United States v. One 1957 Ford Ranchero Pickup Truck

• Decision Date: 21 February 1959
• Docket Number: No. 5956.,5956.
• Parties: UNITED STATES of America, Appellant, v. ONE 1957 FORD RANCHERO PICKUP TRUCK, Motor No. B7KX 125697; Phillip Drew Parish, Ione Parish, Owners; and Bill Newport, d/b/a Bill Newport Motor Company and Bankers Investment Company, a corporation, Claimants, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

265 F.2d 21 (1959)

UNITED STATES of America, Appellant, v. ONE 1957 FORD RANCHERO PICKUP TRUCK, Motor No. B7KX 125697; Phillip Drew Parish, Ione Parish, Owners; and Bill Newport, d/b/a Bill Newport Motor Company and Bankers Investment Company, a corporation, Claimants, Appellees.

No. 5956.

United States Court of Appeals Tenth Circuit.

February 21, 1959.

Harry G. Fender, Muskogee, Okl. (Frank D. McSherry and Paul M. Brewer, Muskogee, Okl., on brief), for appellant.

John R. Richards, Tulsa, Okl., for appellees.

Before HUXMAN, MURRAH and BREITENSTEIN, Circuit Judges.

MURRAH, Circuit Judge.

In this prosecution for the violation of the Internal Revenue laws relating to intoxicating liquor, the trial court sustained a motion to suppress the incriminating evidence seized in the search of the respondent pickup truck owned and operated by the Parishes, appellees. It also granted remission of the claimed forfeiture of the vehicle on the additional ground that at the time the automobile was sold to the Parishes, and the intervenor Finance Company acquired the mortgage, the Parishes had no "record or reputation" for violation of the liquor laws within the meaning of 18 U.S. C. § 3617(b).

The moving vehicle was intercepted and the occupants detained without a warrant, solely on the basis of confidential information furnished to a city policeman and relayed to a federal enforcement officer; the arrest was made and the search and seizure conducted after incriminating statements by one of the occupants, and this appeal presents the perplexing and constantly recurring question whether in the particular circumstances the enforcement officers had probable cause for doing so.

Though the ultimate question is one of probable cause, we start with the proposition that all unreasonable searches and seizures are constitutionally prohibited; that all searches and seizures without a warrant judicially issued on a factual showing of probable cause are unreasonable, and, the evidence thus obtained is inadmissible against the accused "notwithstanding facts unquestionably showing probable cause." Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Giordenello v. United States, 357 U. S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Hart v. United States, 10 Cir., 162 F.2d 74. Practical considerations bordering on necessity incident to modern law enforcement have, however, moved us to concede some exceptions in the presence of extraordinary circumstances. Thus we have grudgingly sanctioned interception and apprehension of a moving vehicle or person and the search of such vehicle or person for contraband if the enforcement officer has probable cause to believe that the law is being violated in his presence and it is then impractical to secure a warrant. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L. Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Hart v. United States, supra. Cf. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.¹ This much is fairly well conceded. Contrariety comes with the necessity of judicially scrutinizing the facts upon which the officer acted. The arrest has been made, the vehicle or person has been searched, the accused has been arraigned for trial. Our function is a post mortem examination to determine whether the officer acted on facts constituting probable cause. We necessarily proceed with caution lest "stealthy encroachments" destroy a basic concept of constitutional security and liberty.

Our solicitude for these basic concepts has undoubtedly led us to what seems to be unavoidable uncertainty and confusion in the application of the rule of probable cause to work-a-day facts. Indeed, Mr. Justice Black observed in United States v. Rabinowitz, supra, 339 U.S. at page 67, 70 S.Ct. at page 445, "In no other field has the law's uncertainty been more clearly manifested. To some extent that uncertainty may be unavoidable." While we cannot expect uniformity in the application of this conceptual rule, we do hope to avoid the dilemma of having the protection afforded by the Constitution turn on "whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Brinegar v. United States, supra, 338 U.S. at page 171, 69 S.Ct. at page 1308.

