United States v. Hill, 31086.

• Decision Date: 05 May 1971
• Docket Number: No. 31086.,31086.
• Citation: 442 F.2d 259
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tom HILL and Leroy Hill, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

442 F.2d 259 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Tom HILL and Leroy Hill, Defendants-Appellants.

No. 31086.

United States Court of Appeals, Fifth Circuit.

May 5, 1971.

Thomas M. Jackson, Macon, Ga., for defendants-appellants.

William J. Schloth, U. S. Atty., D. L. Rampey, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before WISDOM, BELL and AINSWORTH, Circuit Judges.

WISDOM, Circuit Judge:

Tom and Leroy Hill were convicted by a jury on a two-count indictment charging them with possession and transportation of nontaxpaid whiskey, in violation of 26 U.S.C. §§ 5205(a) (2), 5604(a). The district court placed Leroy on probation for a period of two years and sentenced Tom to serve two concurrent terms of eighteen months each in the custody of the Attorney General. Both defendants have appealed. We affirm.

I.

Both Tom and Leroy contend that the district court erred in denying their motion to suppress the evidence of the whiskey discovered in the trunk of Leroy's automobile on the ground that the search of Leroy's car was without a warrant or probable cause and therefore in violation of the Fourth Amendment. It is undisputed that at the time the Government agents searched Leroy's car they possessed neither an arrest nor a search warrant. Thus the question presented is whether in the circumstances of this case the agents were entitled to search Leroy's car without a warrant.

The Supreme Court has recently spoken on the subject of warrantless searches of automobiles. In Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, the Court said:

In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 39 A.L.R. 790 (1925), * * * the Court held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.

399 U.S. at 48, 90 S.Ct. at 1979, 26 L. Ed.2d at 426. See also Dyke v. Taylor Implement Mfg. Co., 1968, 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538, 543; Brinegar v. United States, 1949, 338 U. S. 160, 164, 69 S.Ct. 1302, 93 L.Ed. 1879, 1884; United States v. Blackwell, 5 Cir. 1970, 430 F.2d 1270, 1272; United States v. Brown, 5 Cir. 1969, 411 F.2d 478, 479. Our task in this case is thus to examine the record to see whether at the moment the Government agents stopped Leroy's car they had probable cause to believe that the car contained nontaxpaid whiskey, the possession and transportation of which is illegal and which Government agents are authorized to seize and not return.

Agent Harding testified that some thirty days before the events in question he had received information from an informant that the Hill family was in the illicit whiskey business, that they were hauling whiskey in a number of trucks and late-model automobiles, and that the residence of Willie Hill, the father of Tom and Leroy, was the center of the operation. The informant was known to Agent Harding to be reliable, since he had supplied information on two previous occasions that had led to the seizure of nontaxpaid whiskey.

At about 8:00 p. m. on July 18, 1970, this same informant told Agent Harding that the Hill family would be transporting nontaxpaid whiskey that evening on Highway 49 from the Baldwin-Jones county line to Milledgeville, Georgia. The informant said that a 1969 Plymouth Roadrunner, black over yellow, 1970 Georgia license number 24-1264, would be used to haul the whiskey and would pick it up somewhere near the residence of Willie Hill.

Immediately upon receipt of that information Government agents set up surveillance of the Hill residence. Shortly thereafter, the agents saw an automobile matching the above description drive up to the Hill residence and disappear behind the house. The vehicle remained there for about ten minutes and then left on Highway 49, heading toward Milledgeville. The car then contained four people. This information was radioed to Agent Harding on Highway 49. When Agent Harding spotted the car, he immediately noticed that the vehicle appeared to be heavily loaded. He followed the car for approximately a mile and then stopped it.

He identified himself to the occupants, told them that he had information that they were transporting nontaxpaid whiskey, and asked them to step out of the car while he searched it. When he requested that they open the trunk, Leroy Hill, the driver of the car, told him that he had "lost" the key to the trunk. Agent Harding therefore waited until the other agents arrived on the scene and then broke into the trunk through the back seat of the car. There the agents found three fifteen-gallon plastic containers filled with nontaxpaid whiskey.

From this evidence we hold that at the moment the agents searched Leroy's car, they had probable cause to believe that the vehicle contained nontaxpaid whiskey, which they were entitled to seize. It necessarily follows then that the district court did not err in denying the Hills' motion to suppress the evidence.

II.

Tom Hill contends that the district court erred in denying his motion for judgment of acquittal on the ground that the Government's evidence was insufficient to support his conviction. He argues that the Government's evidence shows merely that he was a passenger in an automobile in which illicit whiskey was being transported and not that he was...