Kroska v. United States , 51 F.2d 330 ( 1931 )

GARDNER, Circuit Judge.

The appellant, David M. Kroska, was convicted under an indictment which charged that on the 28th day of June, 1929, in and upon the main highway, from a point to the grand jurors unknown, to the farm known as the Peter Kroska farm, located about two and one-half miles north of Avon, a more particular description of which is to the grand jurors unknown, in the county of Stearns, in the state and district of Minnesota, the defendant did then and there willfully, unlawfully, and feloniously transport in an Oldsmobile eoupé automobile intoxicating liquor, to wit, -moonshine whisky, the exact amount thereof to the grand jurors being unknown. His demurrer to the indictment and his motion to suppress certain evidence claimed by him to have been obtained under an unlawful search of his automobile were overruled, and these rulings of the lower court are here urged as error. In support of the demurrer, it is urged that the indictment was not sufficiently definite and certain, and did not sufficiently apprise the defendant of the nature and cause of the accusation against him. No demand for a bill of particulars was made. The indictment set forth the facts constituting the essential elements of the offense, and if defendant felt any uncertainty as to what was intended thereby, or feared that he might be taken by surprise by the production of evidence for which he was unprepared, he should have applied for a bill of particulars. The indictment was good as against the demurrer interposed. Myers v. United States (C. C. A.) 15 F.(2d) 977; McMillan v. United States (C. C. A.) 27 F.(2d) 94; Swafford v. United States (C. C. A.) 25 F.(2d) 581; Rinker v. United States (C. C. A.) 151 F. 755; Cochran v. United States (C. C. A.) 41 F.(2d) 193.

Defendant’s automobile was searched by two federal prohibition agents without a search warrant, certain intoxicating liquors found therein seized, and defendant was arrested without warrant in his home, the officer making the arrest having entered without invitation. A motion to suppress the use of any and all evidence obtained by virtue of the search and seizure by the federal prohibition agents of a certain Oldsmobile coupe, his person and his premises, was urged on the ground that the arrest and the search and seizure were violative of the Fourth Amendment to the Constitution of the United States, and, therefore, illegal. This motion, though filed and called to the court’s attention before the trial began, was not then passed upon, but was considered at the close of the ease, all testimony obtained by virtue of the search and seizure being received subject to the motion.

It appeared from the testimony of the prohibition agents who made the search and seizure that, while they were driving a Ford truck along a public highway in the vieinity of the Kroska farm, they observed a dark blue coupé automobile turn into the Kroska farm. The witness Rhoades testified:

“We proceeded on into the Kroska farmyard. I-saw this coupe in the yard as I drove in. It was by the side door, on the west side of the house, about three or three and a half feet, possibly four feet, from the house. The west side of the house would be the right hand side when you face the house from the highway. No one was in the coupe as I approached it. The motor was not running. The doors of the coupe were closed. I made particular observation of this coupe, after I drove into the yard. I parked the truck about twenty feet at the rear of the coupe, got out of the truck and walked toward the rear door, op south of the Kroska home. I walked towards the coupe and looked at it as I approached it. I noticed the rear deck of the coupe was raised up about three inches. I could see a part of a keg, and I then stooped over, and there was a ten gallon keg there. I could see that opening, and the keg, while I approached the ear. After I stooped over and observed that it was a ten gallon keg, I called Agent Peterson and told him to watch the ear, and I immediately went into the rear door of the farm home.”

The witness then testified that he entered the grade basement door of the house and passed through several rooms of the house, going upstairs, where he found the defendant and placed him under arrest. Continuing, the witness testified:

“When I returned downstairs the car was not in the same condition as when I saw it before I went in. Agent Peterson had the rear deck open, and was examining the keg. I made an examination of these kegs and found that they contained white moonshine whiskey.”

On being recalled, the witness testified, among other things, as follows:

“Q. Mr. Rhoades, going back to the time that you drove into the yard, as you approached this Oldsmobile coupe, about which you have testified, did you detect any odor about the yard there? A. Well, I stooped over about four feet from the car, and I detected a strong odor of moonshine whiskey, coming from the rear compartment of the coupe.”

