United States v. One 1946 Plymouth Sedan Automobile

• Citation: 167 F.2d 3
• Decision Date: 19 April 1948
• Docket Number: No. 9352.,9352.
• Parties: UNITED STATES v. ONE 1946 PLYMOUTH SEDAN AUTOMOBILE.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

167 F.2d 3 (1948)

UNITED STATES v. ONE 1946 PLYMOUTH SEDAN AUTOMOBILE.

No. 9352.

Circuit Court of Appeals, Seventh Circuit.

February 18, 1948.

Rehearing Denied April 19, 1948.

Otto Kerner, Jr., U. S. Atty., John P. Lulinski and Maurice C. Handelman, Asst. U. S. Attys., and August H. Hoch and Joseph H. Collier, Attys., U. S. Treasury Dept., all of Chicago, Ill., for appellant.

Leo Klein, of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

On November 12, 1946, the Government filed a libel for the forfeiture of a Plymouth automobile that allegedly had been used in the removal and for the deposit and concealment of two five-gallon cans of distilled spirits, with the intent to defraud the United States of the tax imposed thereon, in violation of Section 3321(b) (1) (3) of the Internal Revenue Code.¹ On December 16, 1946, one Frank McGee appeared and filed an answer in which he claimed to be the owner of the car sought to be forfeited and alleged that the Government had illegally seized the car and illegally searched it for alcohol, and illegally seized the alcohol. On the same date he also filed a petition to suppress the evidence, alleging that the search of the car and the seizure of the alcohol therein were illegal, and prayed for an order sustaining the petition and directing that the use as evidence of the alcohol so illegally seized "be suppressed and not be used as evidence against your petitioner in the prosecution of this suit."

On February 28, 1947, the Government filed exceptions to the petition to suppress on the ground that it was irrelevant and inapplicable in a civil case and not well founded in law. On the same day the Government filed exceptions to the answer of McGee to the libel. The court overruled the exceptions to McGee's answer to the libel and the exceptions to the petition to suppress. The Government then filed an answer to the petition to suppress. On March 7, 1947, the case came on for hearing on the libel and McGee's answer thereto, and on the petition to suppress and the answer thereto. The two issues then before the court were the libel and McGee's answer thereto, and the petition by McGee to suppress and the Government's answer thereto. These two matters were tried together, and it was stipulated that the evidence in this case would be the evidence heard on McGee's petition to suppress in a certain criminal action that had been brought against him for a violation of the Internal Revenue Code involving the alcohol.

Upon that evidence the court made its findings of fact and stated its conclusions of law as follows:

"1. That on August 1, 1946, the libelant seized certain property in violation of the rights of the claimant, Frank McGee, under and by virtue of the 4th and 5th Amendments of the Constitution of the United States.

"2. That on December 20, 1946, after a hearing before this Court, the use in evidence of the property so seized was ordered suppressed.

"3. That based upon the evidence so illegally seized on August 1, 1946, claimant's automobile, the res sought to be fortified by this libel, was seized by said libelant.

"4. That no evidence other than that suppressed has been offered or admitted in evidence to sustain said libel.

"The Court concludes as a matter of law:

"1. That claimant's petition to suppress the evidence is sustained and that libelant is barred from using in evidence in this proceeding the property heretofore held to have been illegally seized by it, and the use of which in evidence has been suppressed, and said evidence is not admissible.

"2. That the evidence obtained in connection with the unlawful search and seizure excluded, and no other evidence having been received or admitted, there is no proof on which to base a lawful seizure of claimant's automobile nor to predicate a forfeiture thereof, and the libel should be dismissed and said automobile returned to the claimant."

