United States v. McCall, 5482.

• Decision Date: 25 April 1957
• Docket Number: No. 5482.,5482.
• Citation: 243 F.2d 858
• Parties: UNITED STATES of America, Appellant, v. John Kenneth McCALL, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

243 F.2d 858 (1957)

UNITED STATES of America, Appellant, v. John Kenneth McCALL, Appellee.

No. 5482.

United States Court of Appeals Tenth Circuit.

April 25, 1957.

Kenneth M. Nohe, Asst. U. S. Atty., Wichita, Kan. (William C. Farmer, U. S. Atty., Topeka, Kan., was with him on the brief), for appellant.

Charles H. Apt, Iola, Kan. (Frederick G. Apt and Apt & Immel, Iola, Kan., were with him on the brief), for appellee.

Before BRATTON, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

BRATTON, Chief Judge.

Six investigators for the Alcohol and Tobacco Tax Division of the Treasury Department, acting without a search warrant, cooperated in searching and seizing from John Kenneth McCall an automobile together with a cargo of intoxicating liquor on a highway in Kansas. An indictment returned in the United States Court for Kansas charged that McCall attempted to introduce and transport the liquor into Oklahoma where such liquor was unlawful except for certain specified purposes; and the United States filed in the same court a libel of information seeking condemnation and forfeiture of the automobile and liquor upon the ground that at the time of the search and seizure McCall was using the automobile in the transportation of the liquor in an attempt to import it into Oklahoma in violation of law. Separate motions were filed in the two cases to suppress the evidence obtained by the search and seizure and to compel return of the seized property. The two cases were consolidated for the purpose of hearing the motions. After hearing, the court found that the investigators did not have probable cause to search the automobile without a search warrant; the evidence was suppressed; return of the seized property was ordered; and the proceeding in libel was dismissed. The Government appealed.

The crucial question upon which the case turns is whether the investigators had probable cause to search the automobile without a search warrant. Probable cause to make a search of an automobile on a highway without a search warrant depends upon the particular facts and circumstances. But it may be said in general terms that probable cause exists where the facts and circumstances, together with the reasonable inferences fairly to be drawn from them, are such as would lead a reasonably intelligent and prudent person to conclude that there is good ground to believe that the law is being violated. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Pearson v. United States, 10 Cir., 150 F.2d 219; United States v. One 1941 Oldsmobile Sedan, 10 Cir., 158 F.2d 818.

Guided by the light which this general rule affords, we come to the evidence adduced upon the hearing on the motions to suppress the evidence and compel return of the seized property. Evidence was adduced which tended to establish these facts and circumstances. James Snyder, Jackson E. Dougdale, John F. Smith, Robert W. Glaser, James V. Leyton, and Glenn Starrett, were investigators for the Alcohol and Tobacco Tax Division of the Treasury Department. They had information from official records that the C. O. Adams Liquor Store, located on the south side of a highway at a point about a mile east of Lamar, Missouri, a town with a population of approximately thirty-five hundred, was buying excessive quantities of whiskey. They had information that it was buying hundreds of cases of whiskey a month. They had information that during January, 1956, it purchased about eleven hundred cases of whiskey. And they had information that at the premises whiskey was being loaded into automobiles from Oklahoma for transportation into Oklahoma. Based upon the information which they had, the investigators, on February 9, 1956, placed the liquor store under surveillance. Snyder took a position in a field about fifty yards from the liquor store. He was equipped with a pair of binoculars, specially made for use at night, and with a walkie-talkie radio transmitter and receiver. The other investigators were using radio equipped automobiles. At about ten o'clock at night, Snyder saw an automobile coming east on the highway toward the liquor store. As it approached the liquor store, the automobile made a right hand turn off the highway, went around the store, and thence to the rear of the building. As the automobile went in behind the building, the flood light at the rear of the building was turned off. There was a garage at the rear of the liquor store. After the flood light went off, Snyder heard sounds which indicated that the garage door opened, that the automobile entered the garage, and that the garage door...