United States v. Novero

• Decision Date: 12 December 1944
• Docket Number: No. 24312.,24312.
• Citation: 58 F. Supp. 275
• Parties: UNITED STATES v. NOVERO.
• Court: U.S. District Court — Eastern District of Missouri

58 F. Supp. 275

UNITED STATES v. NOVERO.

No. 24312.

District Court, E. D. Missouri, E. D.

December 12, 1944.

Harry C. Blanton, U. S. Dist. Atty., of Sikeston, Mo., for plaintiff.

John L. Sullivan, of St. Louis, Mo., for defendant.

DUNCAN, District Judge.

This is a motion to suppress evidence obtained by the agents of the Alcohol Tax Unit as the result of a search of the premises of defendant without a search warrant.

Charles Novero was indicted by the grand jury in the Eastern District of Missouri on September 15, 1944, under Section 3173 (b) (2), 26 U.S.C.A. I. R. C.; Section 2803 (a) (g), Title 26 U.S.C.A. I. R. C.; Section 3321 (a), Title 26 U.S.C.A. I. R. C.

The defendant operates a tavern at or near 1900 South Kingshighway Boulevard in the City of St. Louis. For some time prior to his arrest, the agents of the Alcohol Tax Unit suspected that Novero had not made return of all liquor owned by him and on hand on April 1, 1944, for the purpose of floor stock tax. Their investigations prior to his arrest indicated that he had purchased considerable quantities of liquor in excess of the amount sold in his tavern and accounted for in his return.

On several occasions they checked his tavern and the rooms above the tavern which were occupied as living quarters, but failed to discover the suspected shortage. The agents were taken by the defendant into a room over the tavern in which there was a bed and other bedroom furniture and items of wearing apparel, and the agent was advised by defendant that it was his room and that he lived there. According to the testimony of the agent, in response to a question propounded to Novero, he stated that he had no other room and owned no other property.

After the investigation at the tavern, one of the agents testified that he obtained information that Novero owned a tract of 7¾ acres of land near Pond in St. Louis County, a short distance from the City of St. Louis. Defendant testified that he acquired the land approximately two years prior to the time of his indictment. The buildings on the land consisted of a barn, smokehouse, a garage and a four room dwelling house. The dwelling house and the smokehouse were surrounded by a fence.

Following the purchase of the property, Novero modernized the dwelling house. He installed electric lights, furnace, hot and cold running water and a sewer system and completely furnished the four rooms, including an electric refrigerator. In other words, the house was completely modernized by Novero. There was some livestock, comprising nine calves, ten hogs and a mule on the place.

The house, furnished, was occupied for some time by a person employed by Novero. He took care of the property, fed the stock and did other things about the place. Prior to the search, he left the employ of Novero and moved out of the house. At the time of the search, the place was not occupied.

As the owner of the tavern at 1900 South Kingshighway, defendant had a general liquor license for that address. There is no evidence tending to show how long he had been in business there, or how long he had occupied the room above the tavern. He was registered as a voter in the City of St. Louis from the Kingshighway Boulevard address. Novero testified that the house in which the liquor was found at Pond was his home, that he slept there on week ends, and some times during the week he went out there and stayed, that some of his clothes were there and that he considered the property his home.

One of the agents testified that during the investigation he learned through a source which he stated he would rather not reveal, that Novero had some liquor stored at the Pond property. Acting on that information, two of the agents drove to the Pond property and found the house unoccupied. A painter in the employ of Novero was working around the place, and, according to the testimony of the agent, the back door of the house was unlocked and the door standing open. The agent inquired of the painter as to who lived there and was advised that no one lived there.

"Q. * * * `Is there a caretaker?' And he said, `No; he quit sometime before.'

And I said, `Who owns the place?' And he told me Charley Novero. I said, `You have no objection to me going in?' He said, `I haven't any right to object, it doesn't belong to me.' And the house was unlocked."

The agents went into the house without a search warrant and, by means of a penknife, one of them picked a lock on a door leading into the basement. A search there revealed nothing. They then picked another lock on a door leading to an upstairs room. There they found approximately one hundred fifty cases of whisky and wine and a few cases of groceries.

