United States v. Costner
| Decision Date | 28 January 1946 |
| Docket Number | No. 10069.,10069. |
| Parties | UNITED STATES v. COSTNER. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James M. Meek, of Knoxville, Tenn. (J. B. Frazier, Jr., U. S. Atty., and James M. Meek, Asst. U. S. Atty., both of Knoxville Tenn., and Clarence W. Bralley, Asst. U. S. Atty., of Johnson City, Tenn., on the brief), for appellant.
Wilbur W. Piper, of Knoxville, Tenn. (Wilbur W. Piper and Hobart F. Atkins, both of Knoxville, Tenn., on the brief), for appellee.
Before HICKS, SIMONS, and MARTIN, Circuit Judges.
Appellee was indicted for violations of Sections 2803(a) and 2913 of Title 26 U.S. C.A. Int.Rev.Code. The indictment in three counts charged him, respectively, (1) with transporting; (2) with possessing; and (3) with concealing, distilled spirits, the containers of which did not bear the requisite Internal Revenue stamps. He entered a plea of "not guilty."
Before the hearing appellee filed a motion to suppress the testimony of Smith and Rudd, Inspectors under the Alcohol Tax Unit, Bureau of Internal Revenue, and of Whaley, Sheriff of Sevier County, Tenn., as to all evidence secured by them at the time of his arrest, on the ground that the officers in shooting at appellee's automobile and forcing him to stop on the highway and in forcibly entering and searching the automobile without a search warrant and finding therein un-tax-paid liquor, made an unlawful and unreasonable search and seizure thereof. It was asserted in the motion to suppress that the only evidence to sustain the indictment was obtained by the unlawful search and seizure of the automobile and its contents in violation of appellee's rights under the Fourth Amendment.
The District Court sustained the motion to suppress, hence this appeal.
At the hearing on the motion, appellee testified that on May 7, 1945, while he was driving an automobile on the highway in Sevier County, Tenn., toward Sevierville, he saw a parked car headed away from Sevierville; that one man was standing by the automobile and that he, appellee, turned his car around and went back up the road; that "they took after me and went to shooting" with a shotgun. He testified that he was two or three hundred yards from the parked automobile when he turned around and they opened fire; that he drove about a mile and that four or five shots were fired before his right rear tire was shot down and the car wobbled over the road and he had to halt. He testified that he got out of the car and ran and was shot in the arm by the Sheriff, who was one of the officers in the car that was chasing him; that the officers exhibited no warrant and that while the chase was going on he did not know that they were Federal officers. On cross-examination he admitted that he had 60 gallons of moonshine whiskey in the car.
Smith testified that he had parked his car in front of the Courthouse in Sevierville and had started to the Courthouse when a fellow came down the road in a car and called to him and told him that "Sharkey Costner" (appellee) would be down the road in a short time with a load of moonshine whiskey; that he had heard arrangements made for the delivery of the whiskey and that appellee was going to Knoxville with it. Smith testified that the informant advised him that appellee would be in a 1937 Ford Coupe, Cocke County license number 46-856; that thereupon, he, Smith, got in his car with Rudd, looked for and found the Sheriff, and asked him to go with them and that the three headed up the Jones Cove Road, one of the main roads into Cosby; that they drove about ten miles real fast, stopped and waited and in four or five minutes saw a car approaching from Cosby and that this was about thirty minutes after he had received the information. Smith further testified that he started his car toward the approaching car, that the latter turned rapidly around but that he, Smith, recognized appellee and the license number of the car.
Smith's account of the chase was that he immediately sounded his siren and that appellee increased speed and headed toward Cosby at a speed of 80 to 83 miles an hour; that he would not stop for the siren and that Rudd seated beside him (Smith), shot the right rear tire of appellee's car with a sawed-off shotgun and that appellee lost control of his car, which went crosswise of the road. Smith testified that appellee and his companion got out of the car when it stopped, and abandoned it; that the agents could see whiskey in the back of the car and found 60 gallons of unstamped moonshine whiskey in half gallon jars. Smith further testified that both men were chased and caught and that appellee was shot in the arm by the Sheriff before he was taken.
Smith further testified that his informant had given him information on prior occasions which had proved reliable; that he imparted the information obtained through the informant to Rudd and the Sheriff. He further testified that the gun used to shoot down the tire was an automatic 12-gauge sawed-off shotgun with a 20½-inch barrel, which carried buckshot, and that the gun belonged to him; that he chased the car for a quarter of a mile before there was any shooting and that he saw the license number long before the tire was shot down.
The Sheriff's testimony was that they had no warrant for the arrest of appellee and no search warrant and that up to the time that they chased the car there was no complaint that appellee had violated the law in his presence.
Rudd confirmed the Sheriff's testimony that they had neither a warrant for appellee nor a search warrant. He further testified they kept the shotgun in the car for purposes of "self-defense or something like that"; that it was carried on a rack below the seat and that he took it off the rack when Costner wouldn't stop for the siren. Rudd was of the opinion that they chased appellee for half a mile and were "most of the time close to him." Rudd testified that when he started shooting he knew who the driver of the car was, though he didn't know to whom it belonged. Asked if there was any necessity for shooting, he replied, "Well, he wouldn't stop and both cars were going at a dangerous rate of speed." Asked why he shot, he answered, "To stop him." He admitted they had no search warrant but that they wanted to stop and search the car.
The evidence does not disclose that the Inspectors made any effort to obtain a search warrant after Inspector Smith had been informed that appellee was transporting un-tax-paid whiskey, but we may assume that the time available for that purpose was insufficient.
In United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877, ...
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