United States v. McKenzie

• Citation: 446 F.2d 949
• Decision Date: 10 August 1971
• Docket Number: No. 71-1034.,71-1034.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold Dean McKENZIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

446 F.2d 949 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Harold Dean McKENZIE, Defendant-Appellant.

No. 71-1034.

United States Court of Appeals, Sixth Circuit.

August 10, 1971.

Conrad Finnell, Cleveland, Tenn., for appellant; Finnell, Thompson & Scott, Cleveland, Tenn., of counsel.

Jerry Foster, Chattanooga, Tenn. (John L. Bowers, Jr., U. S. Atty., Chattanooga, Tenn., on the brief), for appellee.

Before MILLER and KENT, Circuit Judges, and McALLISTER, Senior Circuit Judge.

WILLIAM E. MILLER, Circuit Judge.

This is an appeal from convictions under two counts of possession of unstamped distilled spirits and one count of transporting unstamped distilled spirits, in violation of 26 U.S.C. §§ 5205(a) (2) and 5604(a) (1). The first and second counts concern alleged violations on August 29, 1970 and the third activities on August 30, 1970. In this appeal appellant contends that searches and seizures on those dates violated the Fourth Amendment and hence that evidence obtained from the searches was erroneously admitted into evidence at his trial.

The facts of this case are as follows. Suspecting moonshine activities, a team of agents of the Alcohol, Tobacco and Firearms Division of the Treasury Department, began a surveillance of appellant's residence and barn in rural Tennessee on August 20, 1970. In the woods near appellant's home some agents located an old red truck containing 80 gallons of non-tax paid whiskey in one gallon plastic jugs. The next day, August 21, other agents observed appellant and other unidentified persons unloading the whiskey from this truck and placing it on the ground. One week later, on August 28, Special Investigator Tubb detected the odor of moonshine and saw several men transferring one gallon jugs from another truck into appellant's barn located one-half mile from appellant's home. That truck was later observed parked at appellant's house.

On August 29 agent Tubb typed an affidavit and search warrant authorizing a search of the barn. Later that day the warrant and affidavit were signed by a United States Commissioner. The warrant was dated August 28; the affidavit bore the date August 29.

At 7:00 P.M. on August 29, federal agents observed a 1965 Ford with a white top and light brown bottom proceed to appellant's barn from which appellant and other individuals were seen carrying one gallon plastic jugs of the type commonly used to store moonshine. Because of an obstructed view, the agents could not determine whether any jugs were loaded into the car. The car returned to appellant's home. At approximately 9:00 P.M. appellant was seen driving the apparently heavily loaded 1965 Ford from his home. The car was followed by federal agents dressed in plain clothes and driving in an unmarked car. As they approached the Ford in a rural area approximately ten miles from appellant's home, appellant accelerated his car, drove into a nearby yard, and fled on foot. He was apprehended a few minutes later. While appellant was being chased, a federal agent who had remained with the cars opened the trunk of appellant's Ford and discovered 100 one gallon plastic jugs of moonshine. Appellant was overtaken but later on the same day was released.

The next day, August 30, federal agents, still observing appellant's property, saw appellant proceed to his barn carrying a large oil can. Suspecting arson, the agents walked into the barn and physically seized the appellant. They then smelled gasoline and observed that gasoline had been poured in the area of hundreds of stacked plastic jugs of moonshine. Appellant was arrested and the barn searched. Appellant admitted that his intent was to burn down the barn. He also stated that he then intended to get out of the whiskey business. Appellant was given a copy of the inventory and search warrant the next day.

Appellant filed motions to suppress both the moonshine taken from the car on August 29th and that taken from the barn on August 30th. After an evidentiary hearing, the district court overruled the motions, finding that the search on the 29th was lawful both as incident to a lawful arrest and as the consequence of an abandonment of the car. The court held that the search of the barn on the 30th was valid as the product of a lawful search warrant and as incident to a lawful arrest for arson. Appellant waived a jury and submitted the case to the district court on the basis of the evidence presented at the evidentiary hearing. The court found appellant guilty as charged. Appeal is from that decision.

I. Search of Car on August 29

Appellant contends that the arresting officers did not have probable cause to arrest him without a warrant on August 29. Consequently, appellant argues that the subsequent search of his car was unconstitutional. We do not find it necessary to decide whether there was probable cause to arrest the appellant since we hold that there was probable cause to search his car. Thus, irrespective of the validity of the arrest, the search was valid and the moonshine discovered in the search of the vehicle was admissible against the appellant.

It is now well-settled that an officer may stop and search a motor vehicle for the purpose of discovering suspected contraband cargo if the officer has probable cause to believe that the automobile he stops contains such contraband. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Freeman, 382 F.2d 272 (6th Cir. 1967). Because of the great mobility of the automobile, "what may be an unreasonable search of a house may be reasonable in the case of a motorcar."

In the case at bar, the officers clearly had probable cause to search appellant's white and brown 1965 Ford. One week before the search federal officers had seen appellant unload moonshine from a truck. The day before the car was searched an agent recognized the odor of moonshine and saw one gallon jugs being placed in appellant's barn. On August 29, the day of the search, the agents saw a 1965 white and brown Ford proceed to the rear of appellant's barn. Appellant was seen carrying one gallon white plastic jugs, commonly used for moonshining, from the barn. The Ford, apparently heavily loaded, was later seen driving to, and leaving from, appellant's home. After the vehicle was temporarily stopped by other federal agents, one official detected the familiar odor of moonshine. Appellant then attempted to escape. Under these circumstances, there was probable cause to believe that the Ford automobile was carrying illegal moonshine.

The fact that the officers who conducted the search of the car were not the same officers who observed the inculpatory activities is of no consequence, for the former were acting under radio instructions from the latter who clearly had probable cause to conduct the search themselves. This case is therefore controlled by this Court's decision in United States v. Holloway, 391 F.2d 267 (6th Cir. 1968), where, under similar circumstances, we held a vehicular search to be valid.

II. Search of Barn on August 30

Appellant also argues that the search of the barn on August 30 was illegal because it was based on a constitutionally infirm search warrant that was improperly executed. We find these contentions to be without merit.

Appellant first maintains that the warrant was not issued on probable cause since there "was absolutely no inquiry made by the magistrate as to the identity of the informant or the reliability of the information upon which said search warrant was based." This argument ignores the content of the affidavit which provides in pertinent part:

And the facts tending to establish the

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