Clyde Albert Walker v. United States

the bile with instructions to circle through farm Birmingham, Fulford, Ala., Clifford R. possible the for woods and look appellant. for distilling activities. other officers Atty., Johnson, Jr., M. U. S. Frank Appellant’s on to the drove house. Weaver, Atty., Bir- Fred mingham, Asst. U. S. S. seventy eighty yards from his Ala., appellee. for separated house, pri- therefrom his CAMERON, Cir- Before RIVES and driveway, vate and was surrounded DAWKINS, Judges, cuit District allowing gap fence with entrance into Judge. barnyard driveway private the from the in front of the house. Judge. CAMERON, Circuit arriving driveway Upon at the circular Upon federal and evidence obtained appellant’s house, the front of fed- acting war- a search state without agent and local officer entered one eral Clyde Walker, rant, appellant, through barnyard gap which was and convicted of distilla- indicted They ap- open had seen at that time. whiskey. possession of untaxed tion working pellant on his tractor at appeals conviction, From this Walker and some distance rear house ground the District Court away from the house and barn. overruling sup- motion to his erred said, Appellant “Hi”. waved to them objections admitting press approached officers to within As the pre- appeal This evidence so obtained. thirty barn, they no- feet of the about question running Walker’s barn garden sents the whether a black hose ticed protection of afforded the barn, odor became aware Amendment Constitution and cooking mash, a metallic and heard destroyed protection un- this running whether thump foot- and the sound of they claim of officers that der the percep- steps On inside barn. making probable cause the search tion, barn where officers entered the a warrant. complete operation, they a still found capper except which had been agent for the Revenue An Internal off, mash, several barrels in knocked office Bureau was informed at his they whiskey gallons premises a man ments came onto an- twelve “ Nunnally nouncing, your ar- ‘We still whom have come for named inside that shed’ ”. The entered could not see officers The officers rested. opened door enclosure which the shed was situated had the barn until shed, portion and of barn then entered the where that and had entered still, whiskey. distilling jugs equipment found of was mash and in which the completion search, We held that the of the resi- found. At the of the was illegal dence, appellant was and that the evidence arrested. thereby sup- obtained should have been supplied Upon this evidence pressed. On the basis of these authori- federal, officers, various state and local appellant’s ties we hold that barn awas suppress introduced over his motion to part curtilage. of the objection, appellant and was convict- plain But it is that the search cannot ed. that the He contends evidence justified any be The Fourth basis. by agents illegally of fed- obtained right Amendment insures “the of the government eral in violation people persons, to be secure in their and should that it against houses, papers, and un- effects have been excluded. The Government reasonable searches and seizures part contends was not a * * -:< n »_ pro- The further Amendment curtilage that, and if even issue, vides no warrants shall “but was, agents right had make to upon probable cause, supported by Oath ground search on the affirmation, particularly or scribing de- probable to cause make the search with- searched, to be and the out a warrant. persons things or to be seized”. The The barn here searched was a language plain of the Amendment is building constituting domestic in an meaning clear. tegral part group of that of structures States2, In Johnson v. United the Su- making up Every farm home. case preme quotes Court older case “ upon peculiar must be decided its own possible these words: ‘It would not be hold we under the facts facts1, emphasis to add to which with here, part this barn awas of the cur of our framers Constitution and this tilage. * * * Taylor States, 1931, In have declared the im- portance political liberty and to the garage the house searched was a metal country our welfare of the due ob- adjacent dwelling house; in Ro rights guaranteed servance under berson Cir., 1948, the Constitution [Fourth these two F.2d the search was of a smoke and Amendments. The Fifth] effect house; *** and in Walker v. United the decisions cited is Cir., 1942, the