Cohn v. United States , 16 F.2d 652 ( 1926 )

BARBER, Acting Associate Justice.

The appellant, defendant below, was tried, convicted, and sentenced in. the Supreme Court of the District of Columbia, upon an indictment charging him with a second offense of the unlawful possession of intoxicating liq.uor, whisky, under the National Prohibition Act (Comp. St. §■ 10138^4 et seq.). He was convicted of his first offense August 30,1922. The offense here involved was committed October 29, 1923.

The errors complained of are: (1) The admission of evidence alleged to have been unlawfully seized. (2) Refusal to reject evidence. But defendant’s counsel in his brief well states the issue as follows:

“Inasmuch as the admission of the evidence complained of depended solely upon the legality of the arrest, search, and seizure, this is the only question involved on this appeal. If the search was legal, and the liquor properly seized, it was properly admitted in evidence, and the verdict of the jury was also proper. However, if the search and seizure were unlawful, * * * then appellant’s motion to suppress the evidence should have been sustained. * * * ”

The substance of the testimony in narrative form is as follows:

A policeman on direct examination testified that he saw defendant driving an automobile past a certain street intersection in the city in the daytime, without giving the proper traffic signal, and noticed two boxes on the seat of the car partly covered. He knew the driver, the defendant, followed him some distance, then stopped him, and asked him;what he had, to which defendant replied, “Three boxes of com.” At that time the officer had no warrant for the arrest of defendant, nor a search warrant for the car. He.then took defendant to the station house “and charged him with illegal possession, transporting, and violation of the traffic regulations.” When he stopped defendant, the officer observed a ■ brown leather storm coat over the top of the boxes which were on the rear seat. The coat did not completely cover them. On top of the coat was a straw wrapper, and inside of that was a bottle containing some kind of liquor marked “White Horse Scotch.” He identified a jar shown him by the assistant district attorney as one that was taken out of one of the boxes in' defendant’s car. At the station house 18 gallons of liquor were found in the ear and seized. That it was intoxicating is conceded.

On cross-examination the officer said that he did not smell liquor when the ear passed him, did not see or taste any, and did not know what was in the defendant’s car, but that he had “a good, strong suspicion.”

On redirect examination he said that he knew the defendant, and knew that he had been “mixed up with liquor transactions previous to this,” with which, as an officer, he had had nothing to do. He knew that whisky, gin, and other things like that were transported in the kind of cartons that were in defendant’s car, had had some experience as an officer in other liquor law violations, and his suspicions were aroused by seeing the cartons covered.

On reeross-examination the officer was again asked what the defendant said when asked what he had, and again he testified that the answer was: “I have got three boxes of corn.” The witness was then asked if he remembered testifying in the ease about a year ago, and if then he did not say that the defendant, answering the question as to what he had, said, “ ‘Oh, you know what I have,’ and started laughing.” Witness replied that he might have so testified; that his recollection was vague about the testimony which he gave at the former trial. He also said that he could see enough of the packages in defendant’s car to discern that they were boxes similar to com whisky boxes.

The defendant testified in substance that he was requested by a friend to deliver and transport these cartons, but was ignorant of their contents, and denied that he told the officer that he had “three boxes of com on.” It is not claimed that, if defendant did: use the language, he meant com' whisky, and that the officer so understood.

Some of the seized liquor was then admitted in evidence against defendant’s objection and exception, and the case was submitted to the jury, with instructions to which no objection was made.

The pertinent part of section 26 of title 2 of the National Prohibition Act (41 Stat. 305 [Comp. St. § 10138%mm]), under which the defendant was prosecuted, provides that:

“When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any * * * automobile * * * it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law * * * and shall arrest any person in charge thereof.”

In Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 3 A. L. R. 790, the right of search and seizure thereunder without warrant, and what constitutes probable cause for so doing, were exhaustively considered. At page 149 (45 S. Ct. 283) it was said:

“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”

At page 161 (45 S. Ct. 288), speaking of probable cause and quoting from other decisions, it was said that:

■ “ ‘If the facts and circumstances before, the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.’ * * 8 ‘The substance of all the definitions is a reasonable ground for belief in guilt.’ ”

In the Carroll Case, the facts relating to the seizure and arrest without warrant were, in brief, as follows:

The defendants were justifiably believed by the arresting officers to be engaged in plying the unlawful trade of selling liquor. When the seizure and arrest were made, they were on the public highway, presumably coming from the direction of the source of supply for their stock to the place where they plied their trade, and in the same automobile used by them on a previous occasion some two months before, when they had agreed to sell and deliver to the same officers some whisky, but did not do it, alleging as the reason that they could not obtain it. And, further, the evidence, as set out in the dissenting opinion, shows that, after the officers stopped the defendants’ automobile, they asked defendants to get out of the ear, which they did. The search was then made, the liquor found and seized, and the defendants thereupon arrested. It was held these facts constituted probable cause, and that the liquor found in the ear and seized was admissible in evidence.

We think the case at bar presents a stronger probable cause than did the Carroll Case. Here the officer’s suspicions were justifiably aroused by his knowledge of the defendant, by what he saw in the ear, and in addition to this, and before the car was searched and defendant arrested, the defendant admitted to the officer, if the latter’s testimony was true, and evidently the jury so found, that he had three cases of whisky in the car. We are unable to see why this admission, made before arrest or seizure, under the circumstances, did not justify both the arrest and seizure, and render admissible in evidence the liquor seized.

It follows that the judgment below ought to be and is affirmed.