United States v. One Kemper Radio

• Decision Date: 05 October 1934
• Docket Number: 25116.,No. 21708,21708
• Citation: 8 F. Supp. 304
• Parties: UNITED STATES v. ONE KEMPER RADIO, etc. SAME v. BROWN.
• Court: U.S. District Court — Northern District of California

8 F. Supp. 304

UNITED STATES v. ONE KEMPER RADIO, etc.

SAME v. BROWN.

Nos. 21708, 25116.

District Court, N. D. California, S. D.

October 5, 1934.

H. H. McPike, U. S. Atty., and Thos. G. Goulden, Asst. U. S. Atty., both of San Francisco, Cal.

George J. Hatfield and Frank J. Perry, both of San Francisco, Cal., for libelee and defendant.

ST. SURE, District Judge.

Libel of information against one Kemper radio and other miscellaneous personal property which it is charged was within the possession of Frank Brown, alleged bootlegger, in fraud of revenue laws of the United States. The government seeks a forfeiture of the property (R. S. § 3453, section 1185, title 26 USCA).

An information charging Brown with concealment and possession of tax unpaid liquor was also filed (R. S. §§ 3450 and 3452, sections 1181 and 1184 respectively, title 26 US CA), and arrest was made on a bench warrant issued thereon.

Motions to suppress and exclude the evidence, upon the ground that claimant and defendant's constitutional rights had been invaded (Fourth and Fifth Amendments to the Constitution of the United States), were made in both cases, and, as the same facts apply to both, they will be considered together.

The parties entered into and submitted to the court the following:

"Agreed Statement of Facts

"This is a libel of information seeking the forfeiture of certain goods, merchandise, articles, objects and personal property found in the premises known as 1153 Valencia Street. Claimant Frank Brown questions the legality of the search.

"The premises involved is one of two stores located on the ground or street level of an apartment building on Valencia Street in the City and County of San Francisco. The stores are separate and have no connection with one another. On the hearing before the Court on the motion to suppress, Keith De Kalb, a Deputy Collector of Internal Revenue, testified to visiting one of these stores known as 1153 Valencia Street on January 9, 1934, which he described as being a store in appearance only, that is, that the show windows had some commercial display and on the awning in front thereof appeared the words `Stationery and Drawing Supplies,' but the door leading into the premises was not open to the public in that it was secured by a mechanical lock which automatically became operative when the door was closed and could be opened only from within. He further testified that approximately ten days prior to this visit he had received information from a reliable source that said premises was operating as a retail liquor store, selling liquor that was apparently bootleg, and that there was no occupational tax stamp in evidence in the premises.

"The witness further testified that he had information that these premises, for several years prior to January 9, 1934, had had the reputation of being a bootleg joint; that he personally had on several occasions as an agent of the Bureau of Prohibition, unsuccessfully attempted to gain entrance thereto; that the outward appearance of the premises had not changed since his previous visits; and that the records of the Alcoholic Beverage Unit, which has succeeded to the records of the former Prohibition Unit, and which he checked prior to visiting the premises on the day in question, showed arrests made on the premises during the year 1933 for two violations of the National Prohibition Act.

"When the Deputy Collector reached the premises in question the door thereof was open about three feet and claimant Frank Brown was standing in the doorway. The witness approached Frank Brown, and stood within the open doorway; that the door could not under such circumstances be closed; and asked if he could get a drink. Brown in reply asked him if he had a card and when the witness answered in the negative he was advised that he, Brown, did not remember witness and could not admit him. Thereupon the officer advised Brown that he was a Deputy Collector of Internal Revenue and exhibited to him his credentials (claimant's Exhibit 2, a copy of which is hereto attached); that he had information that a barroom was being operated on the premises and he desired to inspect it for tax unpaid liquor.

"The witness further testified that during this conversation he received a very strong barroom odor which he described as similar to the odor one would receive in a saloon or place where whiskey and like beverages were served; that such odor consists of a combination of whiskey, wine and beer odors. He also testified (over objection of the government that the question was improper, immaterial and irrelevant) that he could not tell from the odor he received whether or not the liquors from which the odor emanated was tax paid, but that he could tell that such liquors were subject to a tax. Through the doorway he could see a partition painted a mottled green and in front of the partition two beer barrels with canceled tax stamps thereon. Upon being shown a diagram of the premises (prepared for claimant in evidence as claimant's Exhibit 1), the witness testified he could not see beyond the green partition, while standing in the doorway of the premises, and that the barroom could not be seen from the doorway.

"Taxable liquors on which no tax had been paid were found in the premises, which consisted of a barroom, store room and serving rooms. Claimant Brown was placed under arrest."

At the oral argument, counsel for the government admitted that, at the time the officer entered the premises without a search warrant, for the purpose of making a search, no offense had been committed in his presence, but that, after the entry, search, and examination of the evidence, arrest was made.

In its brief, the government says that it "desires to impress upon the court that it does not claim that Rev. St. 3177 section 92, title 26 USCA does of itself supply probable cause to inspect any premises on mere suspicion, and the Government in this case does not justify the search * * * on R. S. 3177 alone." Said section provides that any internal revenue agent "may enter,...