United States v. Hayden, Crim. No. 23418.

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: Philip H. Dorsey, Jr., Leonardtown, Md., for defendant
• Citation: 140 F. Supp. 429
• Parties: UNITED STATES of America v. Elbert Ignatius HAYDEN.
• Docket Number: Crim. No. 23418.
• Decision Date: 01 May 1956

140 F. Supp. 429

UNITED STATES of America
v.
Elbert Ignatius HAYDEN.

Crim. No. 23418.

United States District Court D. Maryland.

May 1, 1956.

140 F. Supp. 430

George Cochran Doub, U. S. Atty., and William F. Mosner, Asst. U. S. Atty., Baltimore, Md., for the United States.

Philip H. Dorsey, Jr., Leonardtown, Md., for defendant.

R. DORSEY WATKINS, District Judge.

The defendant, charged in the first count of an indictment with removing to, and in the second count with concealing six gallons of nontax-paid distilled spirits in, a shed located behind the Ideal Cleaners, Leonardtown, Maryland, the indictment being brought under 26 U.S. C. § 5632, I.R.C.1954, has prior to the trial of the case filed a motion for the suppression of the evidence. The ground alleged for this motion is that the evidence, six gallons of nontax-paid distilled spirits, was obtained by federal investigators as the result of an illegal search and seizure, in violation of the Fourth Amendment.

Testimony given at the hearing on the motion developed the following facts. The defendant, previously convicted of the possession of nontax-paid liquor, was known to the investigators of the Alcohol and Tobacco Tax Division as a major violator. Upon two still seizures the persons found operating the stills had stated that the defendant owned the stills; that is, although not participating himself in the actual processing of the liquor, he hired the operators, supplied the raw materials, collected the finished product, and distributed it to haulers. The defendant was, in the parlance of the illicit liquor trade, a "backer". The agents had also learned from an informant, considered by them to be reliable, that the defendant was using a 1948 green Chevrolet panel truck, Maryland license number 41-56 EG, registered in his name, and bearing the words "Ideal Cleaners" on the sides, to transport the liquor and was using the shed behind his dry cleaning establishment as a "drop". Acting on this information, the investigators had closely observed the defendant's activities during the summer and fall of 1955 but without success until September 18, 1955. On that day, a Sunday, investigator Krzeski, in driving past the cleaning plant, noticed that the defendant's personal car was parked in front of the building and that the green panel truck was gone. Knowing that the cleaning establishment was never open on Sundays, and suspecting that the

140 F. Supp. 431

defendant was going to one of the still sites to pick up liquor, the agent patrolled the nearby roads. He located the truck and began to follow it at a supposedly safe distance, but the driver, becoming suspicious, succeeded in losing the trailing agent who, having again patrolled the roads in the area for two hours to no avail, at seven o'clock that evening returned to the cleaning plant. The defendant's personal car was still there and the green panel truck was parked in the driveway beside the cleaning plant. The agent then drove to the defendant's home, but, observing no activity there, returned to the cleaning plant to find the green truck in the same position and the defendant's personal car gone. Agent Krzeski approached the truck and, looking through a window in the rear of the truck, saw, partially covered with a burlap bag, a cardboard container with "Mason" written on it, the carton being of the size and type customarily used to carry jars of illegal liquor. In addition, he detected the distinctive odor of nontax-paid liquor. No attempt was made to open the rear door of the truck. Krzeski phoned his superior, Wilton Kiefer, who arrived on the scene at two o'clock in the morning. He also walked down the defendant's driveway, observed the contents of the truck through the rear window, making no attempt to open the door, and detected the order of nontax-paid liquor.¹ Agents Krzeski and Kiefer with two others then stationed themselves behind a private residence across the street from the defendant's premises, a distance of some 150 feet from the front of the defendant's property and approximately 240 feet from the shed. A constant surveillance was maintained, and no one approached the green panel truck until seven-thirty in the morning when the defendant arrived. Hayden was immediately recognized by Kiefer who had known the defendant by sight for over three years. The defendant got into the truck, backed it to the open shed, lifted the hood, obstructing the view from the street, opened the rear door of the truck, and carried the carton into the shed. At this point Krzeski and Kiefer drove onto the defendant's property, stopping at the rear of the shed. The defendant came out of the shed and, in response to Kiefer's inquiry as to how much liquor he had, denied having any. Meanwhile, Krzeski went to the front of the shed where he saw in the far rear thereof a carton covered with a burlap bag, a piece of canvas and an automobile wheel. There were no other cartons in the shed. The defendant was placed under arrest, and twelve one-half gallon jars of nontax-paid liquor were found in the carton and seized

