United States v. Stafford

Citation296 F. 702
PartiesUNITED STATES v. STAFFORD et al.
Decision Date25 April 1923
CourtUnited States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky

Sawyer A. Smith, U.S. Dist. Atty., of Covington, Ky.

King Swope and Chas. Fennell, both of Lexington, Ky., for defendants.

COCHRAN District Judge.

This case is before me on defendants' motion to suppress the evidence upon which the United Staes relies to bring about a conviction, on the ground that it was obtained upon an illegal search and seizure. It has been made upon the calling of the case for trial, but in advance thereof, and evidence has been heard. As I feel certain that the motion should be overruled, I will not delay the trial of the case for further investigation and treatment of the question raised, but proceed to give the views I now have, and which have driven me to that conclusion.

It is the law that a peace officer has the right to arrest and to search a person, if he is committing a criminal offense in the officer's presence. When, then, is it to be said that a criminal offense is being committed in such officer's presence so as to justify an arrest and search? This is the sole question, in such a case as we have here, that calls for elucidation. In disposing thereof it only tends to blind one to elaborate upon the constitutional right of freedom from search and seizure. The constitutional provision does not prohibit every search and seizure. It only prohibits an unreasonable search and seizure. Where there has been a lawful arrest, there is always the right to search and seize. And that provision has nothing to do with what is and what is not a lawful arrest. Resort has to be had to the common law to determine that matter; and according thereto, as stated, an arrest, and hence a subsequent search and seizure is always lawful where a criminal offense is being committed in the officer's presence, and also, according thereto such an offense is so committed where things are observed by the officer which, viewed in the light of common knowledge afford reasonable ground for suspecting that such is the case. In support of this statement I quote from the opinion of Judge Deady, one of the able District Judges of former years, in the case of Ex parte Morrill (C.C.) 35 F. 261, 267. After quoting the Fourth Amendment to the federal Constitution, he had this to say:

'It has never been understood that this provision was intended to or does prevent an arrest by a peace officer-- a sheriff or constable-- for a crime committed in his presence. Whart. Crim. PI. Sec. 8; 1 Bish. Crim. Proc. Sec. 181. The knowledge derived by the officer from his observation, acting under the sanction of his official oath, is considered equivalent to information supported by the oath of affirmation of another. Now, a warrant of arrest may issue on 'probable cause,' supported by oath, and by analogy a peace officer may arrest on probable cause derived from his own observation. At common law a peace officer might arrest without warrant 'on reasonable grounds of suspicion,' and the facts and circumstances which furnish such grounds of suspicion amount to 'probable cause,' under the Constitution, which is such cause as will constitute a defense to an action for false imprisonment or malicious prosecution. Whart. Crim. PI. Sec. 9; 1 Bish. Crim. Proc. 182; Rap. & L. Law Dict. ' False imprisonment,' 'Malicious Prosecution.' Probable cause is a probability that the crime has been committed by the person charged. The facts stated upon oath 'must induce a reasonable probability that all the acts have been done which constitute the offense charged.' Cranch, C.J., in U.S. v. Bollman, 1 Cranch, C.C. 379; Wheeler v. Nesbitt, 24 How. 551. In other words, a crime is committed in the presence of the officer when the facts and circumstances occurring within his observation, in connection with what, under the circumstances, may be considered as common knowledge, give him probable cause to believe, or reasonable ground to suspect, that such is the case. It is not necessary, therefore, that the officer should be an eye or an ear witness of every fact and circumstance involved in the charge, or necessary to the commission of the crime.'

It will be noted that what he says is based on such standard authorities on criminal law as Wharton and Bishop. It will be further noted that, according to this statement, in determining whether there was 'probable cause to believe or reasonable ground to suspect,' two things are to be taken into consideration, to wit, what was observed, and what was common knowledge. The former is to be viewed in the light of the latter. In order, then, for it to be said that an offense is committed in the arresting and searching officer's presence, it is not essential that what was observed by him should have been such as to convince beyond a reasonable doubt, much less to convince beyond any doubt, as it has been reported a circuit judge of this state charged a grand jury. Such a showing is not required to be made to obtain a search warrant to search even a private dwelling. No more than a showing of probable cause is required. The matter has been well put in the recent case of United States v. Rembert, 284 F. 996, which is now before me. I quote rather liberally from the opinion. It is said:

'If the court can find in any case that the officer had a bona fide belief, that by his senses he had detected or discovered a violation of the law, and if in the opinion of the court the evidence of the senses on which the officer acted was sufficient grounds for the officer reaching that belief, then the arrest must be held justified, and the evidence obtained on it legal. If, on the contrary, it is the court's opinion, either that the officer had no real belief that a violation of the law had been discovered, or if it is the opinion of the court that this belief was based not upon probable cause, the arrest is not legal, the search is not effective, and the evidence obtained thereby may not be availed of.'