search they regarded rights] [such are to be consisting was of a shed of a chicken very as of the essence of constitutional garage, * fifty house and which stood to liberty; these sixty dwelling house; feet from the should receive liberal con- amendments each instance it considered that the prevent struction, stealthy so as to en- curtilage was involved. “gradual deprecia- croachment rights by them, by secured tion” In the Walker case the federal practice imperceptible of courts or dry had found sacks mash near well-intentioned, mistakenly over- premises days several before the search executive officers’ zealous ”. and had smelled the odor of mash com- days from the shed. After several the same In case Mr. Justice waiting watching judicially develop- without Jackson outlines created Camp, Cir., 1941, 1. Turner 123 F. 2d 840. L.Ed. 436. prob- outlined, they had above “exceptional under which evidence circumstances” intoxicating may made able cause believe search without being liquors inside manufactured an unrea- as condemned contention refuted the barn. That limited search. These are sonable arrest, deci- a number recent search as an incident where were held sions searches of a movable vehicle and search though grounds officers had justified even rare circum- under fully good as those claimed here. prevent stances destruc- threatened opinion Johnson further furnishes tion or removal of contraband. the Government’s a sufficient answer exceptional cir None of these contention6; Supreme Court’s and the present cumstances are here. The Agnello pronouncement in United appellant precede of and not followed did 32, at S.Ct. result search the the and was based 6, 145, directly is also in 70 L.Ed. are therefore search. We point: controversy required explore the dwelling private “The search of a progress the in of between members a in un- without is itself warrant which search Court as to the reasonable and abhorrent to our legal No vehicle attend a arrest3. * * * certain laws. Save is of con involved and no' removal the arrest, as incident there is cases being possible, traband was ofiicers the no of sanction decisions guards present place at all and able to state, courts, federal exits.4 private search of house a * * * a Be- novel without warrant. takes the The Government lief, founded, position perfect however well that an had a its ofiicers sought in right article concealed a make a and search enter dwelling house, jus- no solely furnishes because it claims based through and, g. a room transom of 3. a e. Harris v. United See lottery room, being saw on. a carried 91 L.Ed. 331 U.S. 67 S.Ct. probable cause, Despite 1399; such evidence of Johnson v. United search, 436; in each cases of the above 333 U.S. S.Ct. Trupiano was declared unreasonable. v. United Mc 92 L.Ed. 68 S.Ct. pages 13-14, 6. 333 U.S. at S.Ct. at States, 1948, 335 U.S. Donald United page 369: United point of the Fourth Rabinowitz, 1950, 339 U.S. States v. grasped often is not zealous which of- 430, 94 L.Ed. 653. ficers, is not that denies law enforce- States, supra; Johnson v. United Cf. support of the usual inferences ment supra; Trupiano Mc v. United evi- reasonable men draw from which States, supra; and Donald v. requir- protection Its consists in dence. Jeffers, 1951, United States ing those inferences drawn a magistrate neutral and detached instead being judged engaged Taylor States, supra, the officer in of the often of- v. United In competitive enterprise smelling garage of fer- a after entered ficers the reting Any assumption whiskey coming out crime. it and odor of support magis- seeing In evidence sufficient to a therein. stacks of cases States, supra, disinterested determination to is- trate’s sue a search ofiicers Johnson justify will known nar- of- from a information received making a a in search without war- smelled the “unmis- ficers and also user cotics burning opium, reduce the Amendment to rant would a of odor takable” people’s nullity leave the homes room In and se- of- was traced searched. odor only police States, supra, gov- Trupiano discretion of cure * * * right priva- fermenting mash, When the ficers. cy smelled ernment reasonably yield right motor, whiskey must and saw a still heard rule, is, operation to be as a decided In McDonald v. a barn. by policeman officer, supra, judicial or Gov- heard the officers agent.” adding ernment enforcement machine used sound seizure, think, in- as

