Gilliam v. United States, 189 F.2d 321

Gilliam v. United States

189 F.2d 321

6th Cir.

1951

Check Treatment

*1 The parties. Ter other contentions Supreme Court by the stated As jurisdic- for want of dismissal of the cause Broth Louis v. St. Ass’n of Railroad minal 1, U.S. tion correct. Trainmen, 318 of Railroad erhood 423, page 87 L. at page at Affirmed. Act, like the Railway Labor “The Ed. 571: U.S.C.A., Act Relations Labor [29 National govern undertake seq.], does not 151 et § hours, or work wages, regulation of mental provide it seeks Instead ing conditions. may be agreement by which means respect national them. The reached v. UNITED STATES. GILLIAM pri is not Acts expressed those interest No. as such. working conditions marily in the these concerned itself is far the Act So Appeals Court United States employees be as bad as may conditions Circuit Sixtli they can good as or made as tolerate will 1, 1951. June does fix and bargain The Act does not for. ap generally anyone fix not authorize working conditions. plicable standards fostered is to

The federal interest does disagreement about conditions

see that in interfering with point reach

terstate commerce.” here that allegation

There is no par agreement between the bargaining appellants.

ties discriminated most, allegation of a breach is an

At there Any right of agreement. bargaining alleged

action, exists, if based on one bargaining agreement, and

breach of Railway Labor under the does not arise McAllister, Judge, Circuit dissented. Act, only consequent con from the parties. fed The relations of the tractual law charged federal

eral are not courts parties per duty policing in the

with the agree bargaining formance collective Railway pursuant to the into

ments entered Hayes Pac. R. See v. Union

Labor Act.

Co., 184 F.2d 337. not, by Railway Congress did fed- grant jurisdiction to the Act,

Labor relief for breaches of courts to afford agree- bargaining

performance collective quasi-judicial Appropriate tribu-

ments. purpose. for that established

nals have been Co., Delaware, L. R. & W. Slocum 94 L.Ed. 795. It is agreements bargaining collective when into, when the unlawfully entered

