United States v. O'LEARY, 11683.

• Decision Date: 31 January 1962
• Docket Number: No. 11683.,11683.
• Citation: 201 F. Supp. 926
• Parties: UNITED STATES of America v. Robert O'LEARY.
• Court: U.S. District Court — Eastern District of Tennessee

201 F. Supp. 926

UNITED STATES of America v. Robert O'LEARY.

No. 11683.

United States District Court E. D. Tennessee, S. D.

December 29, 1961.

On Motion to Rehear and Reconsider January 31, 1962.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., for plaintiff.

Schoolfield, Taylor & Schoolfield, Chattanooga, for defendant.

WILSON, District Judge.

The defendant in this case was indicted for the possession of illicit whiskey. A motion to suppress evidence was filed on behalf of the defendant upon the ground that the arrest of the defendant was unlawful and that the search of the defendant's automobile was likewise unlawful. A trial by jury was waived by the defendant and by stipulation of the parties it was agreed that the case would be tried by the Court upon the indictment and the motion to suppress at one hearing.

Thereupon Mr. O'Donnell, a government agent, testified that upon August 21, 1961, around 7:00 a. m., he and another government agent, Mr. McKnight, arrested the defendant near Signal Mountain Road and Suck Creek Road, Hamilton County, Tennessee, and upon search of the defendant's automobile found 20 gallons of illicit whiskey in the trunk. The witness testified that acting upon information obtained by Mr. McKnight to the effect that the defendant would be driving a 1951 Mercury automobile at this location between 6:30 and 7:30 a. m., hauling approximately 20 gallons of illicit whiskey, he and Mr. McKnight posted themselves along the route the defendant was reported to be traveling. The identity of the defendant was made known by the informant and Mr. O'Donnell himself had known the defendant for a period of some ten years. At about 7:00 a. m. upon this date the defendant passed driving a 1951 Mercury and he was recognized by the witness. Upon likewise observing the agents, the defendant attempted to flee, was pursued by the agents, and eventually turned into a dead-end road, there abandoning his car and attempting to flee on foot. Mr. McKnight chased and apprehended the defendant a short distance from the car. In the meantime Mr. O'Donnell took the keys from the ignition of the abandoned automobile and opened the car trunk locating there 20 gallons of illicit whiskey.

Mr. McKnight, the only other witness to testify in the case, and who was also a government agent, testified that previous to the arrest of the defendant he had received information from a source he considered reliable that the defendant would be running whiskey, in approximately 20 gallon lots, over a specified route two or three times a week. He also obtained further information from an unknown source that the defendant would make a run between 6:30 and 7:30 a. m. Acting upon this information, the witness and Mr. McKnight posted themselves along the route, observed the defendant pass in the automobile described by the informant and about the time suggested by the informant. Recognizing the defendant as the person described by the informant, and known to the agent for some five years, a chase occurred with the defendant eventually abandoning his car and fleeing on foot only to be overtaken and arrested by Mr. McKnight within a short distance. When Mr. McKnight returned to the automobile after having apprehended the defendant, Mr. O'Donnell had in the meantime located 20 gallons of nontax-paid whiskey in the automobile.

This was the substance of all of the testimony in the record. Upon this state of the record, it becomes necessary to determine whether the whiskey found and seized was lawfully found and seized or whether this evidence should be suppressed. The legality of the arrest is likewise an issue under the motion to suppress. However, it is not believed that this would be determinative of the issues in this case. Moreover much that is said herein with regard to searches and seizures would apply also to a determination of the legality of the arrest.

The motion to suppress is based upon the Fourth Amendment to the Constitution under which the defendant is entitled to protection from unreasonable "searches and seizures." In this regard, the burden of proof is upon the defendant, as the moving party, to establish the illegality of the search and seizure. Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106; United States v. Profaci, D.C., 124 F.Supp. 141.

One of the elements of a reasonable search is whether or not probable cause exists for having made the search and seizure. Probable cause for believing that contraband goods are being transported in an automobile is in and of itself sufficient justification for stopping and searching the automobile in the absence of a reasonable opportunity to obtain a search warrant. The search authority arises from the probable cause, and is dependent neither upon a search warrant nor upon a prior and valid arrest.

As stated in the case of Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543:

"The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law."

The same point is made in the case of Husty v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 241, 75 L.Ed. 629, where the Court stated:

"The Fourth Amendment does not prohibit the search, without warrant, of an automobile for liquor illegally transported or possessed, if the search is upon probable cause; and arrest for the transportation or possession need not precede the search."

Probable cause is generally defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused or suspected is guilty of the offense upon which the search is founded. It does not mean actual and positive cause, nor does it import absolute certainty. 47 Am.Jur., Searches and Seizures, Sec. 22. Under the testimony in this case it appears that all of the information which the officers received and acted upon came from a source believed by them to be reliable except the information as to the exact time of day the defendant would travel the route, this information coming from an unknown source. The reliability of this information was confirmed when the officers, acting upon it, observed the defendant driving the automobile described along the route suggested at the time suggested and recognized the defendant as the person identified by the informant. It is believed by the Court that all of this, considered together, was sufficient to justify a reasonably...