tification for search reasonable appellant, cidental to the arrest of and a warrant. And not, certainly if then most unlawful notwith- incidental searches are held standing co-defendant, unquestionably the arrest facts show- Nunnally. ing probable cause.” entering upon Before seizure here were premises, the officers no unreasonable violation barn, there was a still in his Fourth Amendment and the motion to hence had no intention of search- suppress the evidence should have been barn, but were headed direct sustained, and the evidence should have a search of the woods.1 When within been excluded. Because the court below barn, 30 to 60 feet Officers Boone ruling against ap committed error Ferguson smelled the distinctive pellant instances, judgment in both cooking (R. 25, 54), odor2 of mash saw is reversed cause remanded garden running the black hose beneath proceed for further and not inconsistent edge barn, heard noises “like ings. ground” a can or drum hit and “a Reversed. noise somebody sounded like run- ning” (R. 25). Ferguson Boone and Judge. RIVES, Circuit immediately turned ran to the barn (R. 54, 136), I dissent. but before could effect capture, a escaped. (R. pp. 42, one man Judge (dissenting). 103). RIVES, Promptly entering Circuit barn, placed appellant’s the officers co- respectfully This decision I dissent. defendant, Johney Nunnally under arrest effi- me to be a serious blow seems to 104). (R. They later found Fred Walk- required cient enforcement not law er, appellant’s hiding brother, in a corn search and the Fourth Amendment. The my experience years “A. In of 5 1. Mr. Boone testified: job cooking this mash. refer I to it as still “Q. regard to the Now with source has an odor. acrid your you information, did tell “Q. Boone, your Mr. in the course of you distillery find there would a out investigator you work as an ATU have barn? Mr. Walker’s cooking many smelled mash times? vague No, indefinite, it “A. sir, Yes, “A. I have. might something on the said there Clyde “Q. cooking mash, Does the odor of is place, way Walker that’s the distinctive, as distinct from the smell (R. 33) it.” remember fermenting or odor of masli? again questioning by court, he On Generally, “A. it is. testified: “Q. distinguished Is it distinctive as * you have “The Court: Did ordinary from the odor of moonshine whiskey any that the or the whiskey? you before still was in the barn went all Yes, “A. it is. out there? “Q. cooking Is the odor of mash dis- No, sir, informa- “The Witness: our only tinctive in the sense that it occurs tion was that there was a still distilling operations prog- when are in place, his house gress? woods around around there. general only way, “A. In a that is the parked you thing cooking Court: From where mash, smells like still way you area, cooking (R. were headed 39, 40) mash.” is still there, you headed, way out were he On the trial testified: “Q, cooking direct route to the pecu- woods? Does mash have a Yes, sir, your opinion? “The Witness: liar odor in direct short straight.” (R. 61) cut, right “A. It has a odor distinctive all mellow, It has a its own. more sour hearing testified on the bakery put 2. Boone a odor than yeast, perienced investigator would out with suppress: motion but it is odor distinct that an ex- “Q. court, recognize.” Describe that odor to the (R. 81) kind of what odor was it? 149), (R. 97, did Gouled crib the barn 305, 41 647. On the S.Ct. him. hand, said Mr. Justice Holmes other as Nunnally Johney Appellant and in Hester United counts, each jointly in four indicted S.Ct. : felony charging as commission “ * * * special protection follows: Fourth Amendment accorded un- One: Possession “Count people ‘persons, hous their registered still, 2810. 26 U.S.C.A. § es, papers effects,’ is not extend Carrying busi- “Count Two: open ed to the fields. The distinction bond, 26 of distiller without ness house between latter U.S.C.A. § 4 Bl. as old the common law. Making mash, 26 Three: “Count Comm. 226.” U.S.C.A. § See, also, Edwards v. United Possession Four: “Count whiskey, gallons unstamped (R. 1-2).” U.S.C.A. § opinion, In the same Justice Mr. brought court, appellant In district observed, further Holmes “It is obvious Nunnally out the fact trespass, that even if there had been a 150.) (R. 104, guilty. pleaded testimony the above obtained court, search or seizure.” 265 U.S. full and fair The district page at at 446. As said hearing, mo- defendant’s overruled the doing Janney by evidence, the Fourth in Unit- suppress in so Circuit v. tion to finding facts, ed 206 F.2d “The fact which find- some a of made trespassers ing fully that the officers were on the record.3 sustained the thought property be defendant’s protects “The Amendment The Fourth immaterial.” In Koth v. United right people in their of secure the 16 F.2d Ninth said: the Circuit effects, houses, papers, persons, may “The fact that the have officers against sei- searches and unreasonable trespassers does not evi- exclude the (emphasis supplied). settled It is zures” they saw, dence what heard only dwell- not “houses” includes that Rogato, smelled.”4 In United States v. ings places of business. but offices and the information which the officers ob- the author careful review of 3. “After a pointed to tained the fact a still was that opinion ities, the of the the court is being operated in the on the woods farm. McBride v. be overruled. motion should they stated on The officers were their States, Cir., Schulte 284 F. United way to one section of the area wooded Cir., 