Wida v. United States

• Decision Date: 15 September 1931
• Docket Number: No. 9141.,9141.
• Parties: WIDA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

52 F.2d 424 (1931)

WIDA et al. v. UNITED STATES.

No. 9141.

Circuit Court of Appeals, Eighth Circuit.

September 15, 1931.

Frederick J. Miller, of Little Falls, Minn., for appellants.

Lewis L. Drill, U. S. Atty., and O. A. Blanchard, Asst. U. S. Atty., both of St. Paul, Minn.

Before STONE and GARDNER, Circuit Judges, and YOUMANS, District Judge.

STONE, Circuit Judge.

This is an appeal from convictions on an indictment containing two counts, the first for felonious possession and control of an unregistered still used and intended for use in the manufacture of whisky, and the second for the felonious making of mash fit for distilling of spirits.

The sole matter presented by this appeal is the action of the court in denying applications to suppress evidence which the government concedes is necessary to the conviction. The facts are that two government agents had information and complaints that liquor was being distilled at the farmhouse of appellant Wida and went there to investigate. As they approached the house, they smelled the odor of mash which they recognized as that made for the purpose of distilling spirits. They went to the door where Wida appeared. Whereupon, the agents asked him his name and then told him that they were federal officers and said: "You are under arrest for having fermenting mash in your possession." One of them asked him where his still was, and Wida motioned toward the basement and said: "It is in the basement." Wida stated that the still was his and that he had been operating it for the past month, cooking out an average of twenty gallons of moonshine whisky a day. He said he was not selling it himself but that there was another man who sold it, coming about twice a week when he brought sugar and other materials for the distillery and took away the moonshine whisky. One of the agents entered the basement and found a still in operation and barrels containing fifteen hundred gallons of fermenting mash, some moonshine whisky, empty kegs, and other paraphernalia. The agents took samples of the mash and whisky and destroyed the remainder. Appellant Taylor was discovered trying to escape when he was arrested. He stated that he was working for Wida and his duties were to assist with the chores and the distillery.

The contention is that this distillery was in the residence of appellants and, as there was no search warrant or contention that any sale of liquor had been made at the house, the seizure was unlawful under section 39, title 27, USCA, and the related section 53, title 18, USCA. The first of these sections is a part of the National Prohibition Act and the pertinent part thereof is as follows: "No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house." Section 53 makes it a misdemeanor for any federal officer to "search any private dwelling as defined in Title 27 (National Prohibition Act), and occupied as such dwelling, without a warrant directing the search." The answering contention of the government is that the search was made as incident to an arrest for a crime committed in the presence of the officers. Appellants challenge the lawfulness of this arrest and, although not very distinctly urged, it may be said inferentially they challenge the validity of the search even though the arrest be lawful.

The validity of this arrest is beyond successful challenge. Before going to this place, the officers had received information and complaints that Wida had a still in operation at his home and they went about one hundred and twenty miles to investigate the accuracy of this information. They had a right to go to the house for this purpose, and when they arrived there, and before entering the house, they received unmistakable evidence, through the strong odor of the fermenting mash, that their information was correct. Immediately upon ascertaining the identity of the appellant Wida, they made the arrest. "Where an officer is apprised by any of his senses that a crime is being committed, it is being committed in his presence, so as to justify an arrest without warrant." McBride v. U. S., 284 F. 416, 419 (C. C. A. 5). To the same effect: Garske v. U. S., 1 F.(2d) 620, 623, this court; Lee Kwong Nom v. U. S., 20 F.(2d) 470, 472 (C. C. A. 2). Where a crime, even a misdemeanor, is committed in the presence of an officer he may make an arrest and, as incident thereto, make a search of the immediate premises for matters connected with the crime for which the arrest is made. Marron v. U. S., 275 U. S. 192, 198, 48 S. Ct. 74, 72 L. Ed. 231; Agnello v. U. S., 269 U. S. 20, 30, 32, 33, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Carroll v. U. S., 267 U. S. 132, 158, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Weeks v. U. S., 232 U. S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Stark v. U. S., 44 F.(2d) 946 (C. C. A. 8); Billingsley v. U. S., 16 F.(2d) 754, 756 (C. C. A. 8); Garske v. U. S., 1 F.(2d) 620, 622 (C.C.A. 8); Green v. U. S., 289 F. 236, 238 (C. C. A. 8); U. S. v. Gowen, 40 F.(2d) 593 (C. C. A. 2); Lee Kwong Nom v. U. S., 20 F.(2d) 470, 472 (C. C. A. 2); U. S. v. Kirschenblatt, 16 F.(2d) 202, 203 (C. C....