Susрecting that intoxicating liquor was being manufactured by the appellant Alvau, three prohibition agents, without a search warrant, went to his residence, in the country some distance from Tacoma, about 3 o’clock at night. Four hundred or five hundred yаrds from the house they detected the odor of fermenting mash, which grew stronger as they approached, and when they came near the house they also smelled hot or burning kerosene. In the darkness they investigated the outside premises — barn and yard — but found nothing of a suspicious character other than what they eall a sump or surface cesspool, apparently a shallow excavation filled with gravel, which at the time was warm, and from which arose the odor of fermenting оr fermented mash. The house was undoubtedly the appellant’s residence, occupied at the very time by himself and his family, consisting of his wife and two children, and in it also was the appellant Rossi, the purpose of whose presence, whethеr criminal or legitimate, became one of the issues of fact at the trial. No lights were visible, but upon investigation the agents learned that there were three outside doors, one in front, one' at the back, and one leading to the basement, all being locked.
Getting no response to their demands for admission, accompanied by the announcement that they were prohibition agents, one of them broke open the basement door and, entering, unlocked the other doоrs to let in his associates. Appellant was taken into custody and a prolonged search was made of the interior of the house, including the basement, without discovering any incriminating evidence. They then communicated with their superior in Taсoma, who, in response to their suggestion, came out later in the morning, and after some further search they discovered in one of the walls of the basement a heavy door or block about two feet in diameter, finished and fitted in, in such manner as closely to resemble the wall itself. Opening this, they were able to get through into two underground rooms, having no outside entrance, where they found appellant Rossi, a complete still which manifestly had been recently in operation, vats сontaining a large quantity of liquid sugar mash and about 40 gallons of whisky.
Acting upon the information thus obtained, a grand jury later returned an indictment charging the two appellants, in three counts, with violations of sections 3266, 3281, and 3282 of the Revised Statutes of the United States (26 USCA §§ 291, 306, 307), which define offenses, of the grade of felonies, relating particularly to the manufacture of distilled spirits and the operation of distilleries. Seasonably appellant Alvau made an application, supported by affidavits, for thе suppression of the evidence thus obtained, upon the ground that the search was in violation of his constitutional rights. This the court declined to rule upon preliminarily, but put defendants to trial, with the understanding that he would pass upon the question after hе had heard all the evidence. Objections by both defendants to the reception of the evidence and motions to strike it out were overruled, and ultimately the court held it admissible. There was a verdict of guilty, with judgment accordingly, and from this judgment both dеfendants appeal.
The principal question presented is of the legality of the search, for, if illegal, and for that reason the evidence so obtained be stricken, admittedly there would remain no substantial support for the verdict. It will
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at once be noted that the case bears a close resemblance to Cola v. United States (C. C. A.)
This section provides that it shall be lawful for revenue officers, as well by night as by day, “to enter into any distillery or building or place used for the business of distilling, or used in connection therеwith for storage or other purposes, and to examine, gauge, measure, and take an account of every still or other vessel or utensil of any kind,” and indeed to measure and take account of all material and appliances to be found therein. And it is further provided that, “whenever any officer, having demanded admittance into a distillery or distillery premises, and having declared his name! and office, is not admitted,” it shall be lawful for him, as well by night as by day, to make a forcible entry.
Read literally, the section might be taken as a blanket warrant to the officers at any time to search premises of every kind; but, so read, it would clearly fall under the ban of the Fourth Amendment to the Constitution. In its application to facts having any сlose-resemblance to those here presented, it does not seem to have had frequent consideration by the courts. There has been called to our attention no decision, other than those of the learned judge below, whеre the broad grant of authority contended for has been recognized. Cases where bank inspectors, meat inspectors, oleomargarine inspectors, and other agents exercising similar functions, rightfully enter such places of business in the regular performance of their duties, and without objection on the part of the proprietors, and while so employed search for and obtain evidence of wrongdoing, present no real analogy. So also it may be said that those who professedly or openly engage in the distillery business, by compliance with the statutes, undoubtedly give their consent that the revenue agents may enter the premises devoted to such purposes, at any time, to make inspections аnd otherwise to discharge the duties imposed upon them by law. Indeed, in such case the agents are expressly granted a measure of control over the premises. As was said in United States v. Three Tons of Coal,
In construing a similar, but less drastic, provision of the statutes (section 3177, R. S. U. S. [26 USCA § 92]), Judge Peck, in United States v. Hilsinger (D. C.)
And in United States v. Swan (D. C.)
While we are not to be understood as
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necessarily holding that the application of the statute is restricted to a registered still, and does not extend to a place avowedly or notoriously devoted to the distillery business, we arе of the opinion that it does not authorize the forcible entry of a building, admittedly a private residence, where the circumstances within the knowledge of the officers tending to engender the belief that a still is being unlawfully operated therein аre barely sufficient, in the most favorable view, to authorize a magistrate, upon being appropriately advised thereof, to issue a search warrant. If the construction placed upon the statute by the government is correct, it is difficult to conceive of a ease where a search warrant would be at all necessary. And yet section 3462 of the Revised Statutes (26 USCA § 1195) expressly provides that United States judges and United States commissioners “may, within their respective jurisdictions, issue a search warrant, authorizing any internal revenue officer to search any premises within” their jurisdiction, “if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of the said premises.” And it is generally held that an affidavit merely following the language of this section is insufficient to justify the issuance of a search warrant, but that the showing must be of probative facts as required by the Constitution. See Ripper v. United States (C. C. A.)
There was here no emergency; it is not a case of a rapidly moving automobile or other instrumentality employed in violation of the law, or of an outcry from a closed building of murder, or robbery, where immediate action is often necessary. If the information obtained by the government through the sense of smell was sufficient to authorize the issuance of a search warrant, there was no reason why the officers should not have made application therefor, and thus have proceeded in an orderly manner. To require such procedure is not to condone the flagrantly criminal conduct of which the defendants were guilty. Forcibly and in the nighttime to enter an occupied residence, even though it is thought to be used in part for unlawful purposes, is likely to be attended with disorder, and to result in violence and tragic consequences. We feel constrained to hold that the search was unreasonable and in violation of constitutional rights, and that therefore the evidence was inadmissible.
Incidentally, it is said for the government that no error was committed, because in the application for suppression there was no express averment of ownership by the appellants of the still and liquor. But, as already stated, the court did not pass upon the sufficiency of the application, and advised the parties that he would rule upon the facts as they were ultimately disclosed by the evidence, and undоubtedly the evidence established possession in defendants and ownership by Alvau. Besides, ownership of the building was directly alleged, and in essence the invasion of appellants’ constitutional rights consisted of the forcible entry and the unwarranted search thereof. Hence the ease does not fall within the rule of such cases as Shields v. United States (App. D. C.)
It is also suggested that Rossi cannot claim benefit, for the reason that he did not join in the petition for suppression, did not own the building, аnd claimed no' interest in the still. But when the testimony was all in, as required by the court, he did join in the motion to strike out and withdraw from the jury the evidence secured through the search, and for the time being, as the guest or employee of its owner, he was domiciled in the residence.
Reversed.