United States v. Vlahos

• Decision Date: 22 March 1937
• Docket Number: No. C-14799.,C-14799.
• Citation: 19 F. Supp. 166
• Parties: UNITED STATES v. VLAHOS et al.
• Court: U.S. District Court — District of Oregon

19 F. Supp. 166

UNITED STATES v. VLAHOS et al.

No. C-14799.

District Court, D. Oregon.

March 22, 1937.

Manley B. Strayer, Asst. U. S. Dist. Atty., of Portland, Or., for the United States.

Paul M. Long and Frank Swope, both of Portland, Or., for defendants.

JAMES ALGER FEE, District Judge.

The defendants were indicted for a conspiracy to violate the laws relating to the operation of a distillery and the Liquor Tax Administration Act June 26, 1936, 49 Stat.1939, and also, in separate counts, for the substantive offenses of carrying on the business of distillers of spirits and liquors without having given bond as required by law, and for having in their possession untaxpaid distilled spirits.

A motion to suppress the evidence was made by all three defendants upon the ground that an illegal search was made whereby evidence was obtained. The court reserved the motion until trial. The cause was tried before the court without a jury.

The officers had reliable information that Vlahos was operating a still in the vicinity of Wilsonville and hauling supplies and liquor across the Wilsonville Ferry of the Willamette river. On September 23d the officers saw a heavily loaded truck cross the ferry at night and discovered later that the truck was registered under the name of John Vlahos, and on the night of September 25th they again saw the truck cross the ferry and followed it to the F. W. Wagner farm. For several nights thereafter they observed heavily loaded trucks and cars drive in and out of the Wagner premises and saw defendants unload bulky articles at the distillery and load what appeared to be kegs full of liquor. One night they saw a truck leave the premises with its lights extinguished, preceded by a coupé driven by Vlahos, both vehicles being heavily loaded, and at the same time detected a faint odor of mash coming from the direction of the building and heard a water pump running at the barn. On the night of October 1st the officers went into a pasture near the Wagner residence. That time they again heard the water pump and detected the odor of fermented mash and heard the sound of the roar of burners, and on the same night they saw a coupé go to the stillhouse, unload supplies, reload, and leave. Similar activities were noted the next night from a similar position. The distillery was in a separate inclosure surrounded by a high fence of chicken wire in which there was a gate approachable only through the yard of the Wagner residence. This gate was apparently guarded by some sort of a signal device. While watching on the night of October 3d, the officers saw a coupé drive up to the distillery while they were watching the premises from a grain field nearby. They followed up the road through the yard surrounding the Wagner residence, and before entering the inclosure occupied by the distillery detected a strong odor of fermenting mash, according to their testimony. They went inside the inclosure close to the building where they heard some one say: "We will run the mash tomorrow night." One of the officers pulled back a corner of the covering over a window and saw the condenser of a still and other paraphernalia connected with the distillation of liquor. Inside the inclosure the odor of mash was very strong. At the same time, one of the officers saw in the back seat of the coupé a 25-pound package of yeast and a bottle with no revenue stamps attached, containing an amber-colored fluid. The defendant Vlahos came out of the building to get the yeast and returned to the building. Later, Vlahos came out from the distillery and was arrested as he was entering the car. The officers then entered the building and arrested Karmones. Upon this entry, the still and other evidence, which it is sought to suppress, were seized, together with the bottle of untaxpaid liquor in the car and two kegs of untaxpaid whisky which were in the rear of the coupé, concealed. There was contrary testimony of a state officer who accompanied the federal officers at the time of the seizure to the effect that no odors could be smelled outside of the distillery and that there was no burner under the still and that the bricks beneath were cold. Admission of the defendants makes it clear that the defendant Wagner rented the distillery with the inclosure to Vlahos for $200 a month.

