United States v. Walters

• Decision Date: 02 May 1961
• Docket Number: Crim. A. No. 714.
• Citation: 193 F. Supp. 788
• Parties: UNITED STATES of America, Plaintiff, v. Bessie Ann WALTERS, Defendant.
• Court: U.S. District Court — Western District of Arkansas

193 F. Supp. 788

UNITED STATES of America, Plaintiff, v. Bessie Ann WALTERS, Defendant.

Crim. A. No. 714.

United States District Court W. D. Arkansas, Hot Springs Division.

May 2, 1961.

Charles W. Atkinson, U. S. Atty., James A. Gutensohn, Asst. U. S. Atty., Fort Smith, Ark., for plaintiff.

C. Floyd Huff, Jr., Hot Springs, Ark., for defendant.

JOHN E. MILLER, Chief Judge.

Statement

A hearing on the motion of the defendant filed herein on January 25, 1961, to suppress the evidence and dismiss the indictment was held April 17, 1961. At the conclusion of the hearing, the court entered an order sustaining the motion and dismissing the indictment.

Because of the interest expressed by various law enforcement officers, this opinion is being filed setting forth the grounds and the reasons announced orally by the court at the conclusion of the hearing.

Opinion

The indictment charges that the defendant, Bessie Ann Walters, "did possess 50 gallons of distilled spirits, to-wit: whiskey, the immediate containers thereof not having affixed thereto stamps evidencing the payment of the tax due thereon in violation of 26 U.S.C., Secs. 5604(a) (1) and 5205(a) (2)."

26 U.S.C. § 5205(a) (2) provides:

"No person shall transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof is stamped by a stamp evidencing the determination of the tax or indicating compliance with the provisions of this chapter."

The indictment is sufficient to charge a violation of the statute.

The penalty is prescribed by 26 U.S.C. § 5604(a) (1), which reads as follows:

"Any person who shall (1) transport, possess, buy, sell, or transfer any distilled spirits, required to be stamped under the provisions of section 5205 (a) (2), unless the immediate container thereof has affixed thereto a stamp as required by such section * * * shall be fined not more than $10,000 or imprisoned not more than 5 years, or both, for each such offense."

The motion of defendant, in effect, charges:

(1) That the home of the defendant was entered and searched by three police officers of the City of Hot Springs, Arkansas, before daylight between 6:00 and 6:30 a. m. on December 24, 1960; that as a result of said search the police officers found, seized, and took possession of 50 gallons of untaxpaid distilled spirits.

(2) That the place where the distilled spirits were found and seized was the home of the defendant, and had been occupied by her as her residence for a number of years, and that she was in legal possession of the premises at the time the search was made; that the 50 gallons of untaxpaid distilled spirits were her own property.

(3) That the search of the defendant's residence was in violation of defendant's rights against unlawful searches and seizures as guaranteed by the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States in that (a) the affidavit for search warrant does not state probable cause and was predicated upon mere suspicion; (b) that the search warrant itself is invalid in that the affidavit upon which it was predicated did not state nor was it based upon probable cause, but was based upon mere suspicion; (c) that the premises to be searched were not particularly described in either the affidavit for the search warrant or the warrant; that the police officers were merely directed to search for "illegal whisky" concealed at 111 McCafferty in the residence of Bessie Cook in the City of Hot Springs, Garland County, Arkansas; (d) that no person by the name of Bessie Cook lived or resided at 111 McCafferty Street in the City of Hot Springs, Garland County, Arkansas, or had ever lived or resided there within the defendant's knowledge; (e) that neither the affidavit for the search warrant nor the warrant itself particularly described the place to be searched or things to be seized as required by the Fourth Amendment to the Constitution of the United States of America and by federal statute.

(4) That at the time the search and seizure was made, the defendant was not arrested or placed under bond; that she was not arrested upon the charge until Tuesday, January 3, 1961, ten days after the search and seizure; that on that date she was arrested by the city police officers and taken to the City Jail in the City of Hot Springs, at which time the investigators of the Alcohol, Tobacco Tax Unit were called by the said police officers, and the defendant was delivered to the custody of said federal officers who adopted the case, with the result that she was arraigned before Judge M. C. Lewis, Jr., on January 4, who was acting as United States Commissioner, and held to await the action of the grand jury for the Western District of Arkansas.

(5) No return was made upon the search warrant by the police officers and no inventory or statement was filed showing what, if anything, was found and seized as a result of the search.

Amendment Four to the Constitution of the United States provides:

"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."

Rule 41(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., provides that a search warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist, or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The warrant shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time.

Subsection (e) of Rule 41 provides that a person aggrieved by an unlawful search or seizure may move the district court for the district in which the property was seized to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) that there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) that the warrant was illegally executed.

The judge shall receive evidence on any issue of fact necessary to the decision of the motion.

The motion shall be made before trial or hearing unless opportunity therefor did not exist, or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.

The affidavit upon which the warrant was issued is as follows:

"In the Municipal Court of Hot Springs, Arkansas

"Criminal Division

"State of Arkansas, | Affidavit for "County of Garland, > Search Warrant "City of Hot Springs |

"I, Virgil Rogers, do solemnly swear that certain personal property to-wit: Illegal Whiskey, has been concealed at 111 McCafferty and that I do in truth suspect that such property is concealed in the Residence occupied by Bessie Cook in the City of Hot Springs in State aforesaid, and pray a warrant from said Court to search said premises.

"/s/ Virgil E. Rogers

"Subscribed and sworn to before me this 23rd day of December, 1960.

"/s/ M. C. Lewis, Jr. "Municipal Judge"

The warrant issued upon the affidavit is as follows:

"Search Warrant Served 12-24-60 "Robberts, Rogers Digby, Brooks "State of Arkansas | "County of Garland > ss |

"The State of Arkansas, To Any Sheriff, Coroner, Constable or Policeman in the State:

"Whereas, Complaint has been made on oath, before the undersigned Municipal Court Judge in and for the County of Garland by Virgil Rogers that certain property of ________ to wit: Illegal Whiskey, has been concealed and that the said complainant suspects that such property is concealed in the House occupied by Bessie Cook at 111 McCafferty in said County; and, Whereas, Being satisfied that there is reasonable ground for such suspicion, You Are Therefore Hereby Commanded, To Search the said place above mentioned, where such property is suspected to be concealed, and to bring such property, or any part thereof which may be found, before me, Municipal Court Judge. Hereof fail not, and make return of this writ.

"Given under my hand, this 23rd day of December, 1960.

"/s/ M. C. Lewis, Jr. "Municipal Court Judge"

It will be noted that the affidavit contains no statement of fact showing probable cause to believe that the person named in the affidavit was in possession of property subject to seizure. The only thing the affiant stated in the affidavit was that he suspected that illegal whiskey was concealed in the residence occupied by Bessie Cook.

The search warrant does not contain any finding of fact showing or tending to show probable cause for the issuance of the warrant. The only statement in the warrant is, "being satisfied that there is reasonable ground for such suspicion, You Are Therefore Hereby Commanded, To Search the said place above mentioned, where such property is suspected to be concealed and to bring such property, or any part thereof which may be found, before me, Municipal Court Judge. Hereof fail not, and make return of this writ."

It should also be noted that the return upon the warrant merely recites that it was "Served 12-24-60", but does not disclose what was found, or if illegal whiskey was found, the quantity thereof and the disposition of the seized property.

The warrant does not direct...