United States v. Falloco
Decision Date | 07 January 1922 |
Docket Number | 4496,4514. |
Citation | 277 F. 75 |
Parties | UNITED STATES v. FALLOCO. SAME v. ROSS. |
Court | U.S. District Court — Western District of Missouri |
Samuel M. Carmean, Asst. U.S. Atty., of Kansas City, Mo., and Byron H. Coon, Asst. U.S. Atty., of Joplin, Mo.
E. H Gamble and James M. Rader, both of Kansas City, Mo., for defendants.
While these two cases arise out of distinct transactions, and involve different facts and circumstances, the same principle is involved, and both motions were heard together. A single ruling will dispose of both applications. The seizures in both cases were made by police officers. In the Falloco case the defendant's premises consisted of a house, barn, and shed, all of which were within the same inclosure; that is to say, situated upon the same lot of ground in Kansas City, Mo. The officers passed from the shed through a sort of harness room and through a door which led into an underground apartment; that part of the ground in which this latter apartment was situated being higher than that upon which the shed stood. They there found a still, some whisky, and some mash for use in making whisky. The defendant was present and in charge. The still was in operation. They arrested the defendant and turned him and a sample of the whisky over to federal officers, and this prosecution resulted. The attention of the officers was directed to the property in question by smelling the odor of the distillation while walking their beat on the street along which the building was located. Their sense of smell led them to the hidden illicit apparatus and product. They had no search warrant.
In the Ross Case the officers had been directed by their superiors of the police department to proceed to the Ross premises, where there was reason to believe that the illicit manufacture of whisky was in progress. As they approached the house the fumes of the distillation were distinctly perceptible. They demanded admission to the house, which was subsequently granted, and they gained access to one of the rooms in which a considerable quantity of liquor was found, and beneath the floor was found a still in operation and about 17 barrels of mash. Here again the officers had no search warrant.
The defendants base their application for a suppression of this evidence upon the ground that the relationship existing between the police officers and the enforcement officers of the United States was of such a nature as to make the former substantially the representatives of the government, or, at least, to subject them and their acts to the provisions of the federal Constitution, and more specifically the Fourth and Fifth Amendments thereto. A review of the testimony is essential to the proper application of the legal principles involved.
Mr Shrader Howell, called on behalf of the defendants, testified that he was formerly, and at the time these transactions arose, federal prohibition director for this district; that along in April, 1920, under the former board of police commissioners, he arranged for a conference with the board in respect to securing co-operation between the state and federal authorities by reason of the concurrent jurisdictions. He said:
Cross-examination:
Redirect examination:
Pearl Horn, called as a witness on behalf of the defendants, testified that he was the sergeant in charge of the so-called raiding squads of the Kansas City police department during the month of August, 1921. To this Chief Edwards also testified. Horn was in charge during July and August. His duties, among others, included dealing with violations of the Volstead Act. 41 Stat. 305.
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