United States v. Duane

• Decision Date: 28 May 1946
• Docket Number: Cr. No. 2236.
• Parties: UNITED STATES v. DUANE.
• Court: U.S. District Court — District of Nebraska

66 F. Supp. 459

UNITED STATES v. DUANE.

Cr. No. 2236.

District Court, D. Nebraska, Lincoln Division.

May 28, 1946.

James L. Brown, Asst. U.S. Atty., of Lincoln, Neb., for plaintiff.

B. J. Boyle and Fred S. White, both of Omaha, Neb., for defendant.

DELEHANT, District Judge.

The defendant is being prosecuted by information charging that, in violation of Title 27 U.S.C.A. § 223, on July 21, 1945, in Gage County, Nebraska, he attempted to import, bring, and transport a designated quantity of specifically described intoxicating liquor consisting only of commercial whiskey, into Kansas.¹

He has moved for the return to him or the suppression as evidence against him in the case, of one 1939 DeSoto Coupe model automobile and some 937 pints of assorted tax paid whiskey seized from him after search of the automobile, immediately upon his arrest.² Other issues are presented in reference to the sufficiency of the information. But this opinion is directed only to the motion to suppress.

Evidence has been received upon the issues thus made, which, together with comprehensive briefs of counsel, has been duly considered by the court. The court has concluded that the motion to suppress is not well taken and is entering an order denying and overruling it. Counsel are entitled, in the light of their competent presentation of their respective positions, to an orderly statement of the legal and factual considerations which underlie the ruling.

The arrest of the defendant was made, and the automobile and liquor were seized, by Newton Splawn, agent, and Elvin E. Cook, investigator of the United States Treasury Department, Bureau of Internal Revenue, Alcohol Tax Unit. Both actions were taken without a warrant for arrest or a search warrant.

The defendant's fundamental reliance is upon the Fourth Amendment to the Constitution of the United States, whose language is: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

While the immunities thus defined in the amendment are not to be accorded the status of a fetish and thereby to be allowed to intercept their rational analysis, they are at the very core of those safeguards that chiefly distinguish the status of the inhabitants of the United States from the position of those in nations which acknowledge no real individual rights to be secure from official denial or invasion. To the full extent of its protection, the amendment shields the guilty, equally with the innocent. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas. 1915C, 1177; Angello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Kroska v. United States, 8 Cir., 51 F.2d 330; United States v. Keown, D.C.Ky., 19 F.Supp. 639. In fact, demonstration would not be difficult that the barrier of the amendment is raised to safeguard unquestioned violators of the law, far more frequently than for the protection of those who are innocent or even doubtfully guilty.

However, even by its own terms, the amendment forbids, not all searches and seizures, but only those that are unlawful. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. And upon the same authority (267 U.S. page 149, 45 S.Ct. 284) it "is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." See also United States v. Bell, D.C.Cal., 48 F.Supp. 986.

A distinction is to be made, not so much in principle as imperatively in practical application, in the administration of the amendment's immunities in respect of the several objects of its protection. In which course a somewhat different judicial and legislative attitude may be discerned in the treatment of searches of dwellings or other buildings on the one hand, and of vehicles on the other, a variation that has been and is being magnified with the development of transportation. Upon this theme, in Carroll v. United States, supra, after a comprehensive examination of earlier statutes, as well as decisions, upon the point, the court said (page 153 of 267 U.S., 45 S.Ct. 285, 69 L.Ed. 543, 39 A.L.R. 790), "We have made a somewhat extended reference to those statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between the search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." See also Pearson v. United States, 10 Cir., 150 F.2d 219; Brock v. United States, 8 Cir., 12 F.2d 370.

It has already been observed that the present search and seizure were made without the authority of a search warrant. A warrant is not, and is not here claimed to be, a condition prerequisite to such action. But, to support a search and seizure by a federal officer without a valid warrant justification in the way of probable cause for the step must exist. "On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid." Carroll v. United States, supra, (page 149 of 267 U.S., 45 S.Ct. 283, 69 L.Ed. 543, 39 A.L.R. 790); Dumbra v. United States 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032; Scher v. United States 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151; Garske v. United States, 8 Cir., 1 F.2d 620; Brock v. United States, 8 Cir., 12 F.2d 370; Peru v. United States, 8 Cir., 4 F.2d 881; Kroska v. United States, 8 Cir., supra; Kaiser v. United States, 8 Cir., 60 F.2d 410; Van Eeckhoute v. United States, 8 Cir., 79 F.2d 827; United States v. Costner, 6 Cir., 153 F.2d 23; Jones v. United States, 10 Cir., 131 F.2d 539; United States v. One 1937 Model Studebaker Sedan, 10 Cir., 96 F.2d 104; Alberty v. United States, 10 Cir., 134 F.2d 135; Pearson v. United States, supra; United States v. Keown, D.C.Ky., 19 F.Supp. 639; United States v. One 1929 Pierce Arrow Sedan, D.C.Mass., 8 F.Supp. 273.

It is made clear upon the highest authority that the facts relied upon by the officer for his belief of guilt need not be legal evidence of the suspected offense. Thus, in Husty v. United States, 282 U.S. 694, at pages 700, 701, 51 St.Ct. 240, 241, 75 L.Ed. 629, 74 A.L.R. 1407, it is said: "To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. * * * It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched." (That alone was enough to support the charge involved in the Husty case. More is required here.) See also Dumbra v. United States, supra; Carroll v. United States, supra; Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035; Kaiser v. United States, 8 Cir., supra.

The defendant correctly contends that, in support of his belief that the law is being violated, the officer is limited to his knowledge with which he initiates the search and that he may not sustain it upon the basis of the discovery of what he seeks in an otherwise illegal search. The mere vindication of a suspicion or guess will not suffice.³ Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L. Ed. 520; Carroll v. United States, supra; Brock v. United States, 8 Cir., supra; Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690; Wisniewski v. United States, 6 Cir., 47 F.2d 825; United States v. Clark, D.C.Mo., 29 F. Supp. 138; United States v. Sully, D.C.N. Y., 56 F.Supp. 942; United States v. Slusser, D.C.Ohio, 270 F. 818; United States v. One Kemper Radio, D.C.Cal., 8 F.Supp. 304.

Not pressed upon the court in the defendant's original and reply briefs, but suggested in the interrogation of witnesses upon the hearing, and finally adverted to in a voluntarily submitted rejoinder brief, is the suggestion that, since the officers informed the defendant of his arrest immediately before the search of the automobile, the search and seizure may not be examined solely upon their own merits but must be sustained or rejected in relation, and as mere incidents, to an antecedent arrest upon the charge of the commission of a misdemeanor. In a comparable context the Supreme Court rejected this argument in Carroll v. United States, supra (see pages 156, 157, 158, 159, of 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790). And this court is persuaded that the arrest itself was lawfully made under the prescribed rules upon that question recalled by Mr. Chief Justice Taft in the Carroll case (pages 156, 157 of 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790).⁴

However the rule governing the search and seizure without a warrant may be stated or limited, no single criterion or testing formula for its application may be devised. The issue in each case must be determined upon its own peculiar facts. Go-Bart Importing Co. v....