United States v. Lerner, 19261.
| Decision Date | 16 October 1940 |
| Docket Number | No. 19261.,19261. |
| Parties | UNITED STATES v. LERNER. |
| Court | U.S. District Court — District of Maryland |
Bernard J. Flynn, U. S. Atty., and Anthony Purcell, Asst. U. S. Atty., both of Baltimore, Md., for plaintiff.
Simon E. Sobeloff, of Baltimore, Md., for defendant.
The indictment in this case contains two counts, the first charging unlawful and felonious possession of 120 gallons of untax-paid whiskey on or about February 29, 1940 in Baltimore City. This count is based on 26 U.S.C.A. Internal Revenue Code, § 2803. The second count charged the unlawful and felonious removal and concealment of 50 gallons of untax-paid whiskey at the same time and place, being an alleged violation of 26 U.S.C.A. Internal Revenue Code, § 2913. By stipulation of counsel the case has been tried before the court without a jury, as the question involved is one of law with no material controversy as to the facts. They are as follows:
Two agents of the Alcohol Tax Unit had information that a particular automobile with Maryland license No. 152,208 would deliver a load of untax-paid whiskey at a certain place in mid-town Baltimore City at about a certain time on February 29, 1940. They also had information that the automobile would be "loaded" at a particular house, 3416 Cottage Avenue, in Baltimore City. This is in the Park Heights Avenue neighborhood some miles from the anticipated delivery point. The agents were also informed that the latter place was the residence of some members of a family named Lerner who were reputed to be bootleggers. After the agents had waited for some time at the alleged delivery place without seeing the automobile, they went to the alleged loading place about 6 o'clock P. M., on February 29th. This was an ordinary city dwelling house with a garage in the rear on a public alleyway. On passing the front of the house the agents saw the suspected automobile parked there. They anticipated that it would shortly be loaded at the garage in the rear and they proceeded to an observation point in the alleyway in the rear of the house where they could watch the garage. It was, however, practically dark at that time. After waiting and watching for about fifteen minutes they saw a car resembling the suspected one come down the alley and enter the garage, and shortly later they heard sounds in the garage, the door of which was open, from which they inferred that the automobile was being loaded with liquor. The automobile in question was a Chevrolet sedan with seats for four or five passengers and it subsequently developed that a side door of the automobile had been opened and the liquor was being loaded on the floor of the car between the two seats. The agents approached closer to the garage and both turned on flash lights by means of which they were able to see somewhat indistinctly the form of a man placing in the automobile a parcel in newspaper but in the shape of a five-gallon can, which has a characteristic form and shape well known to agents of the Alcohol Tax Unit to be used in transportation of untax-paid liquor. While still in the alleyway and before entering the garage they announced to this man that they were "federal officers", whereupon he immediately fled through the door in the rear of the garage and along an areaway of about 28 feet in length leading to a rear door of the house, which he entered. The agents pursued him, noticing that on the way one five-gallon can apparently thrown away in his flight by the man pursued. When the man pursued entered the house the door was attempted to be closed behind him, but the agents pressed their weight against the door and succeeded in entering just as the man was running up the back steps from the cellar of the house to the floor above. One of the agents pursued the man up the steps. The other remained in the cellar which was fully lighted. There were two men in the cellar at the time, who had evidently been holding the door. One was the defendant Harry Lerner, and the other his father, Joseph Lerner. The identity of the third man who fled from the garage and through the house has not been disclosed.
The agent who remained in the cellar immediately noticed the presence of a large number of five-gallon cans of the kind above referred to, which did not contain tax stamps. He informed the two men in the cellar that they were under arrest. Thereupon some conversation ensued for over a space of ten or fifteen minutes, during which the defendant, Harry Lerner, informed the agents that the liquor, which was untax-paid, both in the cellar and in the automobile, belonged to him and that the automobile also belonged to him although registered for his convenience in another name, and that he had partially loaded the automobile. One of the agents asked the defendant to accompany him out to the automobile in the garage, to which the reply was made that he would do so after a while. In the meantime some one had telephoned to the defendant's attorney (not the trial counsel) who promptly appeared and some part of the above recited conversation and admissions by the defendant were made in the presence of the attorney. There was no express protest made against the arrest or seizure of the untax-paid liquor either in the house or in the automobile except the question was asked as to what right the agents had in coming into the house without a search warrant. The defendant was then taken into custody by the agents and the automobile was also seized. The quantity of untax-paid whiskey in the house was about seventy gallons, and about fifty gallons in the automobile.
On this evidence, given by the Government's agents, there being no testimony offered for the defendant, counsel for the latter has asked that a verdict be directed for the defendant on the ground of lack of any sufficient legal evidence to justify a conviction on either count of the indictment. In due time before the trial of the case a motion was made to suppress the evidence which was overruled at the time without prejudice to its being renewed at the trial; and motions are now made to strike out the evidence furnished by the seizure of the untax-paid liquor both in the house and in the automobile, and the admissions of the defendant as to its ownership and possession. The defendant's contention is that the seizure of the untax-paid whiskey both in the automobile and in the house was illegal under the Fourth Amendment, because it is said the agents had no probable cause for the attempted arrest of the man in the garage and therefore no right to pursue him into the cellar of the...
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