Thereupon the agent called the office of the Alcohol Tax Unit in St. Louis and reported what had been found and requested that another agent go by the Novero tavern and bring Novero out to where they were. In response to that call the agent went to the Novero tavern, identified himself, and informed Novero what the other agents had found and took him to the farm.

Upon his arrival at the farm and having been further apprized of what had taken place, the agents requested Novero to unlock the buildings outside of the house, that is, the smokehouse and the garage, and he complied. In the smokehouse they found a quantity of tax-paid wine. They then directed his attention to the garage, which was outside the yard 100 or 150 feet away and inquired what was in it. The agent testified that: "Just as we started out, I said `What is in that building Charley?' (referring to the garage). He said `Some moonshine in there.'"

At the request of the officers Novero unlocked the garage and in it they found three fifty gallon barrels of non-tax paid liquor (moonshine), a quantity of wine, several glass jugs of alcohol and other jugs and bottles and 75 cases of tax paid liquor. Novero denied that he stated to the agent that there was moonshine whiskey in the garage, and denied ownership thereof, but admitted ownership of the 75 cases of whiskey and other tax paid liquor. An inventory of the liquor was made and it was removed and stored by the agents. Novero was brought back to the city and admitted to bail. Later he was indicted and this motion is filed as a result thereof.

The agent testified with respect to the house, that the house was nicely furnished as a dwelling house, and included living room, bedroom, kitchen and dining room. It was equipped with furnace, electric lights etc.

Defendant contends that it was his dwelling house and protected against unlawful search under the provisions of the Fourth Amendment to the Constitution of the United States. On the contrary, the Government insists that the defendant's residence was at the 1900 South Kingshighway Boulevard address, where he admitted having a room, and from which he was duly registered for voting purposes in the City of St. Louis, and that the residence located on the Pond property was not his residence and dwelling house, and that the evidence obtained by the agents in a search thereof without a warrant may be used against him in a criminal prosecution.

Unquestionably, if the property was the residence of the defendant, then of course the agents had no right to search it without a search warrant, and the evidence obtained as a result of such search was improperly obtained and should be suppressed.

The Fourth Amendment¹ protects all, those suspected or known to be offenders as well as the innocent, and the duty of giving it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the law. Go-Bart Importing Co., v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas. 1915C, 1177.

Therefore, it is first necessary to determine whether or not the house in which the search and seizure was made was the residence or the dwelling house of the defendant. The provisions of the Fourth Amendment¹ should be liberally construed in favor of the individual. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524; Sgro v. United States, 287 U.S. 206 loc.cit. 210, 53 S.Ct. 138, 77 L.Ed. 260, 85 A.L.R. 108.

Defendant, a single man, had acquired the property upon which was located the dwelling house in which the seizure occurred, about two years before his indictment. He testified that it was his home. He had apparently expended considerable sums of money in modernizing the place by putting in electric lights, a sewer, hot and cold running water, a furnace and completely furnishing the four rooms, including a Frigidaire. It is the undisputed testimony that he went there to stay and sleep over week ends and occasionally during the week; that was true even while the property was being occupied by an employe of defendant.

He had also acquired and placed thereon some livestock, as heretofore stated. Every act done with respect to the property was indicative of an intention to make it a home. Residence being a question of intention, even though a person may spend most of his time elsewhere, the place to which he expects to return is considered his home. As was said in United States ex rel. Devenuto v. Curran, 2 Cir., 299 F. 206, loc.cit. 211: "Residence denotes a place of abode, without regard to whether it be temporary or permanent, while a domicile is the place where the law regards the person to be, whether or not he is corporeally found there. And one may have several residences at the same time but he can only have one domicile at a time."

We are living in a highly transitory age. It certainly isn't uncommon for persons now to have more than one place which they may rightfully call "home". The place a man considers his home will be afforded the protection of the Amendment, although he may spend a part, even the greater part, of his time at some other place.

The testimony of the agent and of the defendant himself...