On cross-examination, the witness further testified:

“The first time that I saw this ear — this coupe car in question here, was when I was driving on this road, and saw it turn — saw it in the Kroska yard about three or four city blocks away from me. After I saw the ear I proceeded into the Kroska farmyard. The car was moving along. I saw it from the rear. I kept right on going. * * * The coupe ear when I first saw it was about two hundred and eighty-seven feet from the house. It then turned and went around a bend, and I lost sight of it, but we kept right on going. I had noticed that car there not very long, about ten seconds. The ear was moving 'quite fast. Then we got into the yard. In the yard I saw a Ford truck parked near the garage, an Oldsmobile eoupe parked at the side entrance of the house, and a Ford touring car parked between the house and the garage, slightly to the side of the road going into the yard. * * * After I drove into the yard, I got out of the truck, started towards the rear door of the Kroska home. I stopped my truck from the Kroska home about four or five feet, right out almost in front of it — that is, to the side. I walked around the right hand side — the right hand side of the house — and as I approached this ear I noticed a keg, the rear deck partly open, and I stooped over, and at that time I received an odor of moonshine whiskey, and I called on Mr. Peterson, who guarded the car, and I went into the Kroska home.”

The testimony of the other prohibition agent was substantially the same as that of Rhoades. Neither of the officers saw defendant until Rhoades arrested him in the house. The record is absolutely barren of any evidence indicating why the prohibition agents went to defendant’s farm. There is nothing to indicate that they had any reason to suspect that defendant had on his premises any intoxicating liquor, so that the only evidence forming the basis of probable cause for the search which they made was such as was secured by them after they had entered upon the private premises of defendant. The car was parked within three or four feet of his home, and the agents, when they observed anything to arouse their suspicion, with reference to the contents of the car, were in defendant’s yard, within a few feet of his home. So far as appears from this record, they were trespassers. Section 40, title 27, USCA, 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 wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law.”

In construing this statute, the Supreme Court of the United States, in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 287, 69 L. Ed. 543, 39 A. L. R. 790, said:

“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”

The government relies upon this statute as authorizing the search and seizure in this case, while defendant asserts that they are violative of the Fourth Amendment to the Constitution, and that the admission of the evidence so secured violated the rights guaranteed him by the Fifth Amendment to the Constitution. In the Carroll Case, it was decided that federal prohibition officers had the right to search an automobile on the public highway without warrant, when the officers had probable cause, to believe such car was offending against the National Prohibition Act. Chief Justice Taft, in delivering the opinion, said, however, that:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.”

If the search and seizure were violative of the Fourth Amendment to the Constitution, then the evidence secured thereby should have been suppressed, even though it was obtained -from an automobile. An unjustified search and seizure violates the Fourth Amendment, whatever the character of the property seized, whether it was in the home, in an office, or in an automobile, and whether taken by force, by stealth, or by fraud. The Fourth Amendment protects the citizen, whether innocent or guilty, against every unjustifiable intrusion by the government upon his privacy, and it has been said that these amendments confer, as against the government, “the right to be let alone.” ' The Fourth Amendment, however, does not prohibit the search without warrant of an automobile for liquor illegally transported, if the search is upon probable cause, and it has been held that to show probable cause it is not necessary that the officer should have had before him legal evidence of the suspected illegal act, but it is enough if facts have come to his attention of such a character as to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched. Dumbra v. United States, 268 U. S. 435, 45 S. Ct. 546, 69 L. Ed. 1032. The question, therefore, resolves itself into the inquiry: Did these officers, before they entered defendant’s private premises, possess such information as to lead a reasonably discreet and prudent man to believe that liquor was illegally possessed in his automobile? Weeks v. United States, 232 U. S. 383, 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, 41 S. Ct. 261, 65 L. Ed. 647; Silverthorne Lbr. Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A. L. R. 1426; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 158, 75 L. Ed. 374; Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629; Day v. United States (C. C. A.) 37 F.(2d) 80, 81.

