United States v. Lantrip

• Citation: 74 F. Supp. 946
• Decision Date: 13 January 1948
• Docket Number: Cr. No. 14713.
• Parties: UNITED STATES v. LANTRIP.
• Court: U.S. District Court — Eastern District of Arkansas

74 F. Supp. 946

UNITED STATES v. LANTRIP.

Cr. No. 14713.

District Court, E. D. Arkansas, W. D.

January 13, 1948.

James T. Gooch, U. S. Atty., and W. H. Gregory, Asst. U. S. Atty., both of Little Rock, Ark., for the Government.

Sam Robinson, of Little Rock, Ark., for defendant-movant.

LEMLEY, District Judge.

The defendant, Ernest Lantrip, has been charged by the Grand Jury for the Eastern District of Arkansas in an indictment containing three counts with (1) on or about March 25, 1947, unlawfully possessing a still designed for use in the production of spirituous liquors without having the same registered as required by law, 26 U.S.C.A. Int.Rev.Code, § 2810, and (2) with having at the same time engaged in and carried on the business of a distiller of spirituous liquors without having given bond as required by law, 26 U.S.C.A. Int. Rev.Code, § 2833, and (3) with having at the same time and place unlawfully made and fermented 150 gallons of mash intended for use in the distillation and production of spirituous liquors on premises other than a distillery duly authorized by law, 26 U.S.C.A. Int.Rev.Code, § 2834.

The defendant has moved the court to direct that one 55-gallon iron drum still pot, one 50-gallon wooden barrel, one worm, two 50-gallon mash barrels, 18 gallons of distilled spirits, two 10-gallon kegs, 150 gallons of mash, and certain other property, of which he is the owner, and all of which he contends was unlawfully seized and taken by certain investigators of the Alcohol Tax Unit of the Treasury Department of the United States, be suppressed as evidence against him in this proceeding, on the ground that the same was taken from his home against his will and without a search warrant. The Government admits that this property was seized and taken from the defendant's curtilage without a search warrant, but contends that he consented to the search.

A hearing has been had on this motion, and counsel for both sides have submitted written briefs.

The proof in substance is as follows:

Investigators John H. Greeley and Harry E. Brill of the Alcohol Tax Unit received information to the effect that an illicit still was being operated on the Lantrip place in Pulaski County, Arkansas. A part of this place is owned by the defendant and a part by his mother. The offices of these investigators are within one block of that of a United States Commissioner in Little Rock, but no effort was made to obtain a search warrant. On the other hand, they proceeded immediately to make a search of the Lantrip property. They first searched the fields, and finding no evidence of the still, they then searched Lantrip's mother's house. She testified that this was done without her consent. The officers testified that she agreed to the search. No incriminating evidence was found in this home. The officers stated that a still had been set up there but had been moved. They then proceeded to the home of the defendant. One of the officers pulled his badge from his pocket and exhibited it to Lantrip and told him that they were federal officers and were investigating a report that he was making whiskey there. The Government contends that Lantrip then consented to a search of the premises. Lantrip and his wife have testified to the contrary. In any event, the officers found and took from the defendant's barn, which was within his curtilage, the property which forms the subject matter of this motion.

We will quote from the testimony of the officers:

Officer Brill — Direct Examination:

"Q. Mr. Brill, at this time there is a motion before the Court that on the 25th day of March, 1947, you made an investigation on the premises of one Mr. Ernest Lantrip. Will you state to the Court in detail exactly what happened, Mr. Brill? A. On that day, Investigator Greeley and I were investigating a report that there was an illicit liquor manufacture and sale on the Lantrip property, and we went to the home of Ernest Lantrip. We went to the door and Mr. Lantrip met us at the door. Mr. Greeley told him that we were federal officers and had a report that he was making whiskey there. He said, `There is nothing to that at all; there's nothing like that around here, no still.' He said, `You can go ahead and look if you want to; look any place. Come right in the house if you want to; start here and look.' So, Mr. Greeley told him, no, we didn't care to go into the house but we would like to look over the outbuildings. So I stood and talked to Mr. Lantrip and his wife and Mr. Greeley started out toward the shed, forty or fifty yards north of the house in a field there; and as he was nearing this shed, Mr. Lantrip said to me, `There's no use to lie about it any more, he is going to it.' He said, `It's out there in that shed; I have got a still out there.' So I placed him under arrest and went out to where Mr. Greeley was and we found the still in the shed and two barrels of mash and about eighteen gallons of whiskey. It was untaxed whiskey."

Officer Greeley — Direct Examination:

"Q. Will you state to the Court exactly what took place from the time that you arrived at Mr. Lantrip's premises until he was apprehended. A. We arrived there about the middle of the afternoon and went to the back door, the east door. The door was open. As I stepped up on the porch step, Mr. Lantrip got up from the table — he was eating — and came to the door. I said, `My name is Greeley and this is Mr. Brill. We are Investigators of the Alcohol Tax Unit and have reports that you are violating the liquor laws here on these premises.' I did show him my badge at that time. He said, `Well, go ahead and look any place you want to look.' He said, `Do you want to look in the house,' and I said, `No, just outside,' and started to the shed about forty or fifty yards on the edge of a field. Mr. Brill hollered at me and said, `He said it's in there.' "Q. What did you find there? A. The still was dismantled. We found two fifty-gallon barrels of mash and about eighteen gallons of whiskey in the shed.

"Q. After you went on down to the shed, did Mr. Lantrip and Mr. Brill come on down there? A. Yes, sir, they did.

"Q. They came on down there to the shed with you? A. Yes, sir."

Officer Greeley — Cross Examination:

"Q. You had no search warrant? A. No search warrant, no.

"Q. And no warrant of arrest? A. No warrant of arrest.

"Q. And you went out there for the purpose of making a search? A. That's right, yes, sir.

"Q. Your offices are within one block of the U. S. Commissioner's office? A. That's right.

"Q. You did not attempt to secure a search warrant? A. No.

"Q. Prior to the time you went out there you had information to the effect that the defendant had liquor there or was engaged in the making of liquor? A. That he was in the liquor business, yes, sir.

"Q. Did you consider that information reliable? A. Yes, sir.

"Q. At least you considered it reliable enough to where you went up to make a search? A. That's right.

"Q. But you didn't even attempt to secure a search warrant? A. That's right. * * *

"Q. I believe you said that you did tell him that you were United States officers? A. That's right, yes, sir.

"Q. And you did show him your badge? A. I did, yes, sir.

"Q. You had a badge in your pocket that you pulled out and showed him? A. That's right. * * *

"Q. At the time you went out there to this man's house, to his curtilage — you are familiar with that term? A. Yes, sir.

"Q. You have learned that in your long experience as an officer? A. Yes, sir.

"Q. Your are familiar with that term and with the law on that point, that you can only make a search where the wrong is being committed in your presence or where the man gives his consent? A. Yes, sir.

"Q. You knew that when you went out there? A. Yes, sir.

"Q. You knew that you would have no right to search the premises, and I mean the house and surroundings, the curtilage, unless he gave his consent? A. That's right.

"Q. And regardless of the fact that you were fully acquainted with the law on that subject you made no attempt to get a search warrant? A. That's right.

"Q. You relied entirely upon being able to secure the consent of the person? A. That's right.

"Q. What did you do by way of trying to secure the consent? A. Told him that we had reports that he was violating the liquor laws on the premises and he said, `Go ahead and look around, any place you...