United States v. Nichols, 313.

• Decision Date: 06 July 1948
• Docket Number: No. 313.,313.
• Citation: 78 F. Supp. 483
• Parties: UNITED STATES v. NICHOLS.
• Court: U.S. District Court — Western District of Arkansas

78 F. Supp. 483

UNITED STATES v. NICHOLS.

No. 313.

District Court, W. D. Arkansas, Hot Springs Division.

July 6, 1948.

R. S. Wilson, U. S. Atty., and David R. Boatright, Asst. U. S. Atty., both of Fort Smith, Ark., for plaintiff.

C. Floyd Huff, Jr., of Hot Springs, Ark., for defendant.

JOHN E. MILLER, District Judge.

An indictment containing two counts was returned by the Grand Jury against the defendant, James Frank Nichols, on May 25, 1948. Count 1 charges a violation of Section 2803, Title 26 U.S.C.A.Int.Rev.Code, in that on or about January 15, 1948, in a 1936 Plymouth sedan the defendant had in his possession and custody 30 one gallon jugs of distilled spirits, upon which no stamps were affixed denoting the quantity thereof and evidencing payment of all internal revenue taxes imposed by the United States. Count 2 charges a violation of Section 3321, Title 26 U.S.C.A.Int.Rev.Code, in that on or about January 15, 1948, the defendant removed and concealed 30 one gallon glass jugs of nontaxpaid distilled spirits for and in respect whereof a Federal Tax had been imposed with intent to defraud the United States of such tax.

On June 8, 1948, the defendant filed a motion to suppress evidence, alleging that Federal Agents, in violation of defendant's rights under the 4th and 5th Amendments to the Federal Constitution, unlawfully searched his automobile without a search warrant and without probable cause, and found therein the 30 one gallon glass jugs of distilled spirits, which evidence will be used against the defendant on the trial of this cause unless suppressed in accordance with defendant's motion.

This motion came on for a hearing before the court on June 22, 1948, at which hearing the following facts developed:

About 2:30 P.M., Thursday, January 15, 1948, at Arkadelphia, Arkansas, Elwin S. Gibson and Ralph W. Keck, agents of the Alcoholic Tax Unit, Treasury Department, obtained information from a source which they deemed reliable that the defendant often delivered untaxpaid distilled spirits from the vicinity of Hot Springs, Arkansas, to Arkadelphia, Arkansas, usually on Thursday of each week, and that if they wanted to be certain of picking him up, they should intercept him before he reached Arkadelphia, because he made deliveries at unknown places within that city. Both agents not only knew the defendant personally but knew him to be a habitual or chronic violator of the Internal Revenue Laws since 1919, and that he had served several terms in prison for such violations. The information was that he would be driving alone in a 1936 Plymouth Sedan bearing State License Number 111,718 with the liquor hidden in the car. Acting upon this information the agents immediately began patrolling the highway between Hot Springs and Arkadelphia, and about 5 o'clock that afternoon the defendant, driving toward Arkadelphia, met them. The agents, who were then going toward Hot Springs, turned around and after following the defendant for a short distance drove alongside of him and ordered him to stop. While overtaking the defendant Agent Gibson observed that although the defendant was alone the automobile sagged in the back as though loaded. After both cars had stopped Agent Keck entered defendant's car and found the 30 one gallon jugs behind the back of the rear seat, whereupon the liquor was seized and the defendant placed under arrest.

The agents did not have a search warrant, but the Government seeks to justify the seizure and arrest on the ground that they had probable cause for the search. During the hearing on this question the attorney for the defendant asked Mr. Gibson, one of the agents, to name his informer. The Government interposed an objection, and for purposes of the record the objection was sustained, but the court at the conclusion of the hearing stated that that question along with the question of probable cause would be taken under consideration and a final decision thereon rendered at a later date.

The facts developed at the hearing also call for a consideration by the court of the question whether, under the circumstances, the agents should have obtained a search warrant. The detailed information obtained from the informer was considered by them to be reliable, and, therefore, should the agents have applied for a search warrant to seek out and search the automobile and thus disclose the source of their information or were they authorized to act and search the automobile when they met the defendant driving the identical vehicle that the informer advised them he would be driving?

In cases of this kind when it is reasonably practicable to obtain a search warrant the same must be used in every case, but from the very nature of an automobile believed to be carrying contraband liquor, it is a rare case indeed when the facts render it reasonably practicable to secure a search warrant. Therefore, at least since the Supreme Court decision in Carroll et al. v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, it has been generally held by the various Federal Courts than an automobile may be searched for contraband liquor in the absence of a search warrant when the officers act upon probable cause. As stated by the court in the Carroll case, supra, in 267 U.S. at page 156, 45 S.Ct. at page 286, 69 L.Ed. 543, 39 A.L.R. 790:

"In cases where the securing of a warrant is reasonably practicable, it must be used, and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause."

From the viewpoint of effective law enforcement consistent with a full and adequate protection of the individual's rights guaranteed him by the constitution, the reasons for the doctrine permitting search of an automobile upon probable cause are obvious. Because of the highly movable nature of an automobile, to require a search warrant in every instance would in many cases place an insurmountable obstacle in the path of enforcement officers. Chief Justice Taft in writing the opinion of the court in the Carroll case recognized this and on page 153 of 267 U.S., on page 285 of 45 S.Ct., 69 L.Ed. 543, 39 A.L.R. 790, stated:

"We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."

Of course, the Carroll case is actual authority for a case arising under the National Prohibition Act, 27 U.S.C.A. § 1 et seq., only, because the search there was upheld under the search and seizure provisions enacted for the enforcement of that Act. This was pointed out by the Supreme Court in United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, in which the court stated that the Carroll case did not establish a doctrine that, without such legislation (above referred to), automobiles are subject to search without warrant in enforcement of all federal statutes, and since it was not necessary in the Di Re case, the court declined to pass on the proposition that any automobile is subject to search without warrant on reasonable cause to believe it contains contraband. However, the language of the Carroll case recognized and made a difference between an automobile or similar vehicle and a permanent dwelling, and the court believes the reasoning behind this language is sound. The...