The prohibition officers had neither a search warrant nor a warrant for the arrest of defendant. It is quite generally held that where a defendant is lawfully "placed under arrest, then, as an incident to such arrest, he may be searched, as may also the place of his arrest. Here, however, with no previous knowledge of the facts or circumstances warranting even a suspicion that defendant was guilty of violating the National Prohibition Act, or that his automobile had been illegally transporting liquor, the officers entered his private premises. One of them, uninvited, entered his home, and, finding him upstairs, arrested him. The premises entered constituted the curtilage of defendant’s home [Temperani v. United States (C. C. A.) 299 F. 365; United States v. Di Corvo (D. C.) 37 F.(2d) 124; Turknett v. State, 36 Okl. Cr. 401, 254 P. 985; Russell v. State, 37 Okl. Cr. 71, 256 P. 758; Wolf v. State, 110 Tex. Cr. R. 124, 9 S.W.(2d) 350; Childers v. Commonwealth, 198 Ky. 848, 250 S. W. 106], and not an open field, as that term is used in Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898. It cannot well be claimed that this was a lawful arrest; in fact, it was flagrantly lawless so far as appears from the record, and the only facts or circumstances known by the officers which might lead a reasonably discreet and prudent man to believe that liquor was illegally possessed in the automobile were such as were obtained by them by reason of their lawless invasion of the premises constituting the curtilage of-defendant’s home. In other words, they were wrongfully upon the premises of defendant and were wrongfully searching his possessions at the very time they looked into the rear deck of the Oldsmobile coupé and obtained the information upon which the government seeks to justify the search and seizure. This court, in Day v. United States, supra, in an opinion by Judge Kenyon, said:

“Probable or reasonable cause is a belief fairly arising out of facts and circumstances known to the officer that a party is engaged in the, commission of a crime.”

The Supreme Court, in Byars v. United States, supra, said:

“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.”

In Go-Bart Importing Co. v. United States, supra, in an opinion by Mr. Justice Butler, it is said:

“The first clause of 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.’ It is general and forbids every search that is unreasonable; it protects all, those suspected or known to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made and- the papers taken.” •

Facts and circumstances known to the officers before entering defendant’s premises, sufficient to lead them, as reasonably discreet and prudent men, to believe that liquor was in his possession in his automobile, may have existed, but, if so, they are not reflected in this record.

But it is argued that the error, if any, in overruling defendant’s motion to suppress, was waived by him and rendered nonprejudicial by reason of the fact that he himself took the witness stand and admitted that he owned the automobile which had been searched and the intoxicating liquor found therein; and that this was the only evidence produced against the defendant whieh was secured by virtue of the unlawful search and seizure. It has already been observed that defendant timely filed his motion to suppress, and brought the matter to the attention of the court, and it was because of the procedure adopted by the court that the motion was not heard before the trial of the action; but as in Agnello v. United States, supra, the facts disclosing that the seareh and seizure violated the Fourth Amendment were not in controversy, but appeared from the testimony of the witnesses called to give the evidence. Defendant was not responsible for the rule of practice adopted by the court; and it cannot be allowed to prevail over his constitutional right. Gouled v. United States, supra.

While the defendant testified in his own behalf that he was the owner of the automobile, and that he was likewise the owner of the intoxicating liquor, having that day acquired it' on the premises, he denied having transported the liquor, denied having placed it in the automobile, and denied that the- cover of the rear deck of the automobile was open, but testified that it was closed and latched, ’and denied that the automobile had been used since the night before, when it was parked by him where it was then standing. The testimony of the prohibition agents has already been referred to. It included testimony to the effect that they had placed their hands upon the radiator of the ear, and that the motor was hot. Substantially all of the testimony of the government, including the testimony as to the temperature of the motor of the ear, was secured by virtue of the seareh and seizure, and defendant’s testimony was induced by the introduction of this illegal testimony, and as said by the Circuit Court of Appeals of the Fifth Circuit, in Cofei* v. United States, 37 F.(2d) 677, 679:

'“His testifying after the introduction of the shells in evidence by the government may have been induced by the introduction of the illegal evidence, and so he cannot be said to have voluntarily testified, or to have waived his objection to the illegal evidence thereby.” [9] It must be borne in mind that the charge here was illegal transportation of intoxicating liquor, and there was one vital bit of evidence secured by reason of the unlawful seareh and seizure and introduced against the defendant which he did not admit. That was the evidence, above adverted to, to the effect that, at the time of the search, the motor in the car was still hot. This was a physical fact which directly, and, if believed by the jury, conclusively disproved the testimony of the defendant to the effect that the car had not been used since the night before the seareh. The introduction of that evidence was prejudicial, and it was not waived by any testimony of the defendant.

It follows that it was prejudicial error to deny defendant’s motion to suppress the evidence secured by this unlawful search and seizure, and the judgment is reversed and the cause remanded, with directions to grant defendant a new trial.