Dibello v. United States, 19 F.2d 749

Dibello v. United States

19 F.2d 749

8th Cir.

1927

Check Treatment

KENYON, Circuit Judge.

Plaintiff in error was convicted on both counts of an information; the first count charging violation of the National Prohibition Act (Comp. St. § ÍOISS^, et seq.) by possessing for beverage purposes certain intoxicating liquor on or about the 19th day of June, 1925; the second charging the maintenance of a common nuisance on or about the 1st day of January, 1925, in a building and place at 1222 McGee street, Kansas City, Mo.

Many errors аre assigned, as is usual in these cases, raising various questions, viz.: Failure of the court to sustain a demurrer to the evidence made at the сlose of the testimony; the admission of certain exhibits, consisting of whisky in bottles found at plaintiff in error’s place of business; the admission of evidеnce as to a raid made by government witnesses on plaintiff in error’s place July 14, 1925; the imposing of a fine on the first count of the informatiоn; and in overruling a motion to suppress evidence secured by a search of the place on June 18 or 19, 1925.

The greater part оf the evidence objected to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was obtained at the time of plaintiff in er-*750Tor’s arrest on June 18, 1925. The evidence introduced would warrаnt a finding- by the jury of the following facts: That plaintiff in error was the owner and proprietor of a so-called “soft drink parlor,” more in the nature of a saloon, located at 1222 McGee street, Kansas City, Mo.; that prohibition agents went to this place on the night of June 18, 1925, and there saw beer purchased by one of their informers; that they tested the beer with an ebulliometer, which whs a recognized method of testing the same, and found it to contain 1.45 per cent, of alcohol by volume; that they then arrested plaintiff in error, made a search of thе premises, finding .a barrel half full of beer in the ice box, which, upon test, was found to contain 1.45 per cent, of alcohol by volume; that they found on the bar a key which fitted a door leading to the basement; that they entered the basement, and found immediately over the door on the basement side a pint bottle half full of whisky. In the basement they found an alcohol gun (an instrument used for the purpose of placing alcohol in beer), a gallon can half full of alcohol, and two bottles full of whisky. Later in the month prohibition agents again raided the place. Another purchase of beer was made. Subsequently another raid was made, at which time a number of people were fоund on the premises drinking whisky in the presence of plaintiff in error.

The various bottles of whisky secured in the search on June 18, 1925, were offered in evidence and admitted over the objection of plaintiff in error. Plaintiff in error previous to the trial filed motion to suppress the evidеnce secured at that time, and now presents the question that his place of business was searched without any search warrant in violаtion of the Fourth Amendment to the Constitution, and that the evidence secured was used against him in the trial. This is the only question of importance in the ease.

Each particular case involving the question of an unreasonable search and seizure must he determined by its own ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍facts аnd circumstances. There is no general rule applicable to all cases. Lambert v. United States (C. C. A.) 282 F. 413; Garske v. United States (C. C. A.) 1 F.(2d) 620, 625; Peru v. United States (C. C. A.) 4 F.(2d) 881.

The chronology of events here is as follows :

First. A purchase of beer in plaintiff in error’s place of business in view of the witness, C. J.' Highley, a federal prohibition agent.

Second. Test of the beer by a recognized test which showed it had 1.45 per cent, of alcohol by volume.

Third. Arrest of plaintiff in error.

Fourth. Search of the premises and the finding of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the whisky in bottles, and other paraphernalia.

Plaintiff in error contends that the search was made before the arrest, but the record shows that plaintiff in error was arrested bеfore the search was made and that the search was incidental to the arrest. The arrest was for a crime committed in the prеsence of the prohibition agents. Their authority to make the arrest is not questioned. The law as to the situation presented is well settlеd. In Agnello et al. v. United States, 269 U. S. 20, 30, 46 S. Ct. 4, 5 (70 L. Ed. 145) the court laid down the rule as follows: “The right without a search warrant contemporaneously to searсh persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the ■ means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.” 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; Carroll et al. v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. This court has frequently considered the question. See Peru v. United States (C. C. A.) 4 F.(2d) 881; Garske v. United States (C. C. A.) 1 F.(2d) 620; Brock v. United States (C. C. A.) 12 F.(2d) 370.

The record sustains the contention of the government that prohibition officers arrested plaintiff in error for a misdemeanоr committed in their presence, and as incident- to sueh arrest searched plaintiff in error’s place of business and secured the vаrious exhibits introduced, consisting of whisky in bottles and an instrument used to put alcohol into beer.

Plaintiff in error raises the further point that some of the exhibits introduced in evidence consisting of whisky in bottles were secured in a search of the basement, which was not in the sole possessiоn of plaintiff in error, but to which other parties had access. In Agnello v. United States, supra, á search was made of Agnello’s house, several blocks distant from where the arrest took place. It was held that sueh search could ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not be sustained as an incident of the arrеst. No such situation is presented here. It appears that plaintiff in error owned the entire building, occupying the first floor with some kind of a drinking and eating resort known as the “Blue Ribbon Barbecue.” He used the basement and the stairway leading thereto. A key to the door leading to the basement was found on plaintiff in error’s bar. Immediately inside of this door, *751and 'placed on a board over the door, was found a one-half pint of whisky, which had practically the same proportion of alcohol in it as the whisky found in the basement. While the fact that others may have had access to the basement might affect the weight of this testimony, the question of defendant’s connection with the basemеnt 'was a question for the jury. Waddell v. United States (C. C. A.) 283 F. 410. Plaintiff in error asked no instruction on this subject. We see no reason why, after the arrest of plaintiff in error for a misdemeanor committed in the presence of the officers, the search of the premises incidental theretо should not include the basement, under the situation shown by this record. We are satisfied the motion to suppress the evidence was properly overruled, and that the evidence objected to was obtained by a reasonable search of the premises at the time of the arrest and as incidental thereto.

We have examined and considered all the other errors assigned. We see no need for a discussion thereof. We find none of merit. The evidence was sufficient to warrant submission of the ease to the jury on both counts of the information, and the judgment is affirmed.