United States v. Sebo, 6774.

• Citation: 101 F.2d 889
• Decision Date: 04 February 1939
• Docket Number: No. 6774.,6774.
• Parties: UNITED STATES v. SEBO.
• Court: U.S. Court of Appeals — Seventh Circuit

101 F.2d 889 (1939)

UNITED STATES v. SEBO.

No. 6774.

Circuit Court of Appeals, Seventh Circuit.

February 4, 1939.

Alfred E. Roth, of Chicago, Ill., for appellant.

William J. Campbell, U. S. Atty., Warren Canaday, First Asst. U. S. Atty., and A. Bradley Eben, Asst. U. S. Atty., all of Chicago, Ill., for the United States.

Before EVANS, TREANOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

The appellant was found guilty by a verdict of a jury under two counts of an indictment charging him with unlawful possession and transportation of distilled spirits, the containers of which did not have revenue stamps affixed thereto. The offenses charged were violations of Sec. 201 of the Liquor Taxing Act of 1934, which is Sec. 1152a, Title 26, U.S.C.A., and Sec. 1441(a), Title 26, U.S.C.A.

The errors assigned are (1) the court erred in overruling appellant's motion to suppress the evidence, (2) in allowing proof of other offenses, (3) permitting a witness to testify to conclusions, (4) in instructing the jury, and (5) the evidence is not sufficient to justify a conviction.

Counsel for appellant earnestly argues that the federal officers did not have reliable information such as would justify them in searching appellant's automobile without a warrant.

The pertinent facts concerning the search are as follows: On July 31, 1937, investigators for the Alcohol Tax Unit, having no knowledge of their own nor of the reliability of the complaint, but pursuant to orders received from their superior officer, that there was an illicit distillery in the rear of certain premises at Chicago, Illinois, proceeded to the premises; arriving there they detected the odor of fermenting mash coming from a garage at the rear of 734 West Ohio Street. It was not a registered distillery. The garage was approached by a driveway leading from a street directly to a large sliding door. On August 2, 1937, the investigators returned to the premises and again detected a strong odor of fermenting mash coming from the garage. One of the officers observed appellant back a truck, riding lightly, into the driveway through an open gate, after which the gates were closed; ten minutes later, the same truck, heavily loaded, was driven out of the driveway; the officers followed the truck some distance, stopped it and inquired of appellant what he had in the truck and were informed that there was nothing in the truck. They thereupon searched it and found 37 five-gallon cans of alcohol weighing 6,528 pounds, the containers having no revenue stamps affixed thereto. It was a Ford Model "A" truck, panel body, so painted that it was impossible to see the interior.

Probable cause has been defined as reasonable grounds of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged. It is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. It is enough if the apparent facts which come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched, and what constitutes probable cause must be determined from the standpoint of the officer with his skill and knowledge, rather than from the standpoint of the average citizen under similar circumstances, Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Dumbra v. U. S., 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032; Husty v. U. S., 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407; Kopp v. U. S., 7 Cir., 55 F.2d 878, and Stobble v. U. S., 7 Cir., 91 F.2d 69; and the information which causes the superior officer of the investigators to order them to investigate the premises is unimportant. The legality of the officer's action does not depend upon the credibility of something told, but upon what they saw, i. e., what took place in their presence. Scher v. U. S., 59 S.Ct. 174, 83 L.Ed. ___, opinion by United States Supreme Court on December 5, 1938.

From the facts in the possession of the officers and as shown by this record, we are of the opinion that they were justified in believing the truck was being used in the commission of a crime. The search was, therefore, on...