United States v. Walker, 8513.

• Decision Date: 03 August 1962
• Docket Number: No. 8513.,8513.
• Citation: 307 F.2d 250
• Parties: UNITED STATES of America, Appellee, v. Nicholas Bay WALKER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

307 F.2d 250 (1962)

UNITED STATES of America, Appellee, v. Nicholas Bay WALKER, Appellant.

No. 8513.

United States Court of Appeals Fourth Circuit.

Argued March 28, 1962.

Decided August 3, 1962.

Lamar Gudger, Asheville, N. C., for appellant.

William Medford, U. S. Atty., for appellee.

Before BOREMAN and BELL, Circuit Judges, and FIELD, District Judge.

FIELD, District Judge.

Appellant, Nicholas Ray Walker, along with Ira C. Pritchard and Elliott Russell, was tried before the District Court without a jury and convicted on a four-count indictment charging them with custody of an unregistered distillery,¹ carrying on the business of a distiller without having given bond as required by law,² making and fermenting mash at a place other than an authorized distillery,³ and possession of twelve gallons of distilled spirits in containers which did not have affixed thereto the required Federal taxation stamps.⁴ Appellant contends that the Court erred in denying his motion to suppress certain evidence as well as his motion for judgment of acquittal.

Briefly, the facts are as follows. Appellant and his family lived in a dwelling house located on the property of the Mill Springs Poultry Farm which farm was owned by a corporation and managed by Walker. Russell was a full-time employee on the farm and Pritchard was a part-time employee. A "No Trespassing" sign was posted a few yards from the Walker dwelling house at the entrance of the property and the property of the farm was surrounded by a fence and contained several large chicken houses and other out-buildings.

A distillery was discovered on the property adjacent to the farm at a distance of some 1600 feet from Walker's residence and about 200 yards from the chicken houses. In the early morning hours on September 27, 1961, Paul Branam, an investigator of the Alcohol and Tobacco Tax Division, heard a truck drive from the Walker residence to the general area of the chicken houses and heard the sound of objects being dropped from the truck. Shortly after the truck left, the officers heard the sound of a gasoline motor which pumped water to the distillery start at a nearby branch.

At 1:15 A.M. on the same morning the distillery and twelve gallons of non-tax paid whiskey were seized and destroyed, and Russell and Pritchard were arrested at the distillery site. An inspection was made of the area where the truck had stopped, and near the chicken pens the officers found 16 bags containing short lengths of slab wood similar to some found at the still site. In the same area, they found two cases of one-half gallon fruit jars, and at a point nearby 13 cases of one-half gallon fruit jars were found. A well defined path led from the still site to this general area.

The officers kept the area under surveillance and at about 2:30 A.M. a motor vehicle was heard to approach the Walker home. Soon thereafter Walker came down toward the chicken houses and was placed under arrest. Upon being asked what vehicle he had brought in, Walker indicated a 1960 model Ford pick-up truck. Branam had previously been advised that Walker would be back at the distillery that night and would be hauling sugar. Upon examination he found 600 pounds of sugar under a tarpaulin on the back of the truck. This was substantially the amount of sugar necessary to "mash back" the distillery. The sugar and the truck were seized as contraband and evidence thereof was presented at the trial. The tarpaulin covering the sugar was secured by weights and the sugar was not visible until the tarpaulin was raised.

We are of the opinion that the action of the District Court in denying the motion to suppress was correct. While the search was without a warrant, we think it can be sustained upon the authority of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. That case recognized the impracticability of requiring a search warrant for a vehicle as distinguished from a dwelling house or other structure. This principle of the Carroll case is now well established conditioned only, of course, on the fact that probable cause for the search must exist. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629. Appellant would limit Carroll to those cases where the vehicle is in transit on a public road or highway. However, this argument ignores the basic reason for the Carroll doctrine — that a vehicle by its very nature can be quickly moved out of the locality or jurisdiction in which the warrant might be sought and law enforcement thereby frustrated. This very practical consideration is present whether the vehicle is in transit on the open road or parked.

The remaining question then is whether here the investigating officers had probable cause for the search. The officers had information that Walker would be back at the distillery that night and would be bringing in a load of sugar. While it is true that the record is silent as to whether the informant was one considered reliable by the officer, that in itself is not controlling for it is merely one of several elements that may be considered in appraising probable cause on the part of the searching officers. The question is whether the facts or circumstances within their...