11 F.2d v. United barnyard in a line across direct the when Cir., Schnorenberg United they first detected odor of the mash.” 38; Carney v. United F.2d 72) (R. 71, Cir., 163 F.2d not result undertaken did “The search necessity including a 4. The mere fermenting mash. odor from the of alone trespass prohibition within the land crossing barn- the were the officers As pic Fourth Amendment of turesquely the strong they yard a odor of observed by Judge stated Yankwich in they approached cooking the as mash and Taylor Fine, D.C.S.D.Cal., 115 F. extending garden they hose saw Supp. 68, 71: barn- barn across the the beneath from yard possible they “If it were to submit officers time reached About the lot. Immigration they United States Serv- of the a disturbance heard barn door the every attempt- though harassment time ice to someone was within entrants, if could be sub- There was the barn. to flee jected damages, even for to suits nominal the barn that from within noise distinct the landowners of the Coachella district ob- or some other utensils like sounded jects against erecting reaching being upset. barriers the the Before Government, and, effect, in farm, States had no the officers telling Government, being operated of the the officers that a still whatever enter, no matter what ‘Do not federal indicates that The evidence the barn. tually business, does whether D.C.M.D.Pa., F.2d located curtilage protection not, special or within the than is ac- “Nor does said: city ex- corded a dweller in his office. Fourth Amendment A accorded driveways rule, open side more accurate statement of the I each to the tend think, building, open space in the was made or the Fourth Circuit building.” Janney in the recent case of of rear States, supra, 206 F.2d at 603: any Supreme nor Neither protec- Appeals “We of has ever held bear mind Federal Court open tion of the Amendment extends not the word “houses” includes only dwelling curtilage of a dwell- of a de- land even within the house Kentucky ing. fendant but also to the courts of structures state Mississippi, used him in his which have held that connection with curtilage protected, home or land within business.” “pos- their on the word based decisions disagree While I thus with the “curti- appearing sessions” in the Constitutions lage” employed by my brothers, test States,5 those but not contained am accord with their conclusion that Fourth Amendment. It will be observed appellant’s protec- barn was afforded the Court ease of Hester When, tion of the Fourth Amendment. States, supra, officers however, question it comes to a of de- prior only concealed to the 50 to gree, right privacy of “when the must dwelling. yards from the In Martin reasonably right yield search”,7 any attempt equate seems to me Judge speaking Lee for this Court man’s barn with his must grounds or said: “Enclosed unenclosed dignity latter, lower the and that open fields around their houses are not appropriately his home more meets the prohibition.” included description castle, cottage of his of his King’s into which even the men case, Under the facts this I doubt Rabinowitz, enter. In United States v. holding that, correctness “this 430, 339 U.S. 70 94 S.Ct. L.Ed. part curtilage,” barn was a of the but 653, recognized Court “curtilage” I am not convinced that though a even structure came within the right imply is test one. protection of the the char- protection open spaces lot, to the of the place properly acter to be position and such an extreme cannot determining considered whether soundly imply, be maintained. It would search was reasonable. In our own re- buildings also, curtilage outside the Drayton States, cent case of v. United protection are not within the of the 35, recognized 36, this Amendment, and, I while am that: holding,6 aware cases so I can see no “Although why requirements reason a farmer stricter should be afforded protection apply less reasonableness the barn where he ac- where protection C.J.S., 6. are See cases cited in laws violated.’ 79 Under the Searches Seizures, they Judge Alger fences, 14. § of barbed-wire As thus Fee could employ illegally Vlahos, country notes in aliens United States v. D.C. Or., F.Supp. 166, 169, law 19 aid violations.” there is a marked conflict buildings in the decisions as to Fugate Commonwealth, Ky. 410, 5. v. 294 curtilage. outside Of 1020, 1021; 171 S.W.2d Mullins v. Com- course, occupant if there is no of the Ky. monwealth, 656, 987; 220 295 S.W. premises, protect the barn would not Commonwealth, Ky. 848, Childers v. 198 ed, States, v. Tritico 5 4 106, 107; S.W. 250 Cotton v. Common- F.2d 664. Ky. wealth, 349, 1061, 254 S.W. 1062; State, 390, 10, v. Barnard Miss. Johnson v. United 7. U.S. 479; State, 14, 124 So. 622, Helton v. 136 Miss. State, 101 So. Falkner v. 253, Miss. 98 So. 691. to searched, time think there was com- brothers procure of- a search because pare v. Davis place “present able to 1256, ficers were (592), 66 S.Ct. guards case Correa, this at all exits.” To me Matthews ” * * * present leisurely picture.8 so does not Cir., 135 F.2d they so, cul- do could one of the Before language appears to have That prits escaped, corn hid in another directly Harris taken crib, co-defendant footnote 331 U.S. attempting escape. Nunnally Fur- 1098, 91 L.Ed. 1399. 