United States v. Vleck

• Decision Date: 10 November 1936
• Docket Number: No. 7886.,7886.
• Citation: 17 F. Supp. 110
• Parties: UNITED STATES v. VLECK.
• Court: U.S. District Court — District of Nebraska

17 F. Supp. 110

UNITED STATES v. VLECK.

No. 7886.

District Court, D. Nebraska, Omaha Division.

November 10, 1936.

Joseph T. Votova, Dist. Atty., and Fred G. Hawxby, Deputy Dist. Atty., both of Omaha, Neb., for the United States.

J. C. Kinsler, of Omaha, Neb., for defendant Joe Vleck.

I. J. Dunn, of Omaha, Neb., for defendant Leonard Johnson.

DONOHOE, District Judge.

The indictment charges the defendant in some six counts with unlawfully operating a distillery in his dwelling house in violation of the Revenue Law. The defendant has presented his motion to suppress the evidence seized by the officers upon the ground that the search and seizure were unlawful and were in violation of the defendant's constitutional rights under the Fourth and Fifth Amendments to the Constitution of the United States. The showing on the motion consists of the affidavits of the defendant and his wife, a transcript of the testimony of the officers before the United States Commissioner, and the affidavits of Officers Charles M. Davis and Frank C. Copeland.

There is some difficulty in reconciling some of the decisions of the courts dealing with the law applicable to a case like this. This is necessarily due to the fact that each case must depend upon its own state of facts and no two cases are exactly alike in that respect. The provisions of the Constitution are plain. The Fourth Amendment declares: "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 persons or things to be seized." And the Fifth Amendment, among other things, declares that: "No person shall be * * * compelled in any Criminal Case to be a witness against himself."

When undisputable evidence of guilt is obtained as a result of an unlawful search and seizure, there is the constant tendency of courts and law enforcement officers to search out some way of circumventing the constitutional guaranties in order that a known and established criminal may be punished for his crime. To detect this tendency, one need only study the many opinions that have been written by the courts. This tendency is to be decried. Law enforcement is not assisted by a denial of the defendant's constitutional rights. If we are to have respect for law, law enforcement must be within the law. This tendency has been recognized and denounced by the Supreme Court of the United States in a number of cases. I quote the following from the opinion of Justice Sutherland, in the case of Byars v. United States, 273 U.S. 28, 32, 47 S.Ct. 248, 249, 71 L.Ed. 520: "The court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Constitutional provisions for the security of person and property are to be liberally construed, and `it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746; Gouled v. United States, 255 U.S. 298 304, 41 S.Ct. 261 65 L.Ed. 647, supra." Moreover, in the same opinion, I quote the following language on page 29 of 273 U.S., 47 S.Ct. 248, 71 L.Ed. 520: "Nor is it material that the search was successful in revealing evidence of a violation of a federal statute. A search prosecuted in violation of the Constitution is not made lawful by what it brings to light; and the doctrine has never been recognized by this court, nor can it be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of the unlawful search where a timely challenge has been interposed. Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 65 L.Ed. 647; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391, 40 S.Ct. 182, 64 L.Ed. 319 24 A.L.R. 1426; Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 51 A.L.R. 409."

The whole difficulty seems to arise from the latitude allowed in the Fourth Amendment by the words "unreasonable searches and seizures." The general principles of the law are readily recognized, but the decisions turn at this point on the particular facts in each case. Generally speaking, a search warrant is required for a lawful search and seizure, although not necessarily in all cases, but the right to search without the warrant is the exception and not the rule. Searches and seizures without warrants are not in harmony with the traditions of our government, and while not all searches made as a result of a warrant are reasonable, still the formality required for the obtaining of a warrant insures a more reasonable search than in its absence.

In the case at bar, we are dealing with a search incident to an arrest, and in a case of a proper arrest, it is well recognized that a search without a warrant is justified. Likewise is the arrest by an officer without a warrant for a crime committed in his presence justified, and it is contended here that a crime was being committed in the presence of the officers, and that the arrest was made for that reason, and as an incident to the arrest, the search and seizure was made. To warrant the search and seizure, there must first be a lawful arrest. The search and seizure must be an incident to the arrest, and not the arrest a preliminary to the search and seizure. In other words, the arrest must have been made upon information then on hand that a crime was being committed, and a reasonable belief that the person arrested was the perpetrator of the crime. An arrest under such circumstances is justified without a warrant only for two reasons: First, to restrain and prevent further commission of the crime; and, second, to apprehend and prevent the absconding of the criminal. A search and seizure without a warrant is justified: (1) For the preservation of the evidence justifying the arrest without a warrant; and (2) for the purpose of establishing the crime, and securing the conviction and punishment of the criminal.

Now, there is a sharp distinction with reference to the necessity of a warrant for the search of an automobile or other moving vehicles, and a home or other structure. Note the following statement of the law by Chief Justice Taft, in the case of Carroll v. United States, 267 U.S. 132, 153, 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."

We think, from an examination of the many decisions bearing directly on the questions that we now have involved, that the evidence, which as stated is distinctive in each case, should be examined and analyzed to determine:

(a) Did the officers invade the precincts of the home to make a lawful arrest?

(b) Was the search and seizure of the evidence supporting the arrest reasonable under the particular facts?

(c) Did the officers invade the precincts of the home for the purpose of obtaining evidence of the commission of a crime, and having' obtained the evidence, was the arrest a consequence thereof?

In other words, was the search and seizure justified by the arrest, or was the arrest justified by the search and seizure?

The more recent cases of the Circuit Court of this circuit submitted to the court by counsel on either side, which have to do with the search of a home, are: Raniele v. United States (C.C.A.) 34 F.(2d) 877, 878; Wida v. United States (C.C.A.) 52 F.(2d) 424, 425; Leubbert v. United States (C.C. A.) 74 F.(2d) 357, 358.

In the Raniele Case, we quote the statement in the opinion: "The record clearly shows, and we understand the government concedes, that, apart from the evidence obtained by the search, there was no sufficient evidence to support a verdict of guilty." The facts, as stated, are as follows: A prohibition agent, accompanied by another man, went to the place where the defendant lived. The agent had been told that there was a still in a house in that village. The house was described to him but he did not know who resided there. The officer and a companion drove into an alley at the rear of the house, and from 60 to 80 feet distant therefrom. They alighted, entered the yard, and approached the house. Neither the officer nor his companion had a search warrant, nor did they have any information on which a search warrant could be obtained. When within 30 or 40 feet of the house, they smelled an odor which they recognized as the odor of fermenting mash. Up to...