United States v. Evans, 15055.

• Decision Date: 05 July 1963
• Docket Number: No. 15055.,15055.
• Citation: 320 F.2d 482
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aubrey EVANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

320 F.2d 482 (1963)

UNITED STATES of America, Plaintiff-Appellee, v. Aubrey EVANS, Defendant-Appellant.

No. 15055.

United States Court of Appeals Sixth Circuit.

July 5, 1963.

Wilfred C. Rice, of Charity & Rice, Detroit, Mich., for appellant.

William H. Merrill, Chief Asst. U. S. Atty., Detroit, Mich. (Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for appellee.

Before CECIL, Chief Judge, and MILLER and O'SULLIVAN, Circuit Judges.

CECIL, Chief Judge.

Aubrey Evans, defendant-appellant, hereinafter called defendant, was indicted in the United States District Court for the Eastern District of Michigan, Southern Division, for the unlawful possession of a still used for the manufacture of intoxicating liquor in violation of Sections 5179(a) and 5601(a) (1), Title 26, U.S.C. The defendant was tried before a jury, found guilty and sentenced to eighteen months in the custody of the Attorney General. This appeal followed.

The defendant was arrested by federal officers on May 29, 1961, at the premises described as 1000 Baldwin street, in the city of Detroit. The officers had a search warrant for 1000 Baldwin street, Detroit, including the basement and attic.¹ One thousand Baldwin was the south half of a two and one-half story double or duplex house. The building was constructed as a two family unit, each side having a first and second floor with a basement and attic. The north side was described as 1004 Baldwin. There was a partition wall in the attic separating the two family units.

At the time of the arrest, the entrance to the attic on the 1004 side was sealed off with lath and plaster in a permanent manner. A door two and a half by five feet had been cut through the partition so that access to the attic over 1004 could only be gained through the entrance from 1000 Baldwin. The door was hinged and opened into the 1004 side of the attic. There was no lock or fastener on the door by which it could be fastened from either side. There were two nails above the door from which a cloth could be suspended to conceal the door.

The officers were admitted into 1000 Baldwin by the defendant. He was told that they had a search warrant and they proceeded to search the premises. The search led to the portion of the attic over 1004 where an illegal still was found.

One of the assignments of error is that the evidence concerning the discovery of this still should not have been admitted at the trial for the reason that the authority of the search warrant did not extend to the premises described as 1004 Baldwin. This question was first raised on a motion to dismiss the indictment.

The district judge found that the physical characteristics of this attic were such that the entire attic was a part of the premises described as 1000 Baldwin. We agree. The question presented here is a factual one and we are of the opinion that the trial judge decided it correctly. No cases have been cited to us directly in point and we have found none.²

Counsel for the defendant argues in his brief that there was a failure to show probable cause for the issuance of the search warrant. We cannot find that this question was raised in the trial court either on the motion to dismiss or at the trial. It cannot now be raised in this Court. Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996; Koury v. United States, 319 F.2d 75, C.A. 6, decided June 26, 1963.

In another assignment of error, counsel for defendant charges that the government failed to prove the possession of the illegal still by the defendant. The gravamen of this charge is that the only evidence to show possession in the defendant is a signed confession of the defendant which the trial judge erroneously admitted into evidence.

We are of the opinion that from all of the facts and circumstances surrounding the search and arrest there was sufficient evidence in addition to the confession to carry the case to the jury on the question of possession. However, the confession would be so damaging that if it was improperly admitted a reversal would be required.

The confession in question was taken by James Lucia, one of the federal officers assisting in making the search of the premises. Mr. Lucia was downstairs with the defendant at the time the still was found in the attic. Mr. Lucia testified that he advised the defendant that he need not say anything and that anything he did say could be used against him. The defendant then admitted that he owned the still that was found in the attic, that he had had it approximately three weeks and that he had produced two and one-half gallons of distilled spirits. Mr. Lucia reduced these statements to writing in his own hand and the written statement was signed by the defendant.³ The defendant read it and was given an opportunity to make changes.

The defendant testified that the officers put the handcuffs on him and that one of the officers commenced writing. The statement was written and read to him and he was asked to sign it. The defendant further testified that the officer said: "`I mean for you to sign it right now.'" The defendant then explained "So, rather than get into it with the officers, I went ahead and signed the statement, with the handcuffs on, and he held it on my knee for me to sign it."

At the time the...