67 S.Ct. guards ther, ?do what were my conclusion that From brothers' they helplessly to stand while Were one, re- an “unreasonable” operators If still fled? illicit vigorously spectfully dissent. they on which had sufficient information search is reasonable is a “What occupants bam to confine the by- any fixed determined not to be them as that structure or does The Constitution formula. fled, then seems me that ‘unreasonable’- are define what pur- authority to enter barn for that regrettably, and, our searches My say, however, pose. brothers ready discipline no litmus- we have pos- “no removal of the contraband was recurring questions paper The test. Even that seem to me sible.” does not of searches reasonableness so, whiskey pouring illicit in the facts find resolution must underground liquid mash down drain Go- of each case. circumstances perhaps experience a common suffered Importing Co. v. United Bart by law enforcement officers. 51 S.Ct. 282 U.S. long case, as a Rabinowitz as well inis Reasonableness 75 L.Ed 374. right recognizes cases, line of “The with- District instance the first contemporaneously out a search warrant to determine.” United States lawfully persons to search arrested while supra, Rabinowitz, 339 U.S. at committing and to crime page S.Ct. at where the arrest is made Trupiano Unit- That overruled case Agnello ed Trupi- extent My say, ap- brothers arrest of solely up- required a search warrant ano pellant precede followed and did not pro- practicability on the basis upon search and the result of was based curing it, but we held in Rent so, as I do not think search." that However, point out in a I will moment. practicability procuring a search war- assuming so, about be then what to be con- one of the factors rant still Johney Nunnally? He has the arrest deciding a search whether sidered validity of his questioned the My never even a warrant is reasonable. Somebody al- the back door. necessary out was because 8. No minute search ready gotten out. by done As testified the evidence was obvious. anybody else in the there “Q. Was Mr. Boone: Nunnally? besides you you in what did went “Q. When identify. I could There Not “A. find? going man there out another (cid:127)was In the barn? “A. door. íes. “Q. anybody you find Did else “Q. type gallon A tank still “A. barn? except operation, we did. the cover Later “A. had been top; “Q. Who? several bar- rolled off had been brother, mash, distillery, complete fellow’s Fred Walk- “A. This and a rels of a Johney Nunnally pian later identified as er. you put get trying him arrest?” under Did “Q. arrested as he was Iwho pleaded appellant Arrest, contrary, placed has The was under but to the then arrest.9 I guilty. lawful as in- do not think that we are If the search re- nicely quired co- to calculate whether cidental the arrest preceded hardly arrest, defendant, unlawful as search two it could if the practically appellant. acts were United States simultaneous and See Jeffers, 51, 52, probable the officers had cause for 72 S.Ct. believ- U.S. 59; per- one or more of the McDonaldv. United arrested felony. sons had 451, 454, committed 93 L.Ed. a See An- 69 S.Ct. notations, 1391; me, said Mr. A.L.R. It seems A.L.R. concurring Black, A.L.R. 784. in Wolf v. Justice Colorado, Certainly Johney arrest Nun- “* * * nally was lawful whether measured exclusionary rule that the federal is not federal or state standards. As said command of the Fourth Amendment a Chief Justice Taft in Carroll v. United judicially rule of evi- is a created 267 U.S. might negate.” Congress dence 69 L.Ed. 543: “The usual rule is gained by police may a rule that evidence that a officer arrest without wrong own shall one believed the officer Government’s reasonable guilty cause to have been Wallace Cf. United States v. & used. felony aof briefs do not Co., Tiernan cite us to the authorities as to whether If then the 93 L.Ed. 1042. evidence agents of the Alcohol Tax Unit have legally obtained, it is immaterial power to make arrests. United States legality is referable to whether Marshals, Agents of the Federal Bureau appellant’s arrest or with connection Investigation and certain other fed- of his co-defendant. arrest eral officers are authorized to if testified: Officer Boone grounds have reasonable to believe person long “Q. arrested it from has How committed committing felony. or is you you a first then until U.S.C.A. time entered 3050 to §§ put inclusive. Under Ala- Nun- went there and also, bama State law nally an officer ar- under arrest? any person rest without a warrant “when would “A. The time it take to he has reasonable cause to believe that opening into walk barn, person arrested has committed moment, go to hesitate a felony.” Alabama Code of Title say in there. not more private person 154. A § has author- than a minute or minute and ity to felony make arrests “where a has half. committed, though pres- long you “Q. stay And how did ence, by person arrested; or where a got there, you in the barn after felony committed, has been has he you before walked out of back per- reasonable cause to believe that the barn? arrested committed it son Id. right back out “A. I came to reg- 158. If Section federal statutes or specifically called Walker down the front and do ulations authorize there.” of the Alcohol Tax Unit to make by you search, Boone: As testified Mr. “A. If call it that was signaled to I bim come down within “A. two minutes or less. down, there, you “Q. and he came and I shook After went in there and found myself property, still, him introduced hands with and it was immediate- ly was, you you caught out, and him who I that he was after and told walked put him under arrest. and him under arrest? long you Yes, that “A. How was sir.” “Q. premises? searched 456 provides

