United States v. Rogato, 5743.

• Decision Date: 07 March 1930
• Docket Number: No. 5743.,5743.
• Citation: 39 F.2d 171
• Parties: UNITED STATES v. ROGATO.
• Court: U.S. District Court — Western District of Pennsylvania

39 F.2d 171 (1930)

UNITED STATES v. ROGATO.

No. 5743.

District Court, M. D. Pennsylvania.

March 7, 1930.

Andrew B. Dunsmore, of Wellsboro, Pa., for the United States.

Walter W. Kohler, of Scranton, Pa., for defendant.

WATSON, District Judge.

This is a rule to show cause why evidence obtained by federal prohibition agents in the search of property at 271 River street, Plains, Pa., should not be suppressed. The search was made by Federal Prohibition Agents Loos and Flood on the 18th day of July, 1929, at about 2 o'clock p. m. The facts leading up to the search and seizure were as follows:

Flood had been informed that the open space in the rear of 271 River street, Plains, Pa., was an "unloading place" for liquor. About a month previous to July 18th, he saw Louis Hornfeld there and a truck in which there were baskets of empty quart bottles. He told Hornfeld and others there at the time that if they did not stop unloading and transferring liquor and whisky at that place, he was going to get them, and about twice a week thereafter he visited and looked the place over.

On July 18th, Loos and Flood, when passing 271 River street, Plains, saw from River street the front ends of two automobile trucks in the rear of the building. The open space in the rear of the building was reached from River street by a driveway on each side of the building located on the premises. One of the trucks was facing south and the other was facing north, which indicated to the officers that they were backed up end to end in the usual position for transferring articles from one truck to the other. Loos and Flood went to the rear of the building where the trucks were, and they saw on the trucks pasteboard containers or cartons which they recognized from their experiences as prohibition agents as containers commonly used to cover cans of alcohol when being transported.

William Rogato, the defendant, was handing one of the containers from the truck in which he was to Hornfeld, who was in the other truck. Both Rogato and Hornfeld said that they did not know what the pasteboard covered cans contained. Loos opened one of the cans, and found from the taste and smell that it contained alcohol fit for beverage purposes in excess of one-half of one per cent. alcohol. On one of the trucks there were one hundred and three five-gallon cans of alcohol, and on the other truck there were eighty five-gallon cans of alcohol. Rogato and Hornfeld were placed under arrest and the truck of alcohol seized.

The attorney for the defendant contends that the search of the truck was made without probable cause for such search.

The Fourth Amendment to the Constitution does not denounce all search and seizures but only such as are unreasonable.

The Fourth Amendment is in part as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

Section 26, title 2, National Prohibition Act (27 USCA § 40), under which the seizure herein was made, provides in part as follows: "When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof."

In Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, Chief Justice Taft in the opinion of the court said:

Page 147 of 267 U. S., 45 S. Ct. 280, 283, 69 L. Ed. 543, 39 A. L. R. 790: "The intent of Congress to make a distinction between the necessity for a search warrant in the searching of private dwellings and in that of automobiles and other road vehicles in the enforcement of the Prohibition Act is thus clearly established by the legislative history of the Stanley Amendment. Is such a distinction consistent with the Fourth Amendment? We think that it is. * * *"

Page 149 of 267 U. S., 45 S. Ct. 280, 283, 69 L. Ed. 543, 39 A. L. R. 790: "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. * * *"

Page 153 of 267 U. S., 45 S. Ct. 280, 285, 69 L. Ed. 543, 39 A. L. R. 790: "We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * *"

Page 158 of 267 U. S., 45 S. Ct. 280, 287, 69 L. Ed. 543, 39 A. L. R. 790: "As the main purpose of section 26 was seizure and forfeiture, it is not so much the owner as the property that offends. Agnes v. Haymes, 141 F. 631, 641, 72 C. C. A. 325. The language of the section provides for seizure when the officer of the law `discovers' any one in the act of transporting the liquor by automobile or other vehicle. Certainly it is a very narrow and technical construction of this word which would limit it to what the officer sees, hears or smells as the automobile rolls by and exclude therefrom when he identifies the car, the convincing information that he may previously have received as to the use being made of it. * * *"

Page 159 of 267 U. S., 45 S. Ct. 280, 287, 69 L. Ed. 543, 39 A. L. R. 790: "Finally, was there probable cause? In The Apollon, 9 Wheat. 362, 6 L. Ed. 111, the question was whether the seizure of a French vessel at a particular place was upon probable cause that she was there for the purpose of smuggling. In this discussion Mr. Justice Story, who delivered the judgment of the court, said (page 374 of 9 Wheat., 6 L. Ed. 111): `It has been very justly observed at the bar that the court is bound to take notice of public facts and geographical positions, and that this remote part of the country has been infested, at different periods, by smugglers, is a matter of general notoriety, and may be gathered from the public documents of the government.'"

Page 160 of 267 U. S., 45 S. Ct. 280, 287, 69 L. Ed. 543, 39 A. L. R. 790: "We know in this way that Grand Rapids is about 152 miles from Detroit, and that Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the most active centers for introducing illegally into this country spirituous liquors for distribution into the interior. It is obvious from the evidence that the prohibition agents were engaged in a regular patrol along the important highways from Detroit to Grand Rapids to stop and seize liquor carried in automobiles. They knew or had convincing evidence to make them believe that the Carroll boys, as they called them, were so-called `bootleggers' in Grand Rapids; i. e., that they were engaged in plying the unlawful trade of selling such liquor in that city. The officers had soon after noted their going from Grand Rapids half way to Detroit, and attempted to follow them to that city to see where they went, but they escaped observation. Two months later these officers suddenly met the same men on their way westward presumably from Detroit. The partners in the original combination to sell liquor in Grand Rapids were together in the same automobile they had been in the night when they tried to furnish the whisky to the officers, which was thus identified as part of the firm equipment. They were coming from the direction of the great source of supply for their stock to Grand Rapids, where they plied their trade. That the officers, when they saw the defendants, believed that they were carrying liquor, we can have no doubt, and we think it is equally clear that they had reasonable cause for thinking so. Emphasis is put by defendants' counsel on the statement made by one of the officers that they were not looking for defendants at the particular time when they appeared. We do not perceive that it has any weight. As soon as they did appear, the officers were entitled to use their reasoning faculties upon all the facts of which they had previous knowledge in respect to the defendants. * * *"

Page 161 of 267 U. S., 45 S. Ct. 280, 288, 69 L. Ed. 543, 39 A. L. R. 790: "If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient. * * *"

Page 161 of 267 U. S., 45 S. Ct. 280, 288, 69 L. Ed. 543, 39 A. L. R. 790: "The substance of all the definitions is a reasonable ground for belief in guilt. * * *"

Page 162 of 267 U. S., 45 S. Ct. 280, 288, 69 L. Ed. 543, 39 A. L. R. 790: "In the light of these authorities, and what is shown...