are unlawful

agreements themselves courts act. effect, that federal

terms being jurisdiction federal question of necessary to consider

decisive, it is *2 paid. been had not

laws of the Jury case was trial waived and the was mo- the trial a tried the court. Prior to suppress tion to vacate evi- seizure and By stipulation be- dence overruled. parties agreed that tween the it was and same heard and introduced evidence interposed objections by the ac- the same sup- hearing cused on the of the motion to press be treated as re- should reinterposed the trial. introduced and appellant guilty all The court under found indictment, him un- counts of the sentenced counts, first der the second sen- and concurrently, placed him tences to run probation on the third count. under following The case arises out facts, disputed: which are investigators August for On Knoxville, Tennessee, Unit at Alcohol Tax deputy from a sheriff information received by a informer been told reliable appellant, bootlegger, had left Tennessee, County, his home in Loudon Play region adjoin- Ball go to the Monroe, moonshining ing county dis- trict, pick up whiskey. a load given the license num- federal officers were description appellant’s ber automo- On the same afternoon went to bile. neighborhood indicated and after some given saw an automobile of the de- time Play Road, scription the Ball driv- turn into appellant. The federal officers had en any a warrant for nor neither warrant. followed the auto- distance, stopped by for some mobile appellant’s Bomar side Officer Goodwin, Tenn., City, Lenoir M. Gilbert said, Gilliam, “Pull got out and over we Atkins, Knoxville, Tenn., on F. Hobart Appellant stopped, and Federal Officers.” appellant. brief, for whiskey “How much Bomar said: Knoxville, Ault, Meek, M. T. Otto James whereupon appellant got?” you “reached brief, appellee. Tenn., on legs got between little down SIMONS, ALLEN and McAL- Before pint jar, a half square about size said: ” Judges. LISTER, Circuit it is.’ The bottle ‘Here contained illicit Appellant whiskey. handed it out of the ALLEN, Judge. Circuit said it all he window had and that by the road.” containing three he “had found Bomar then indictment counts In of the car and charged searched rear found with violation of appellant § whiskey. I.R.C., half-gallon jars After 26 U.S.C.A. 2803(a) and §§ § discovery quantity by transporting possessing, search and 2803(a), whiskey, which spirits upon stamps, none of carried tax concealing distilled appellant he officers told was under imposed by the internal revenue the the taxes appel stopped talked corroborated The second officer rest. question whether the combina par- lant. The essential in all testimony first re with the tion of what the officers saw ticulars. they had received liable information he contended Appellant contends, as *3 probable justify the search. cause committed Court, the court District that refusing to sustain error in reversible appellant’s car was stopping The of evidence, and that suppress the motion to apprehend ap not an arrest. No intent upon testimony competent no there was made pellant move was shown was He guilty. finding base which to a The custody at that time. take him into argues whiskey was discovered that the open it not the car door when officers did by exploratory an search result of appellant stopped, was nor was state which, hearsay under information reason of person. At the under nor touch his Amendment, could not author- Fourth search, which was commencement of the warrant. ize the issuance of a search stopped, after the car been reasonable felony grounds believing that existed for a ignores the facts This contention being committed, subsequent and the was practical con case, “the factual of the arrest was valid. everyday rea life on which siderations prudent men, legal tech sonable Hearsay evidence is not to be elim States, nicians, Brinegar act.” v. United basis, together cir inated as other 1302, 1310, 160, 175, 93 L. 69 S.Ct. U.S. 338 probable cumstances, justifying for cause Appellant’s car searched 1879. was Ed. Li 2 Tong, States v. Fat search. United stopped, it but after a con as was as soon 650; States, Cir., 152 Carroll v. F.2d United produced appellant in which 543; versation 280, 132, 45 69 L.Ed. 267 U.S. S.Ct. whiskey, unstamped said that bottle States, 441, 435, 268 U.S. v. United Dumbra by had, that he had found it all he was 1032; 546, Husty 45 69 Unit L.Ed. v. bootleg The fact that the road. States, supra. presents case ed Here the bootleg ger found within notorious was positive what was evidence of seen and ging in the exact car which had been area place by officers at the heard possession of described search, in addition to what were told whiskey concerning unstamped deputy United v. sheriff. explanation, questionable con highly gave a Heitner, Cir., 105, 149 2 F.2d de certiorari pur reasonable cause within the stitutes nied, 727, 66 S.Ct. L.Ed. 326 U.S. 90 Brinegar supra. States, v. United view of 432; States, Wisniewski v. United seen, appel illegal possession was 825; Pickup One Ford Ton F.2d % story by the unconvincing was heard lant’s States, Cir., Truck United Automobile Amend “The Fourth officers themselves. States, 140 F.2d prohibit search, without does not ment supra. automobile, liquor ille warrant, of an Judgment affirmed. transported possessed, if the gally search cause; and arrest for upon McALLISTER, Judge Circuit (dissent- pre possession transportation need ing). States, v. United Carroll cede search.” appeals Paul Gilliam from a con- 69 L.Ed. 45 S.Ct. U.S. James States, 694, 700, charge on the of possessing viction Husty spirits transporting distilled 240, 241, violation of 75 L.Ed. 629. Whether 2803(a) the Internal without a war Revenue automobile Section search of He that he was Code. contends depends whether arrested valid rant cause, is, his automobile searched federal of- is made without arising ficers contraven- reasonably out cir upon a belief Fourth Amendment to tion Fed- known to the officer cumstances Constitution. Error claimed unstamped liquor. is fail- contains vehicle suppress district court to presented ure of the the evi- is not whether question dence obtained the arrest and search. before the automobile existed 32á regarding violators. Gilliam, County, liable information law resident Loudon They did not know who the man was who