The building and the inclosure were used as a distillery and for no other purpose, and that portion of the premises was under lease from Wagner to Vlahos.¹ The motion of the defendant Vlahos to suppress will be considered in the first instance. The officers trespassed upon the premises of Wagner in order to reach this inclosure, but Vlahos can take no advantage of that circumstance.² If the testimony of the officers is given full weight, they unquestionably were in possession of sufficient evidence to have obtained a search warrant for these premises prior to the night when the arrest was made, and each day they were in Portland, where such a warrant could have been obtained. If a dwelling house were involved instead of a building used exclusively for the operation of a distillery and in which there were persons actually engaged in the illegal transaction, the search could not be upheld. The officers, at the time of their entry, did not know that the distillery was not within the curtilage of the Wagner dwelling house but had been severed therefrom by the technical legal barrier of the lease from Wagner to Vlahos. Without the knowledge of these facts, the action of the officers was high-handed and arbitrary in the extreme. They had ample opportunity to obtain a search warrant day after day but did not do so. The reason for this neglect is not apparent but seems to indicate that their superior officer did not consider the information which was available prior to the night of October 3d as sufficient basis for the application.

But it is said there was sufficient ground to arrest the defendant Vlahos without a warrant. It must be remembered that the charge in the instant case is one of felony,³ and this distinguishes a great mass of cases under the former prohibition laws when the charge was one of misdemeanor.⁴ In a case of misdemeanor, the officers have no right to arrest unless the offense was committed in their presence,⁵ and even then, there is some doubt whether the right exists unless it amounts to a breach of the peace. If a felony actually has been committed and the officers have reasonable grounds to believe that the person arrested is the one who committed the crime, they have probable cause for the arrest.⁶ Here a felony actually had been committed. Before the officers entered the leased inclosure, they had in their possession facts which certainly indicated to them that a felony was being committed and that Vlahos was the principal offender. The nocturnal activity extending over a considerable period at this barn, coupled with the presence of Vlahos of whom they had the right to entertain suspicion because of the information which they had received, the operation of the trucks without lights, the smell of fermenting mash, and the sound of roaring burners were sufficient to advise them of the illegal act. Finally, they did actually arrest Vlahos on the outside of the building. Following the arrest of Vlahos, they actually entered the building for the purpose of arresting Karmones, and when they did so the illegal operation was disclosed to them. The great difficulty arises in the fact that the officers have directly testified that they did not go into the inclosure with the intention of arresting anyone, but solely for the purpose of making a further search. The information obtained by this further search was the fact of the presence of the residue of the mash in an outhouse, the presence in the car driven by Vlahos of a bottle probably containing untaxpaid liquor, and a glance through the window at the distillery itself. In Papani v. United States, 84 F.(2d) 160, an illuminating opinion by the Circuit Court of Appeals of the Ninth Circuit, written by Judge Haney, the intention of the officers at the time they entered the inclosure is established as the touchstone. Notwithstanding the declaration of the officers, the evidence indicates that they were "galled" at the direction of their superior to obtain further evidence of an illegal operation before asking for a search warrant, and that they had actually decided to consummate the transaction on that occasion by search or arrest as circumstances dictated.

In one respect, circumstances justified their action. They were dealing with a fast-moving automobile which seemed to have some connection with the illegal operation.⁷ In this car they saw evidence of the commission of a felony which alone justified the arrest of Vlahos and the subsequent search of the car.⁸ But the evidence as to the contents of the car was not obtained upon the open road, but involved a trespass with the intention of making a search. Likewise, by examining the contents of the small outhouse and raising the covering of the window, other evidence had been obtained prior to the arrest.

Finally, the government raises the point that the search here involved was not of a dwelling house or of a building within the curtilage of a dwelling house. By virtue of the lease from Wagner to Vlahos, this distillery and the premises within its inclosure were detached from the dwelling house as efficaciously as if this parcel had stood in the name of John Vlahos in fee simple.⁹

There is a marked conflict in the decisions as to whether the same protection is accorded to a detached building upon a separate parcel of ground as is given to a dwelling house or building within its curtilage. "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures" is guaranteed by the language of the Fourth Amendment. Some opinions go so far as to indicate that there is no distinction.¹⁰ The language...