United States v. Di Corvo

• Decision Date: 30 March 1927
• Citation: 37 F.2d 124
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES v. DI CORVO et al.

37 F.2d 124

UNITED STATES v. DI CORVO et al.

District Court, D. Connecticut.

March 30, 1927.

John Buckley, U. S. Atty., and John A. Danaher, Asst. U. S. Atty., both of Hartford, Conn.

Thomas J. Spellacy and William E. Egan, both of Hartford, Conn., for defendants.

THOMAS, District Judge.

After hearing had on the motions to exclude and suppress evidence and to return seized property, testimony was taken in support of the allegations of fact set forth in the petition. Before proceeding with a discussion of the law applicable to the case, it is important to first state the facts found from the evidence.

On November 12, 1926, certain prohibition agents came upon a building located on what is known as the "Nesbit Farm" in Clintonville, and there seized certain stills, drums of alcohol, and other paraphernalia used in the distillation of alcohol, and thereupon arrested the defendants, who were found upon the premises.

The officers had no search warrant. The seized articles were turned over to the Marshal and are now in his custody.

The Nesbit farm covers about 160 acres. Just how many buildings are on this farm does not accurately appear, but the photographs in evidence show several main buildings with certain other outbuildings in proximity to each other. About 70 feet from the highway is the farm dwelling house, a substantial two-story frame structure. About 150 feet from the dwelling house and about 200 feet from the highway, which curves away at this point, is a one-story and attic structure hereinafter called the "shed." About 40 feet easterly of this shed and about 230 feet from the highway there is another one-story and attic structure hereinafter called the barn. The barn faces westerly, and the entrance to the barn is effected through a sliding door which faces the shed. There are no windows in the barn as one approaches from any southerly quarter, save one in the gable near the roof. There had been a window on the southerly side some 12 to 15 feet from the ground which had been boarded up. I find, therefore, that the interior of the barn was nowhere visible from the public highway. The farm house, the shed, and the barn are part of a group of various farm buildings, which, for our purposes, require no further description. A wire fence, supported by wooden posts, follows the contour of the highway and incloses the property.

On November 12th the prohibition agents proceeded in an automobile until they arrived at a point about 200 feet from the barn. Here they stopped for about 15 or 20 minutes and observed a man going in and coming out of the door. Thereupon they approached up a private roadway in the direction of the barn, to a point about 50 feet from the barn, where they observed 5-gallon tin cans and smelled the odor of alcohol. I now quote the testimony of Agent Healey: —

"We finally decided to go up directly to the barn; after seeing this incident — or seeing this man go inside and outside with a wrench in his hand. We could also see the five gallon cans, as I said before, and smell the odor of alcohol.

"We continued along this dirt road, proceeded up to the door of the barn; by looking in we could see three stills or copper vats, which we judged to be stills in operation.

"After approaching, why the only man that was visible at the time was a man who, if I recall right, — his name was Bosca. He was standing outside of the barn with a little truck with `plumber' on it; I don't just recall the plumber's name there was on the truck.

"Upon entering — agent Smith, if I recall right, was the first one to enter the premises or the barn; and from behind the stills we called this man Di Corvo, the witness who has preceded me here today, and another young man — I just can't recall his name — one of the defendants. I then proceeded downstairs to the basement, where we found — myself and one of the accompanying agents — found Mr. Falcone with three other defendants."

This witness further testified that he had received instructions which directed him to go to the farm in question. Just what these instructions were does not appear in the record.

Mr. Smith who was in charge of the raid, testified, inter alia: "Well, we went to the Nesbit farm; we watched the place for approximately twenty minutes; we walked up the road for about fifty feet or one hundred feet; we could get a good strong odor of alcohol; we walked up to the barn door; it was open; I walked in; when I got in there were two men behind the still."

Smith did not testify about any man standing outside of the barn. On cross-examination he testified in part, as follows:

"My superior told me to go to Waterbury and I would meet a man that would give me information on stills.