The agents had neither a search warrant nor a warrant for the arrest of the defendant. The defendant is not challenging the validity of his arrest, but he does challenge the lawfulness of the search of his truck and shed and the subsequent seizure of the liquor therein. Conceding that during business hours there is a broad distinction between the curtilage of a dwelling and the enclosure of a place of business, the defendant contends that after business hours "places of business and all vehicles within its enclosure are entitled to the same protection under the Fourth Amendment as the curtilage of a dwelling." To answer this contention certain established principles concerning the persons, places, and things protected and

140 F. Supp. 432

the type or degree of protection afforded each must first be considered and then applied to the facts involved in the instant case

The Fourth Amendment reads: "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."

The protection afforded by this Amendment, equally available to the innocent, the suspect, and the known offender, has been extended not only to dwelling houses but to places of business (Gouled v. United States, 1921, 255 U.S. 298, 305, 308-309, 41 S.Ct. 261, 65 L.Ed. 647; Go-Bart Importing Co. v. United States, 1931, 282 U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374; Martin v. United States, 4 Cir., 1950, 183 F.2d 436, 439, certiorari denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654); to movable vehicles (Carroll v. United States, 1925, 267 U.S. 132, 45 S. Ct. 280, 69 L.Ed. 543; Husty v. United States, 1931, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629); and to vessels on the high sea, (United States v. Lee, 1927, 274 U. S. 559, 47 S.Ct. 746, 71 L.Ed. 1202). Open fields, however, have been expressly excluded from the purview of the Fourth Amendment. Hester v. United States, 1924, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L. Ed. 898; United States v. Shafer, D.C.D. Md. 1955, C.D., 132 F.Supp. 659, 664.

Not all searches without a search warrant are prohibited. The test to be applied is not solely the practicability of obtaining such a warrant but rather the reasonableness of the search itself. United States v. Rabinowitz, 1950, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653, overruling to that extent Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663. The protection guaranteed under the Amendment is the right to be secure against unreasonable searches and seizures. What is reasonable in each case turns on the facts as a whole. Thus, it is reasonable when a legal arrest is made with or without a warrant to search without a search warrant the person arrested and articles in his immediate control (Weeks v. United States, 1914, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652), the scope of such a search having been extended in Agnello v. United States, 1925, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145, and in United States v. Rabinowitz, supra, 339 U.S. at page 64, 70 S.Ct. at page 434, to include the place of arrest as well. The requirement that a search warrant be obtained is not as strictly enforced when the search of a movable vehicle is involved. Justice Jackson speaking for the Court in United States v. Di Re, 1948, 332 U.S. 581, 584-586, 68 S.Ct. 222, 92 L.Ed. 210, expressed some doubt as to the validity of the distinction made in the Carroll case, supra, 267 U.S. at pages 151, 153, 45 S.Ct. at pages 284, 285, and the Husty case, supra, 282 U.S. at page 701, 51 S.Ct. at page 241, between what is a reasonable search as applied to an automobile and as applied to fixed premises in the absence of the search and seizure provisions enacted by Congress for the enforcement of the National Prohibition Act, 27 U.S.C.A. The crime, however, involved in the Di Re case was knowingly possessing counterfeit ration coupons and, as the Court notes, 332 U. S. at page 586, 68 S.Ct. at page 224, an automobile...