arrests, was Alabama cated to them that an illicit still statute legality being operated barn, which one of them the standard United must be measured. ran for the front door the other for these arrests and Re, 581, 591, 68 capture Di States v. the rear door to head off 210; v. 92 Johnson S.Ct. committing felony. Their ac- those States, 333 note United U.S. object tions to showed that their was 436; v. Rent 68 S.Ct. participants make the arrests. States, Cir., F.2d United 5 209 for, crime so as has been understood By any standard, me to it seems Johney stated, escaped, one of them Nun- legality the arrest of nally escape (R. 104) but was tried Nunnally questioned, and there cannot be arrested, and Fred hid in the Walker slight ground ques is on which to corn crib. appellant’s legality tion the arrest. “gray number of There are a almost smelled, saw and When the officers things reasonably respectfully indi- submit heard horse” cases.10 which Cir., Kronenberg, States, 2d In Donahue v. 9 In United States v. United composed Cir., 56 F.2d 134 F.2d a Court was said: liquor Augustus Judges Hand, Learned N. “The manufacture of of Hand, felony. (Jones per a Act, Act of March 1929 and Frank said curiam: 45 27 §§ Stat. U.S.C.A. held, and it “We have never 92). had If the information which hold, the sense of smell absurd prior reached the officers to the all; all was not to be relied at we search, is, prior opening that, standing alone, ever said was have it is not alone, dwelling house, and of the door of the the enough. Here it did not stand they through knowledge gained evidence, for all taken to- hearing, was their senses of smell and justified gether, the conclusion when probable give cause sufficient to them escape, the officer went down the fire felony being to believe com presence had observed when presence, they in their en mitted put out; light was and that what Walk- enter the make the titled to apartment er from the carried arrest, United States v. Borkowski something incinerator was the detection (D.C.) 408; F. 268 McBride v. United was, of which he wished to avoid. 416; States, Cir., 284 F. Janus v. further, a reasonable conclusion from Cir., 436; States, United opium was the this this 504, and, an incident § 28 U.S.C.A. strong.” so smelled thereof, premises, search the United Cir., McBride v. United Borkowski, supra, D.C., 268 States v. F. court, relied on F. district 408; Cir., Vachina v. United directly point. Judge King, There McBride 283 F. speaking composed Judges for a court also, supra, Cir., See, 284 F. 416. Bryan Walker, King, said: F.2d Garske “Treating falling this stable as within there That and cases collated. description places covered cause believe that a had reasonable question this being pres felony in their committed officer, warrant, is: Can an case enter clear, therefore had a ence is right upon premises whereon he is in- premises pur for the to enter the his senses a crime is formed making arrest, and, pose in as an having entered, finding committed, and, property thereto, to seize found cident progress, without warrant ar- crime control, which it was unlawful testify rest the offenders and as what him to have. Carroll v. United * * * entry discloses? entry premises 39 A.L.R. Marron on these and into 192, 198, 199, evidence, the stable was not search for 231; King but, upon ascertaining whisky 72 L.Ed. 9 States, Cir., process thereon, 1 F.2d Mat manufacture in of United ar- States, engaged Cir., 9 11 F.2d United those in the tus v. rest an offense then in commission of progress. entry If an 503.” Kelley States, Cir., 8 made in also United can be cases See Solomon, acquire F.2d United States v. the officers 61 where present D.C.Mass., evidencing 193. the commission 33 F.2d of a 457 The page 12, 368. page my 68 S.Ct. at at brothers relied the cases suspect was that, contrary. “No Court commented Let the or tend to not hold do flight”, fleeing likely 333 U.S. to take - nor in the briefly of them discuss each me Har page In 15, page 68 S.Ct. at at opinion. the in it is cited in which order 145, S. States, 331 U.S. United 840, ris v. Cir., Camp, F.2d Turner v. 1399, was 1098, 91 L.Ed. the Ct. every merely point is cited arrest. to an held reasonable incident pe- upon own decided must be case U.S. Trupiano In v. United agree. must facts, all with which culiar 1233, 706, 1229, L.Ed. 699, 68 S.Ct. 1, Taylor United In agents Tax Un 1663, Alcohol