United States v. ONE 1937 MODEL STUDEBAKER SEDAN, ETC.

• Decision Date: 06 April 1938
• Docket Number: No. 1616.,1616.
• Parties: UNITED STATES v. ONE 1937 MODEL STUDEBAKER SEDAN AUTOMOBILE, MOTOR NO. D 136774 (MORGAN, Intervener).
• Court: U.S. Court of Appeals — Tenth Circuit

96 F.2d 104 (1938)

UNITED STATES v. ONE 1937 MODEL STUDEBAKER SEDAN AUTOMOBILE, MOTOR NO. D 136774 (MORGAN, Intervener).

No. 1616.

Circuit Court of Appeals, Tenth Circuit.

April 6, 1938.

Richard P. Shanahan, Sp. Asst., U. S. Department of Justice, of Washington, D. C. (William C. Lewis, U. S. Atty., and Wade H. Loofbourrow, Asst. U. S. Atty., both of Oklahoma City, Okl., on the brief), for the United States.

John W. Tyree, of Lawton, Okl., for appellees.

Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

The appellant (United States of America) instituted this proceeding under section 3450 of the Revised Statutes, 26 U.S. C.A. § 1441, for forfeiture of an appropriately described Studebaker automobile which had been seized by federal agents on the ground that it contained and concealed intoxicating liquor upon which the tax had not been paid, it being averred in the information that one George H. Morgan claimed some right, title, and interest in such automobile. After being permitted to intervene, said Morgan filed a motion to suppress all of the evidence taken and acquired in the course of the search and seizure of the automobile on the ground that the search and seizure were unlawful and illegal, in that same was made without a search warrant and in violation of his rights under the Fourth Amendment to the Constitution of the United States. A jury having been waived, the cause was tried by the court. The facts relative to the search and seizure were partly stipulated.

Soon after a federal investigator, named Harris, arrived in Lawton, Oklahoma, on December 1, 1936, he in person received reliable information verbally and by telephone that said intervener and his son, Herman Morgan, and his son-in-law Lee Roy Walker, were engaged in or carrying on an active illicit business in said city in both taxpaid and nontaxpaid intoxicating liquors. Further investigation by him disclosed that each of said parties had been convicted of violation of the liquor laws of the United States and that said Herman Morgan and said Walker were each holders of current Retail Liquor Dealer's Special Tax Stamps, and were illicitly handling such taxpaid as well as nontaxpaid liquor. Further investigation followed.

On January 13, 1937, said Harris observed Walker deliver to a known and notorious bootlegger a paper carton which resembled a whiskey carton. Two days later said Harris again saw said Walker deliver a paper sack which he thought contained two half-gallon jars of whisky and following this delivery he saw Walker drive to the residence of intervener. Said Harris received further evidence about that time to the effect that Walker was selling nontaxpaid liquor from his residence and thereafter undertook to watch said Walker's premises. While engaged in that task on February 4, 1937, the said officer, Harris, accompanied by his wife, observed a green Buick automobile back out from the said Walker's residence at about 3:15 in the afternoon and start northward, it being the same automobile that Walker had used in making the two prior deliveries.

Said Harris followed said green Buick automobile, which was driven over the streets and along a driveway to a point near a garage of intervener's, located 35 feet from his residence, where the said green Buick car was then located in the driveway five feet from said garage, when said officer and his wife saw the intervener sitting under the steering wheel of a Studebaker car located in said driveway five feet from said garage, the said Walker then and there standing between the two cars about three feet apart in said driveway. The said officer having followed said Buick car and driving in on said driveway behind said car and the Studebaker car, announced his identity as being an Alcoholic Tax Unit United States officer, and inquired of Walker whether he had any liquor in his car, who replied in the negative, at which time, the officer seeing intervener remove a paper sack from the seat in the Studebaker car beside him and place it on the floor of said car near his feet, then and there heard glass clink in said sack. Thereupon the officer opened the door of the said Studebaker car, took hold of the sack, and found that it contained two half-gallon jars of nontaxpaid whisky, whereupon he asked intervener where he obtained the whisky, who replied from a man that he did not know and that he got it for his son, Herman Morgan. Following this, the said investigator's wife called the Sheriff. Another United States Alcoholic Tax Unit investigator, E. T. Smith, shortly thereafter arrived upon the scene.

The intervener, George H. Morgan, was then arrested and charged with possession of whisky, the car being seized and the libel action instituted.

The evidence further disclosed that after the seizure of the whiskey in said car, said officers going to the premises of Lee Roy Walker there found that he was the holder of a Retail Liquor Dealer's Special Tax Stamp, and seized a quantity of moonshine whisky, Walker being arrested and charged in a separate case. Said officer Smith testified that the said Herman Morgan and said Walker were known bootleggers with prior convictions therefor in the federal court.

No search warrant was had by the said officer, Harris, for said premises or Studebaker car, and no warrant had been issued for the arrest of George H. Morgan or said Walker, the arrest of George H. Morgan being made after the seizure of the whisky in the car. The first time that Harris saw the package in Morgan's car was when he heard the clinking of the glass as he saw Morgan moving the package from the seat of the car to its floor.

In this investigation Harris was in the discharge of his duty as such federal officer in that city and had been since about December 1, 1936, during which period said officer having made investigation as to the two Morgans and the said Walker, which disclosed the facts to Harris as herein set out.

Said Harris with his wife in his car coasted along behind said green Buick car with the evident expectation of finding whiskey therein. His identifying himself as such officer, and interrogating Walker as to whether he had liquor in said car so discloses. The movement of intervener at that time as to removal of the package from the seat of his car to its floor and the clinking of the glass attracting Harris' attention obviously diverted him from further attention then as to Walker and the green Buick car. With the facts and information before him he was justified in reaching the conclusion that Walker had probably delivered the paper package to intervener. Harris in thus coasting behind said green Buick car down said driveway, Walker would not have been permitted to complain as to a search of same as the evidence discloses that he had no...