United States v. Vatune

• Decision Date: 31 August 1923
• Docket Number: 12513.
• Citation: 292 F. 497
• Parties: UNITED STATES v. VATUNE.
• Court: U.S. District Court — Northern District of California

292 F. 497

UNITED STATES v. VATUNE.

No. 12513.

United States District Court, N.D. California, Southern Division.

August 31, 1923

John T Williams, U.S. Atty., and Kenneth M. Green, Asst. U.S. Atty both of San Francisco, Cal.

Edward A. O'Brien, of San Francisco, Cal., for defendant.

BLEDSOE District Judge.

This is a motion for the return of 402 bottles of wine, the return of the seized automobile, and the quashing of an information regularly pending, charging the possession and transportation of the said 402 bottles of wine. Defendant's motion is based upon his affidavit, which is childlike and bland in its simplicity: In his truck he was carefully driving along the right-hand side of Van Ness avenue in San Francisco, minding his own business, and conducting himself with apparent perfect propriety. In the truck, 'carefully concealed from the public view by the fact that it was in a crate, and by the further fact that it was carried under the cover of said truck,' reposed the 402 bottles of wine hereinabove referred to. Defendant then avers that he was passed by certain agents of the national prohibition force, traveling along the other side of the street, who, observing him and his truck, ordered him to drive to the edge of the sidewalk, and then, searching his truck, discovered his wine, so carefully concealed, and, placing him under arrest, seized the wine and truck.

In substance, his contention is that, proceeding along the street with his concealed cargo of contraband, he was enjoying the protection of the Fourth and Fifth Amendments to the federal Constitution; that, in consequence, the search and seizure of his truck and wine, and his own arrest, without process of any kind, justify all the relief asked for herein. In this behalf he cites United States v. Rembert (D.C.) 284 F. 996, and United States v. Myers (D.C.) 287 F. 260. The motion was submitted by the government without argument.

An affidavit of a prohibition agent in the record is to the effect that he was informed by an apparently credible person-- an 'employee of the federal Prohibition Director'-- that a certain designated truck carried intoxicating liquor unlawfully; that, going to the place indicated, he saw defendant's truck; that, looking through the slats of the crates on the truck, he saw some bottles of wine; that he 'also saw in the front seat on the truck several lug boxes, containing bottles, and that said boxes were not covered or hidden from view, but, on the contrary, were in plain sight'; that he thereupon inquired of defendant what he had in the truck, and defendant answered that he had claret wine, and also said that he was transporting it pursuant to a permit, 'and that the same was at the custom house.' The agent thereupon investigated (probably by telephone), and, finding that no such permit had been issued, or even applied for, forthwith placed the defendant under arrest and seized the wine and truck.

Though not stated in so many words, the real contention of defendant is that, because of his precautionary efforts toward effective concealment of his unlawful burden, the terms of the Fourth and Fifth Amendments actually protected him in the positive and flagrant violation of the Eighteenth Amendment. The quality of citizenship that would lend itself with complacency to such a contention is not such as to win from this court any pronounced degree of sympathetic consideration.

The Fourth Amendment affords inviolable protection to the people with respect to 'their persons, houses, papers, and effects, against unreasonable searches and seizures. ' What is an 'unreasonable' search or seizure is always a judicial question (United States v.

Bateman (D.C.) 278 F. 231, 232), and is determinable from a consideration of the circumstances involved. Officers of the government act under legal authority, in pursuance of oath and official station, and it will be presumed, in the absence of countervailing proof, that they have performed their duty-- that is, that they have not been guilty, in a given instance, of making an unreasonable search or effecting an unreasonable seizure. The burden of showing the contrary, then, is upon him who contends to the contrary.

It will be conceded, of course, that an officer has no right to assume that an apparently innocent and unoffending person is actually engaged in a violation of the law. Therefore such officer would not be acting reasonably--would be acting 'unreasonably'-- were he to subject apparently innocent and unoffending persons to search or their effects to seizure. Having no reason to believe in their guilt, it would be unreasonable to act as if they were in fact guilty. Therefore, to justify an arrest-- an invasion of the rights of the person, or a search or seizure; an invasion of the rights of the property-- of an individual, sufficient to avoid the protective provisions of the Fourth Amendment, the officer must be in possession of such knowledge, from the employment of his own senses, or from information actually imparted to him by another, as to cause him honestly and in good faith, acting with reasonable discretion, to entertain the belief or suspicion that the law is being violated. Ballard v. State, 43 Ohio St. 16, 1 N.E. 76, 79; Ex parte Morrill (C.C.) 35 F. 261, 267; United States v. Snyder (D.C.) 278 F. 650; Wharton's Crim. Proc. (10th Ed.) Sec. 34. And if the suspect be committing a concealed crime, one not open to view, the greater the obvious necessity, of course, of relying upon information. Ballard v. State, supra.

In these days of widespread violation of the law, due to large temptation, big profits, and unrestrained appetites, together with the facile employment of the automobile in aid of successful consummation thereof, an officer ought not to be censured nor society penalized by a meticulous refusal to support a prosecution, if the officer, even in the absence of a warrant, and even with respect to a mere misdemeanor acting upon the appearances, determines that the law may be maintained only by the 'immediate apprehension' (Wharton's Crim. Proc. (10th Ed.) Sec. 35) of the offender, providing, always, of course, that the officer acts in good faith and upon reasonable grounds of suspicion (Houck v. State, 106 Ohio St. 195, 140 N.E. 112). And it ought to be obvious that the claim of good faith of the officer will always be materially supported, though of course it could not be created, by the subsequent discovery of evidence tending to support the charge that the law was then and there being violated. The event contributes justification for the act. In this behalf the facts and conclusions in Ballard v. State, supra, are peculiarly apposite herein. There the officer, acting upon information coming from...