merits. After hearing all the evidence, the court suppressed the evidence obtained by the search and seizure, dismissed the criminal case, and denied forfeiture of the automobile.

Acting without a search warrant, two police officers of Oklahoma City stopped the automobile outside the city, searched it, and seized the whiskey. It has been held without deviation over a long period of time that evidence obtained through wrongful search and seizure by state officers, acting independently of the federal government, and not in the presence of nor with the participation of federal officers, is admissible in a prosecution in a United States Court, even though the property seized was by the state officers delivered to federal authorities for the purpose of being used as evidence in connection with the prosecution. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Sloane v. United States, 10 Cir., 47 F.2d 889; Aldridge v. United States, 10 Cir., 67 F.2d 956; Edgmon v. United States, 10 Cir., 87 F.2d 13; Taylor v. Hudspeth, 10 Cir., 113 F.2d 825; Ruhl v. United States, 10 Cir., 148 F.2d 173; Butler v. United States, 10 Cir., 153 F.2d 993.

But evidence obtained through such a search and seizure by state officers in cooperation with federal officers, or in the presence of federal officers, should be suppressed when seasonably challenged in an appropriate manner. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. Similarly, where state and federal officers have a general understanding and common practice that the latter may adopt and prosecute in the federal courts offenses which the former discover in the course of their operations, and a prosecution which originated by an unlawful search and seizure by state officers is adopted, the evidence obtained as the result of the search and seizure is to be suppressed...