United States v. McClard

• Citation: 333 F. Supp. 158
• Decision Date: 03 November 1971
• Docket Number: No. LR-71-CR-96.,LR-71-CR-96.
• Parties: UNITED STATES of America, Plaintiff, v. John Phillip McCLARD et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

333 F. Supp. 158

UNITED STATES of America, Plaintiff, v. John Phillip McCLARD et al., Defendants.

No. LR-71-CR-96.

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

November 3, 1971.

COPYRIGHT MATERIAL OMITTED

W. H. Dillahunty, U. S. Atty., Richard M. Pence, Jr., Asst. U. S. Atty., Little Rock, Ark., for plaintiff.

Thomas A. Glaze, Little Rock, Ark., for John Phillip McClard.

M. Drew Bowers, Little Rock, Ark., for Edward William McNeil and Johnnie Lee Tedford.

MEMORANDUM OPINION

HENLEY, Chief Judge.

Subject criminal case is now before the Court on motions of the defendants to suppress evidence consisting of the fruits of a seizure effected in Saline County, Arkansas, on March 8, 1971, by agents of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department acting under a search warrant issued by a United States Magistrate on March 2, 1971. The materials seized consisted of a 550 gallon unregistered whiskey still, some 3500 gallons of mash, and 133 gallons of whiskey contained in one gallon glass jugs on which whiskey the federal internal revenue taxes imposed by law had not been paid. The defendants have been indicted by the Grand Jury and have pleaded not guilty.

In support of their motions the defendants contend: (1) That there was no probable cause for the issuance of the search warrant. (2) That the warrant was defective in form and content. (3) That there was an unreasonable delay in the execution of the warrant. (4) That in connection with the ultimate execution of the writ the officers violated 18 U.S.C.A., section 3109.

The motions have been submitted on oral testimony, documentary evidence, and thorough memorandum briefs. This opinion incorporates the Court's findings of fact and conclusions of law. There is little dispute about the facts, but it is necessary to state them in some detail.

On March 1, 1971, agents of the Division above mentioned had information that an illicit liquor operation was in progress or about to be undertaken on the Dale Woodall farm in Saline County, and on that date the farm premises were put under observation by agents including Earl R. Hill who has been a federal liquor agent for some 19 years. The improvements on the farm consisted of a house, a barn located some 50 yards from the house, and a stock pond. Some woods were located about 150 yards from the barn. The agents took a position in the woods and examined the house and barn through field glasses. Apparently no one was living in the house at the time.

Mr. Hill, who seems to have been the principal observer, saw a green and white pickup truck driven up to the vicinity of the barn and then backed up to the barn; at about this time a second man appeared; the barn door was open. The two men were observed to remove a number of coca cola cartons from the barn and place them in the truck. Hill's experience has been that such cartons are a convenient means of transporting containers of illicit liquor since each carton will hold four one gallon jugs. The officers saw no still or whiskey in the barn, but just inside the door of the barn they observed what they took to be sugar sacks stacked together; and they saw three butane tanks adjacent to the barn. The officers also observed that a black hose ran from a nearby pond to the barn, and they observed another hose attached to a pump at the side of the house and apparently running into the barn. It does not appear that the officers recognized either of the two men whom they saw on the premises.

On March 2, which fell on Tuesday, Agent Hill prepared on official United States Magistrate forms which had been supplied to him in blank by the Magistrate in Little Rock an affidavit for a search warrant and a search warrant. He took those documents to the Magistrate and executed the affidavit in the Magistrate's presence. The caption of the forms as filled out by Hill was "United States of America vs. John Doe." The Magistrate signed the jurat on the affidavit executed by Hill and also signed the warrant and delivered it to Hill.

The warrant described the Woodall farm in detail and described the property to be searched for and seized, if found, as being an unregistered distillery, its supplies and apparatus, mash fit for distillation, and distilled spirits on which the tax imposed by law had not been paid. The warrant recited that the items and materials which were to be the subject of the search were fit and intended for use in violation of several of the internal revenue laws of the United States relating to intoxicating liquor.