Tennessee, driving his automobile deputy state, furnished information to County, after- had Monroe of that on the appellant planning to sheriff August 12, when a car in noon transport liquor. illicit The federal officers pursuing agents which two federal before him, had never of Gilliam pulled up along- seen heard him and overtook highway. overtook on the ap- side. One of the called out to observed no violation of the federal pellant: Gilliam, “Pull we Fed- over stop, stopped law before commanded Gilliam immediately eral Officers.” Gilliam received and aside from the information his car one the officers drove sheriff, deputy from had no reason to government front of Gil- car around in *4 offense, committing any believe that he was away get car he could not liam’s so that any or up to ever had committed offense. from them. Both officers then went description him from identified the of appellant’s Agent the Bomar car and its license been car number had up open ap- walked the window where to by deputy to them the furnished sheriff. pellant sitting and said: “How much Solely given, the information you Appellant whiskey got?” have then stopped him, escape, way blocked his of in front of him on the floor reached down car, him. The searched his and arrested pint picked up jar, small one-half deputy did sheriff was not with them and window, declaring, which he handed out the only participate in The is- not the arrest. offi- got.” “That is all I have One of the probable they'had cause to sue is whether keys, opened cers then car the took his arrest, meaning the search within the of twenty-four found half trunk of his deputy the told Constitution. What sheriff unstamped whiskey, jars gallon of and ar- reputation them Gilliam’s and the about leading up circumstances rested him. The fact that never make a sheriff could apprehension Gilliam are as fol- to the against jus-, would case Gilliam officers, lows : The federal on a casual two tified a search or arrest. The crux of the of Loudon visit the office of the sheriff to given the information case is whether County, by deputies one of the advised informer, deputy by an and such sheriff informer, he considered whom that some information, turn, passed by on him to reliable, gone had told him that Gilliam had probable constituted the federal County, Play, Monroe for a load to Ball cause the arrest and search. whiskey after- and would be back that deputy sheriff further stated noon. The Illegitimate prac- and unconstitutional bootlegger in known as a that Gilliam was ap- get footing by their first silent tices County; sheriff had that the raided Loudon proaches slight reg- deviations from repeatedly never been able him but had procedure. ular “This can modes he had him because obtain case by adhering to the rule that be obviated pour whiskey out. .always managed provisions security constitutional for the him, and even arrested But had never person property liberally con- should anyone deputy else sheriff nor neither A close literal construction strued. de- prove witness to that appeared as a ever efficacy, prives half and leads them of their bootlegger, known Gilliam gradual depreciation right, as if “raided,” or that he had been he had more in sound than in sub- it consisted One of the fed- whiskey out.” “poured the Boyd States, stance.” 116 U.S. quite trial that on the stated 635, 524, 535, 29 L.Ed. 746. carried on moonshining was lot of cause to arrest or search is meas- Probable Play. federal officers Ball section by knowledge of the arresting ured of- deputy name of the recall ficer, by probable could his intent. It means the information to retailed him at the time of the ar- sheriff they knew him and applied stated rest. But the standard to his con- them, but that, him, question had found is external to it. sciousness with worked thought re- is not whether he given facts to occasions, he had con- them other on appears informer on trial that cause, unless but whether stitute name, is the disclosure of the informer’s they did. Director Gen- thinks See court prison- Kastenbaum, necessary or show 263 U.S. desirable to eral of Railroads er’s Fat innocence. v. Li 25, 27, 44 68 L.Ed. Wisniew- United States S.Ct. Tong, States, Cir., Although F.2d 152 F.2d 650. 