of the garage adja- 466, 467, where a 52 S.Ct. every construction detail of the it knew searched, city was cent residence long illegal distillery operation of the out, pointed repeatedly “No one Court case, That raid made.” before the was place, no was within the there was commented, over has been as has been again: otherwise”, and to think reason part. in McDonald v. ruled In may rely aon “Prohibition officers 69 S.Ct. 335 U.S. physical fact distinctive odor as a officers heard crime; possible but its indicative adding machine, looked over a transom strip presence alone does not transpiring in and saw what was building of a of constitutional owner room, all without discovered. The * ** against guarantees unrea- rooming defendant and house had his record does search. This sonable kept under two surveillance necessary for us to dis- not make specifically months. The Court com respect cuss the rule searches mented, “Here, inas Johnson in connection with an arrest. No Trupiano States v. United garage; offender was fleeing seeking the defendant was immedi- action of the had no escape.” In United States v. Rabino The ate connection with arrest. witz, 339 U.S. 70 S.Ct. purpose was to secure evidence judgment Appeals Court Tay- support some future arrest.” reversed, Supreme was and the States, supra, lor v. United 286 U.S. suppress held “The motion to page 6, at 52 S.Ct. at properly evidence was denied the Dis case, Cir., The Roberson 165 F.2d Jeffers, trict Court.” In United States v. only question relates 342 U.S. 72 S.Ct. whether the barn within was “house” the Government admitted that the search protection of the Fourth room the hotel unlawful as to the question we are sub- Jeffries, Misses but contended that it did agreement. case, stantial In the Walker respondent’s privacy. invade the information on thought The which the search was was obtained made quibbling distinction”, was “a 342 U.S. days Likewise, theretofore. several Conversely, here, 72 S.Ct. 95. if the 333 U.S. Johnson lawful as Nunnal four a five to ly, I submit that it was lawful as to the decision, reported to the informer had Agnello appellant. In persons “that unknown the officers the search was smoking opium Europe Hotel. arrest, not incidental to an informer was taken back to the hotel blocks a man’s several distant manager, to interview but he re- arrest, saying turned at could smell once he had been offense committed and while burning opium hallway.” custody he was elsewhere. The fore- knowledge knowledge illegally acquired.” crime, then the use of ac- F. at pages 418, quired entry is not the use of going are all of the authorities America, The UNITED STATES of majority relies. Not one which the Plaintiff-Appellee, submit, present them, sustains ruling. Joseph IACULLO, Defendant-Appellant, against appellant The evidence No. 11496. so no wit- unanswerable that he offered nesses in own is a serious behalf. Appeals United States Court of guilty undeniably matter that a man Seventh Circuit. go unwhipped of felonious crimes should June justice. that we It is far more serious precedent should under which establish a vigilant law enforce- conscientious and seriously impeded in

ment officers will be performance important their Rightly understood, duties. precautions requires extra Amendment searching part officers before houses, behind it is not a bulwark may shelter. Cf. lawless seek

which the States, 333 U.S. Johnson v. in United As said 68 S.Ct. 367. Jeffers, States v. “* does Amendment weight unduly oppressive an merely in- officers but law enforcement orderly procedure

terposes under impartiality aegis judicial pur- necessary beneficient to attain the

poses it otherwise intended.” To construe a force itself the Amendment

is to make good, and to for rather than evil ultimately plant in it a cancer I,

bring there- destruction. about

fore, respectfully dissent. Rehearing Petition for

On CAMERON, Cir- RIVES Before DAWKINS, Judges, District

cuit Judge.

PER CURIAM. considering petition for

Upon re- judge

hearing who voted to neither judgment of the court below reverse desiring advocating petition rehearing granted; ordered it is petition for rehear- decreed and it is

Denied. Judge.

RIVES, Circuit

I dissent.

Case Details

Case Name: Clyde Albert Walker v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 3, 1955

Citation: 225 F.2d 447

Docket Number: 15433

Court Abbreviation: 5th Cir.