Appellant was found guilty on each of eight counts of an indictment based on alleged violations of sections 3266, 3281, and 3282, Revised Statutes of the United States (26 USCA §§ 291, 306, 307).
The first three counts charge the unlawful making of mash and the fermenting of mash fit for production of spirits, and the unlawful using of a still for the purpose of distilling at 1609% North Twenty-Fourth street, Omaha, Neb. The remaining counts charge similar violations of law at 1611% North Twenty-Fourth street. The facts are not in dispute. Some federal prohibition agents in Omaha, having some knowledge and much suspicion that stills were being operated in the second story of a building at North Twenty-Fourth street, which second story was divided into four apartments numbered 1607%, 1609%, 1611%, and 1613%, secreted themselves about 9:30 o’clock one night at a place near the rear of the building where they could watch the rear entrance; there being a rear stairway leading up to the second floor. Others of the force were secreted near the gate to the Zusman feed and coal yard, a place not far from the suspected building, where they knew sugar was sold. Observing a Ford car entering the Zusman yard and go *81 ing out again shortly, they followed it as it proceeded down the road a short distance to the rear of the building under suspicion of harboring operating stills. It went into the yard. The prohibition agents saw appellant' loading a sack of sugar onto his back from the Ford truck. They found some empty bottles or jugs in the truck but no liquors. It is claimed by the government, and seems to be conceded by appellant, that the officers then arrested him, although there is little competent evidence to show just when an arrest was made, if at all. He was then taken up ■ the stairs and into one of the apartments, where there was a still in operation, where he was searched and certain papers consisting of receipts for payment of rents of the apartments where the stills were being operated, for telephone, yeast, gas, sugar, etc., were taken from his person against his protest. These were subsequently admitted in evidence against him. The officers had no search warrant or warrant for appellant’s arrest. The officers searched the different apartments and found in two of them stills, 56 barrels of mash, and some gallon jugs of moonshine whisky. In the other two apartments nothing was found. Appellant was sentenced to six months’ imprisonment in jail on each of the counts, the same to run concurrently, and was fined $1,000.
There is one grave constitutional question presented, and the case stands or falls upon its determination, i. e., could the incriminating papers taken from appellant’s person lawfully be used against him on the trial? They show that he was connected with the operation of this distillery, and if the prohibition officers had been able to restrain themselves until appellant had gone up the stairs with the sugar to where the stills were being operated, and arrested him while he was engaged in such operation, and then taken the papers from him, the courts would probably not have been troubled with this ease. The theory of the government is that as the prohibition officers, approaching the building in following appellant’s car, smelled a strong odor of mash coming from the building and one of them heard the roar of the gas burner under a still, they had probable cause to believe that a still was being unlawfully operated in the second story of the building and that appellant being in the yard loading a sack of sugar on his back was connected therewith, and therefore they had the right to arrest him for a felony being committed in their presence, and the search of his person was merely incidental to a lawful arrest.
It is, of course, well settled that a police officer may arrest without a warrant one believed by the officer upon reasonable cause to have been guilty of a felony or to be engaged in the commission of a felony. Carroll v. United States,
In Gerk v. United States,
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. Weeks v. United States,
This case therefore simmers down to a single question, viz., was there a lawful arrest of appellant?
This court has many times held that where an officer of the law has direct personal knowledge from one or more of his five senses of sight, hearing, smell, touch, or taste that the suspected person is committing a crime in his presence, he may lawfully arrest him. See Garske v. United States (C. C. A.)
Granting that the prohibition officers were justified" in believing from the smell of fermenting mash emanating from this building, and other circumstances, that a felony was being committed in the building, does it follow that they had sufficient probable cause to assume that a man in the yard with 400-pound sacks of sugar in a truck at 9:30 at
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night, one of which he was attempting to load on his back, and with a few empty jugs in the truck, was participating in the felony? Mere suspicion is not sufficient, por does it satisfy constitutional requirements that the evidence secured by the search of the person shows the party to be in fact guilty.- Garske v. United States (C. C. A.)
In Marron v. United States,
There is not one word of evidence here, outside of that objected to, to show appellant had any charge of the premises or was connected with them in any capacity.
In McBride v. United States (C. C. A.)
In Colasurda v. United States (C. C. A.)
In Sehnorenberg v. United States (C. C. A.)
In Benton v. United States (C. C. A.)
In the Gerk Case, supra, there was evidence that prohibition officers detected the *83 odor of fermenting mash, emanating from a shack and heard the roar of gasoline pressure in the building. They saw defendant enter the building, and it was held that was sufficient to show probable cause for believing there was a violation of Revised Statutes 3281 and 3282, and the search and arrest were upheld.
Judge Booth has discussed in a very late case, Raniele v. United States (C. C. A.)
The officers’ theory of the arrest is shown by the answer of prohibition agent, Anderson, to the suggestion of appellant that they had nothing on him, that they did not catch him with the outfit, as follows: “No, but we caught you pretty close to it and we will take a chance on locking you up.” The nearest the officers get him to the crime is that he was “pretty close to it” because they thought he was going to carry the sack of sugar he was loading onto his back upstairs and there use it in connection with the still. Thoughts are not a substitute for evidence. It is carrying the doctrine of detecting ¿rime by the process of smelling fermented mash entirely too far to conclude that every person within the range of the officer’s olfactory nerves who may have something on his person or in an automobile under his control that might possibly be used in the unlawful making of intoxicating liquor is participating in a crime in the officer’s presence. The evidence secured by a search of appellant’s person after the arrest and claimed to be incidental thereto was secured in violation of the Fourth Amendment to the Constitution and used in violation of the Fifth Amendment. It is perfectly apparent from the record that without this evidence appellant could not have been convicted. The court practically so states in its instructions to the jury. As in our judgment the arrest was not lawful, there not being sufficient probable cause to warrant belief that appellant at the time was engaged in the commission of a crime, we reach the conclusion that the judgment of conviction must be set aside, the case reversed and remanded to the District Court for further proceedings in harmony with this opinion. It is so ordered.
Reversed and remanded. .