United States v. One 1941 Oldsmobile Sedan, 3373.

• Decision Date: 10 January 1947
• Docket Number: No. 3373.,3373.
• Citation: 158 F.2d 818
• Parties: UNITED STATES v. ONE 1941 OLDSMOBILE SEDAN, MOTOR NO. OK 171667 et al.
• Court: U.S. Court of Appeals — Tenth Circuit

158 F.2d 818 (1947)

UNITED STATES v. ONE 1941 OLDSMOBILE SEDAN, MOTOR NO. OK 171667 et al.

No. 3373.

Circuit Court of Appeals, Tenth Circuit.

January 10, 1947.

Robert E. Shelton, Asst. U. S. Atty., of Oklahoma City, Okl. (Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl., on the brief), for appellant.

Jim Barnett, of Oklahoma City, Okl., for appellees.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

The government instituted a libel action against one 1941 Oldsmobile Sedan, Motor No. OK 171667, in the United States District Court for the Western District of Oklahoma under Sections 223 and 224, Title 27 U.S.C.A. for forfeiture thereof, on the ground that it was being used to transport tax paid liquor into a dry state in violation of Ch. 9 of Title 27 U.S.C.A. Ernest C. Shirey, the owner of the automobile, intervened and by motion asked the return of the automobile to him. At the conclusion of the trial, the prayer of the motion was granted, the car was ordered returned to him, and the government has appealed. The ground for the court's decision was that the search and seizure of the automobile by the government's agents without a search warrant was illegal and that the evidence obtained as a result of the search and offered by the government was therefore inadmissible. The Pacific Finance Corporation of California also intervened and sought a remission of forfeiture as to the amount of a mortgage which it held on the automobile. Its right to have a remission of forfeiture was not disposed of in the trial below and is not involved in this appeal, and was to be adjudicated in further proceedings in the event of a reversal of the judgment appealed from.

Whether the search and seizure of the automobile without a search warrant was legal depends upon whether the Alcohol Tax Unit investigators in question had probable cause to believe that the car in question was being used in violation of law in transporting intoxicating liquor into Oklahoma, a dry state. What constitutes probable cause authorizing an officer to make a search without a warrant cannot be defined with exactness or precision. Generally, it may be said that probable cause exists where the facts or reasonable inferences to be drawn therefrom are such as should lead a reasonably prudent and intelligent person to conclude that there is good ground to believe that the law is being violated.¹

The facts from which probable cause must be found, if it existed, are these: On October 4, 1945, E. C. Shirey² was driving the car in question toward Oklahoma City on Highway 66. He was coming from Los Angeles, California, to Oklahoma. He had with him in the car a woman and two babies and a boy. They were Travel Bureau passengers and were being hauled by him at the request of the Travel Bureau agent in California. He also had a quantity of tax paid liquor in the car which he had obtained in California and was bringing into Oklahoma. Part of this liquor was in the rear baggage compartment, some was carried in a compartment under the front fender of the car, and some was carried under the hood next to the engine. Near Elk City, Oklahoma, he was stopped by L. J. Nay and Leo K. Nash, two inspectors of the Alcohol Tax Unit, who searched his car without a search warrant and found the liquor in the car.

The circumstances upon which the government relies to establish probable cause justifying the search without a warrant are these: The two agents testified that in the summer of 1945, prior to this search and seizure, they had received information that tax paid liquor was being hauled into Oklahoma from Los Angeles in cars, under the guise of being Travel Bureau cars; that such information related to one Sam Greer and a man known as "Blackie", who lived in Bethany, Oklahoma; that in September they located a two-toned green, 1941 Oldsmobile (the car now in issue) in Bethany, Oklahoma, which answered the description of the car reported to be driven by Blackie; that a check of the tag number of this car revealed that it had been owned by Sam Greer, who had the reputation of being a liquor runner and who on a previous occasion had escaped when he was stopped by Alcohol Tax Unit agents; that Sam Greer had lately transferred title to this car to E. C. Shirey of Bethany, Oklahoma. They testified that in September they had interviewed the then Chief of Police of Bethany (deceased at the time of the trial), and the Chief of Police informed them that he knew Blackie and that he had been hauling Travel Bureau passengers from the west coast to Oklahoma City and had the reputation of hauling liquor from out there into Oklahoma. They testified that on October 3, 1945, they received information that "Blackie" Shirey was coming from Los Angeles with a load of tax paid whiskey and would come into Oklahoma over Highway No. 66; that they immediately proceeded from Oklahoma City to a point eight miles west of Elk City on Highway No. 66 and...