Although the warrant commanded that it be executed "forthwith," as required by Rule 41(c) of the Federal Rules of Criminal Procedure, it was not executed immediately or until six days later. The reasons for the delay need to be stated.

The officers, of course, were interested not only in seizing and destroying the supposed still, mash, and whiskey but also in arresting the individuals engaged in the violation of the liquor laws of the United States on the Woodall farm. If the individual or individuals involved in the operation were to be arrested and prosecuted successfully, it was desirable and probably from a practical standpoint necessary that he or they be observed working at or around the still if there was one. Thus, further observation of the premises was called for and was contemplated by Agent Hill and his fellows.

On the afternoon of March 2 it began to snow, and the weather became quite bad so that immediate return to the farm was impracticable if not impossible. The snow accumulated on the ground on the farm and elsewhere in the area, and its presence ruled out observation of the premises until it melted since if the officers returned to the vicinity while the ground was still covered with snow and later left without having been able to make a capture, their tracks in the snow would in all probability have been discovered by the operators of the still so that the efforts of the officers would be aborted.

While the snow was probably gone by not later than March 4, the officers working on the case had in the meantime been dispersed on other assignments, and it took some days to get them back together; the problem of reassembly was complicated by the fact that a weekend began on March 6.

On March 8 a number of officers went to the Woodall farm arriving shortly after noon. They took station in the woods and began their observations. They observed activity involving two men around the house and barn, and they noticed that some pigs were in an enclosure near the barn. Later in the afternoon a third individual appeared on the scene and joined in the activities of those already there. The men were seen moving around the barn and carrying out of it buckets of what appeared to be corn or chops; that material was apparently designed to be fed to the hogs that were on the premises, but the officers did not observe any of it actually being fed. At one stage one of the men, who turned out to be the defendant McClard, was observed to place a butane tank in his truck and drive from the barn to the house where he appeared to fill the tank from a larger storage tank and then returned the tank to the barn.

As a matter of tactics the officers did not desire to close in on the operation until all three of the subjects were in the barn at the same time. That situation presented itself about 4:45 P.M., and the officers immediately launched their raid. Two of them went to the house and three of them went to the barn.

Agent Tollison, carrying the warrant, went to the front door and Agent Daniels went to the back door. The testimony is conflicting as to what transpired at the house. Mrs. Tedford, wife of the defendant Tedford, who was in the house, testified that the officers forced both the front and back doors without any prior announcement or identification and that both of the agents had their pistols drawn. Both officers denied that they displayed any weapons, and the Court does not think that they did. Agent Tollison testified that he knocked on the front door, which was unlocked, and that he then opened it and walked inside as Mrs. Tedford was coming to the door, and that he told her he was a federal officer; she did not categorically deny that he so identified himself after he was in the house. The back door was secured by a latch, and Agent Daniels used at least some force to get that door open. The search of the house was cursory, and no contraband or evidentiary material was found.

The three other agents, Hill, Paladino, and Williams, ran from the woods to the barn. Williams was the first agent to reach the front of the barn; he saw that the door was ajar and stepped inside observing the defendants and the still in operation. He also saw the mash and the whiskey. He said, "Howdy, boys. What's going on?" What was going on was obvious and was in plain view. By this time the other officers had come up. The defendants were arrested and escorted outside the barn. Shortly thereafter the agents who had been to the house came down to the barn, and the search warrant was formally served.

Taking up, now, the contentions of the defendants, the Court will first consider the attacks on the affidavit for the search warrant and the warrant itself as documents. The Court considers the attacks insubstantial. Defendants complain about the "John Doe" caption of the affidavit and warrant; there might or might not be some substance to that complaint if the warrant had commanded the arrest of an individual or the search of a person; the affidavit did not ask for an arrest warrant or for a warrant to search the person or effects of an individual; and the warrant did not command such an arrest or search. The command of the warrant was for a search of premises described in detail and for the seizure of specifically described contraband items. Defendants complain further that the warrant was not directed to a "civil officer of the...