In our efforts to formulize for the guidance of enforcement officers who must act at the risk of judicial censure, we have stated in general terms that "probable cause exists in a case of this kind where the facts and circumstances known to the searching and seizing officers, together with the reasonable inferences fairly to be drawn from the facts, are such as would lead a reasonably intelligent and prudent person to conclude that there is good ground to believe that the automobile is being used for the transportation of contraband liquor." Price v. United States, 10 Cir., 262 F.2d 684, 685. See also United States v. McCall, 10 Cir., 243 F.2d 858; Carroll v. United States, supra; Brinegar v. United States, supra. The facts forming the basis for probable cause must be more than sufficient to generate a bare suspicion. Travelers upon the highway may not be "stopped and searched at the officers' whim, caprice or mere suspicion." Brinegar v. United States, supra 338 U.S. 160, 69 S.Ct. 1311. But the actuating facts may be less than probative evidence of guilt. Brinegar v. United States, supra; Draper v. United States, supra. In sum, the rule of probable cause is a practical nontechnical concept based upon "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra.

In our case by case application of these basic concepts, we have had occasion to consider the competency and sufficiency of confidential information standing alone to form the basis of probable cause for search and seizure without a warrant. We have said that such information is competent, together with all other facts and circumstances. United States v. One 1941 Oldsmobile Sedan, 10 Cir., 158 F.2d 818, 820. In Morgan v. United States, 10 Cir., 159 F.2d 85, we posed the question whether probable cause for search could be predicated on confidential information alone, but found it unnecessary to answer since we took the view that such information was sufficient to justify interception of the automobile for investigation, and that voluntary admissions made in the course of interrogation after detention, but before arrest, warranted the search.

In Brinegar v. United States, 10 Cir., 165 F.2d 512, we held facts within the knowledge and observation of the officers insufficient to justify chase and detention, but that voluntary statements made thereafter justified the subsequent arrest and search. On review, the Supreme Court held the facts within the officers' possession sufficient alone to justify detention and search. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 1312, 93 L.Ed. 1879.² In Draper v. United States, 10 Cir., 248 F.2d 295, we sustained the arrest and search of a moving person based solely on information from a named special employee of the Bureau of Narcotics. The Supreme Court, 358 U.S. 307, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, affirmed, noting that the information furnished the officers had "always been found accurate and reliable", and that the arresting officers would have been derelict in their duties had they failed to pursue it.

In our last case on this question we condemned the search of an automobile without a warrant, based solely on an anonymous tip, where, after stopping the car, one of the officers broke a window with the butt of his pistol and arrested the defendant, after which he made an incriminating statement. Price v. United States, 10 Cir., 262 F.2d 684. And see also Clay v. United States, 5 Cir., 239 F.2d 196. The Price case draws a significant factual distinction from Carroll v. United States, supra; Brinegar v. United States, supra; Ray v. United States, 10 Cir., 206 F.2d 796; Fowler v. United States, 10 Cir., 239 F.2d 93; and United States v. McCall, supra, wherein incriminating facts known or observed by the enforcement officers formed the basis for the arrest and search. While no attempt was made to distinguish Price from Draper, we think a clear distinction inheres in the presence of force and violence in the Price case and the complete absence of it in Draper.

Here, about a month before the arrest and seizure, a city policeman received information that the Parishes were making whisky in the southwestern part of Muskogee County and bringing it into the City of Muskogee. About two weeks before the arrest, he received information from the same source of the make, model and license number of the pickup used to haul the whisky. About the same time, and on October 13, 1957, an investigator and Acting Group Leader of the Alcohol Tax Unit stationed at Muskogee received information from an undisclosed informant that the Parishes were engaging in the illicit whisky business in Muskogee County. On the day of the arrest, November 1, 1957, the same city policeman received information that in the early evening of that day, the Parishes would bring a load of whisky into the City of Muskogee from the southwest in the described pickup. The city policeman relayed that information to an investigator of the Alcohol Tax Unit, and the two of them took up watch at a road intersection south of Muskogee. After waiting about two hours, a Ford pickup answering the identical description given the officers passed, occupied by two persons answering the description of the Parishes. After following the pickup into the City of Muskogee, the officers overtook it...