Again it is said:

'Wherever a felony has been committed, either in the presence of the officer or as to which the officer has a belief induced by reasonable grounds, or a misdemeanor has been committed in the presence of the officer, that is, of which the officer has evidence by his senses sufficient to induce a belief in him based upon reasonable grounds of belief, an arrest may be made without a warrant, and the instruments and evidence of crime seized.'

And again it is said:

'An offense occurs in the presence of an officer, and a discovery may be said to have been made by the * * * officers, when the evidence of their senses induces them to believe, upon reasonable grounds for belief, that an offense is being committed, and it is not necessary, if a sincere belief exists, and this belief is based upon reasonable grounds, that the officer actually see, before apprehension is made, the liquor the subject of the apprehension.'

Still further it is said:

'Officers should be very loath to interfere with the rights of citizens, and should not arrest on mere suspicion, and wherever an arrest and consequent search of a person or vehicle is made without warrant, the government must be prepared to show, if it expects the evidence to be admissible, that the arrest and search was not a mere exploratory enterprise for the purpose of discovery, but was based upon a sincere belief, with reasonable grounds therefor, that an offense had been committed by the person or vehicle arrested.'

The facts of that case were these: About midnight on a moonlight night, on a country road on the outskirts of Houston, Tex., a prohibition officer saw approaching him a Ford car driven by the defendant. The progress of the vehicle, as testified to by the officer, was marked by such a zigzagging course that he concluded that the driver was intoxicated and that the vehicle was being used to transport liquor. On that belief he stopped the vehicle, and, on search of it, discovered a bottle of liquor and that the defendant had been drinking. It was held that the arrest and search were lawful. It was said in conclusion:

'In the case at bar the court is convinced that Officer Myers had a sincere and real belief that, from the way and manner in which the car was being driven, the driver was intoxicated and that the car was being used to transport liquor contrary to law; and while the evidence of his senses on which that conclusion was based might at first blush appear to be meager, taken in the light of the experience of the officer in arresting and apprehending persons who had been handling the brand of liquor known as 'moonshine,' the court does not feel justified in holding that the officer had not probable cause for the belief engendered by the facts brought home to his senses.'

It is thus seen that the arrest and search were upheld in that case, notwithstanding it was recognized that the evidence on which the officer acted was meager. It was so held because the officer was experienced in such matters, and was sincere in his belief that the driver of the car was transporting liquor in violation of the National Prohibition Act (Comp St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.). It seems to me that these expressions and this decision are sound. I would put the matter this way: In every case where there is some evidence tending to show that an offense is being committed, and it is such as to cause the officer sincerely to believe that such is the case, and it turns out that his belief is correct, the arrest and subsequent search and seizure are legal. Whilst it may be the fact that, at the time of the arrest and search, he does not know what he subsequently discovers, yet the fact that the belief is found to be correct accredits the belief, and...

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7 cases
  • Marron v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 5, 1925
    ...or an ear witness of every fact and circumstance involved in the charge, or necessary to the commission of the crime." In U. S. v. Stafford (D. C.) 296 F. 702, 703, 706, the above authority is followed. The court "In every case where there is some evidence tending to show that an offense is......
  • Smith v. Hubbard
    • United States
    • Minnesota Supreme Court
    • July 18, 1958
    ...State v. Reynolds, 101 Conn. 224, 125 A. 636 (conducting a saloon); United States v. Wiggins, D.C.Minn., 22 F.2d 1001; United States v. Stafford, D.C.E.D.Ky., 296 F. 702; Ingle v. Commonwealth, 204 Ky. 518, 264 S.W. 1088; King v. State, 92 Okl.Cr. 389, 223 P.2d 773; Abbott v. State, 30 Okl.......
  • State v. Quock, 6757.
    • United States
    • Montana Supreme Court
    • April 29, 1931
    ...found to be correct accredits the belief, and gives weight to the evidence on which the officer acted.” United States v. Stafford (D. C.) 296 F. 702, 706. When the facts are uncontroverted, the existence of probable cause is a judicial question. Jenkins v. State, supra. If the facts are con......
  • State v. Hum Quock
    • United States
    • Montana Supreme Court
    • April 29, 1931
    ... ... it is sufficient." Chief Justice Taft in Carroll v ... United" States, 267 U.S. 132, 45 S.Ct. 280, 288, 69 L.Ed ... 543, 39 A. L. R. 790 ...         \xC2" ... to the evidence on which the officer acted." United ... States v. Stafford (D. C.) 296 F. 702, 706 ...          When ... the facts are uncontroverted, the ... ...
  • Request a trial to view additional results

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