"Q. You would meet a man that would give you information on stills. And you went to Waterbury? A. I did.

"Q. And you met this man? A. I did.

"Q. And he gave you the information on stills? A. Yes, sir.

"Q. And as a result of the information that you got on these stills from a man in Waterbury, you went to this particular so-called Nesbit farm? A. I did."

Agent Sposa thereupon testified, in part, as follows: "After observing the place for about twenty minutes we approached the barn; we were about forty or fifty feet away, we could see vapor coming out of the barn; we saw vapor and we heard engines going; when we got to the door of the barn, Agent Smith was in front, I was right behind him, we could see the stills from the outside through the opening of the door. We went inside and found this man working at the stills."

The defendants denied that the door was open — and that it was only opened when one of the agents knocked, and then only partially, and that the agents pushed their way into the barn. This testimony accords much nearer the probabilities of the situation.

From all of the credible evidence before me I find that the only evidence which the agents had of distilling operations within the barn was that furnished by the smell of alcohol. I do not believe that the door of the barn was open so as to permit the officers to see stills inside of the barn without making a preliminary entry, nor do I credit the testimony of the witness Sposa with reference to the vapor and the noise made by the engines. It seems to me that if vapor was issuing from the barn and was visible, and if the engines could have been heard operating therein, these facts would not have escaped the observation of the other two agents, and that they would have testified to these facts. Nor am I disposed to accept the testimony of Healey that there was a man standing outside of the barn. The other two witnesses say nothing about this, as will be shown in the sequel. If Healey's story be accepted, and if no other person was actually known to the agents to be inside of the barn, then, under the rule stated in Temperani v. United States (C. C. A.) 299 F. 365, no offense was actually being committed in the presence of the officers.

I do not know whether the odor given off by the processes of distillation is the odor of alcohol. In several of the reported cases where the agents relied upon their sense of smell, the odors are described as being the odors of sour mash, or the odor of fermentation or distillation. It may, however, well be that the processes of distillation give off an odor identifiable as that of alcohol.

I further find that the barn in question was, in fact, used by the defendants as an illicit distillery, and that these six defendants lived in the shed which was only 40 feet away from the barn where the illegal operations were being conducted. The farmhouse had been let by the owner of the farm to a man whom the defendants described as their partner. The residence was in actual occupation, however, by a tenant who had been directed to move from the premises by the owner of the farm, so as to permit the same to be occupied by the defendant's partner. The men were temporarily occupying the shed in anticipation of this removal. So much for the facts found which are necessary for a consideration of the legal principles involved.

The petitioners invoke the protection of the Fourth and Fifth Amendments to the Constitution. It would seem as if, at this late day, these Amendments, which paraphrase the language of a more venerable Bill of Rights, would have had their intendments so fixed and determined by a chain of judicial construction, that little room would any longer exist for a reasonable doubt as to their cogency in any given case. But the case at bar seems to prove the contrary. The natural desire on the part of administrative officials to enforce the penal laws, and of the judiciary to lend vitality to such efforts, has created a shadowy terra incognita, wherein the interests of criminal justice collide with rooted constitutional immunities. Upon this region a great deal of casuistry has been expended in an endeavor to inhibit these immunities from defeating the immediate ends of justice.

We may start with the well-settled proposition that searches in general may not be made except upon a search warrant issued by a proper officer, upon a showing of probable cause. I do not understand that the District Attorney would seek to contest this general principle. The fact is, however, that searches and seizures without a warrant are, under certain circumstances legal, so that the question in every case is whether the circumstances in each particular case are such as to bring the case out of the rule which requires the issuance of a search warrant. The exception to the rule may be stated, generally, as follows:

Where a person is lawfully arrested, a search, which is incident to the arrest, may be made of the person and of the premises within which the person is found, and such articles may be seized as constitute the instrumentalities of criminality or the fruits of the crime.

In turn, under the statute, the lawfulness of an arrest without a warrant depends upon one of two things....