Upon the conclusions of law the court entered the following judgment:

"This cause coming on to be heard upon the libel, the answer thereto of the claimant, the petition of the claimant to suppress evidence, and the exceptions filed to said answer and said petition, and the Court having heard the evidence and the argument of counsel, and being fully advised in the premises, and having made its finding of fact and conclusions of law:

"It is Therefore Ordered, Adjudged and Decreed that said libel be and the same is hereby dismissed and that said property sought to be forfeited herein and described in said libel as `One 1946 Plymouth Sedan Automobile, Motor No. P15-53111, Serial No. 11532427, Illinois License 997-089 (1946)' be returned forthwith by the United States Marshal to the claimant Frank McGee without the payment by him of any expenses for storage or other costs."

The Government contends that the District Court's Findings 1 and 3 are erroneous. We take that to mean that they are not supported by the evidence. If we understand these so-called Findings 1 and 3, they are to the effect that there was an illegal search of the car and an illegal seizure of the car and the alcohol. Upon these findings of the illegality of the search and seizure, the District Court concluded that the evidence obtained thereby was not admissible and ordered it suppressed, and since there was no other evidence but this inadmissible illegal evidence, there was no evidence to support the forfeiture. The court entered judgment accordingly, and from this judgment the Government has appealed.

We have therefore to consider whether the search of the car and the seizure of the alcohol were illegal. If the search and seizure were illegal, the case should be affirmed; if they were not illegal, then this case must be reversed and remanded for further proceedings.

There was no search warrant. May an automobile be searched without a warrant? In Carroll et al. v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, the Supreme Court held that the search and seizure there, which involved liquor being transported in an automobile in violation of the National Prohibition Act, 27 U.S.C.A. § 1 et seq., was valid. The Supreme Court in that case considered the National Prohibition Act (especially the Stanley Amendment)² which gave sanction to the search of an automobile and the seizure of the liquor transported therein, noting the nature of an automobile and the wide use of automobiles to evade the Prohibition Act. The Court concluded that if the officers had probable cause to believe that the automobile was being used to transport liquor illegally, the officers might search the car without a warrant, and if liquor was being illegally transported, seize the liquor and the car and arrest the user of the car. That the Supreme Court did not rely altogether upon the authorization of the statute to seize is evidenced by the following words of the Court: "On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." 267 U.S. at page 149, 45 S.Ct. at page 283.

It will be noted that the true rule as laid down by the Court was based not only upon authority, such as the statutory authorization, but upon reason.

In Husty et al. v. United States, 282 U.S. 694, at page 700, 51 S.Ct. 240, 241, 75 L.Ed. 629, 74 A.L.R. 1407, the Court said: "The Fourth Amendment does not prohibit the search, without warrant, of an automobile, for liquor illegally transported or possessed, if the search is upon probable cause; and arrest for the transportation or possession need not precede the search."

These cases were decided under the Prohibition Act and a search and seizure on probable cause had some sanction from that Act. The Supreme Court has recently pointed out this sanction as to the prohibition cases which stem from the Carroll case, and has mooted but has not decided the question of whether the search without a warrant of a car and the seizure of property transported therein in violation of Federal laws generally is valid. United States v. Di Re, 1948, 68 S.Ct. 222.

However, the case of Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151, did not involve the Prohibition Act but involved another section of the very code with which we are here concerned. The facts there were strikingly similar to our case, and as set forth in the opinion are as follows: "Federal officers received confidential information thought to be reliable that about midnight, December 30, 1935, a Dodge automobile with specified license plate would transport `phony' whiskey from a specified dwelling in Cleveland, Ohio. About nine-thirty officers posted nearby saw the described automobile stop in front of the house and remain there for an hour. A man with three women and a package then entered the car and drove away. It returned shortly before midnight, stopped at the rear of the house and remained for half an hour. The headlights were extinguished; the officers heard what seemed to be heavy paper packages passing over wood. Doors slammed; petitioner drove the car away, apparently heavily loaded. The officers followed in another car. After going a few blocks petitioner stopped briefly at a filling station; then he drove towards his own residence two or three blocks further along. The officers followed. He turned into a garage a few feet back of his residence and within the curtilage. One of the pursuing officers left their car and followed. As petiti...