825. ski v. United fact without furnished an officer an arrest search It follows that justified ground an informer —if the considers him a a warrant can not be officer justified the reliable constitute fruits of informer — arrest, nevertheless, knowledge at cause for an conclusion that the officer’s it does grounds not follow gave him that an arrest is the time the arrest an of- Re, Di ficer with therefor. United cause where relies If the 92 L.Ed. information which has been furnished arresting disposal party information at the another who has received such wholly justify officer insufficient to the information from an informer unknown is. making an arrest of a warrant for officer issuance arrest. such in- warrant, case an invalid formation constituted such a infor- *5 all, illegal passed with no warrant would be an mation successively at on through a Worthington States, 6 arrest. v. United dozen different informers —each with a dif- motive, Cir., 166 F.2d 557. In the case of search ferent design harass, a different to warrant, with a which grudge, the affidavit on the different or purpose a different to injury warrant issued must facts from probable is set forth inflict constitute —would cause; probable probable the cause, which existence of cause can as used in the Amendment, be And the warrant must con- Fourth determined. would be meaningless. more a mere statement that some- When an than does not tain officer know has who one under oath he had furnished the had declared information that an offense is believe, good being committed, not, reason to and did himself, believe that he can know violating Ripper the was whether reasonably the law. it is trustworthy; accused States, probable v. 8 178 United F. 24. The cause would not exist the unless finding based, probable knowledge cause be facts within officer, should the opinion not on and of reasonably the belief of witness which he has trustworthy witnesses, information, sufficient, themselves, on facts set forth in the in to prob- affidavit from which the existence of warrant man of reasonable caution the fairly cause can be inferred. Other- belief that an been, able offense had be- was wise, ing, the conclusion would be that the committed. See United States Hor- v. witness, ton, judicial D.C.Mich., F.Supp. and not that the officer 86 92. the resting in whom alone the Constitution has vested officer does not even know who the power extraordinary person is, gives issue search who information, how warrants, legally is can this charged thus information by be considered him duty preventing with the grounds unreasonable constitute reasonable for his be- lief? searches and seizures. States v. In coming to the belief that is there D.C.Ohio, probable Borkowski, cause, is, 268 he F. 408. It judg- must form some course, ment; may well settled be that an arrest can judgment not form a as by officer on an evidence furnished to to whether there is unless informer, by since he knows who such evidence furnishes the information constitute reasonable which on he comes to this conclusion. In cases, proper cause. In such it is case, circumstances this com- the officer pel making officers to disclose the source of the in- the arrest up- could relied subject party to some limitations— on another who told him that he be- formation — way given otherwise there information since lieved the test the un-. they informer; whether have had and undisclosed reasonable and this Heitner, for the arrest. United v. 2 would not constitute cause. While might Cir., 149 F.2d But officer well the officer can not be suspicious, sus- compelled identity picion enough. not to disclose the however, is, argued govern- It government, The cases relied ment, found, the officers States, 132, 45 and the court 267 U.S. Carroll United they not arrest until did Gilliam S.Ct. L.Ed. Scher United its searched his car. The court stated in States, L.Ed. U.S. circumstances, opinion, reciting States, after 151, and forth, that, “Combining hereinbefore 1879, are set 1302, 93 as L.Ed. saw, they case, they what 'with what heard applicable. In Carroll not here were not in con- unreasonable engaged the fact that the accused was cluding engaged that defendant illegal transportation liquor not violating occasion in the law. ac- companion, his some surmise. Carroll and cordingly justified in stopping were defend- had come to meet before their time searching ant’s automobile But it.” arresting then known the two they anything suspicious, did see even understanding that officials, stopped Although before liquor. car. wanting Car- were customers observed, opinion, court had in its the fact promised them three deliver roll sell and appellant, suppress reason, motion to at For some cases case. $130 evidence, liquor in deliver, made no mention of the but when there was failure to container, pint half them, he showed they had this the officers arrested him, they stopped after the officers positive knowledge that personal these given justifying as a reason liquor. trafficking When men government, cause to arrest. The how- liquor, bargaining officers had been ever, voluntarily Gilliam declares that number of the car they saw and learned liquor showed this officerswhen *6 the in busi- bootleggers using were their these stopped him, possession, and its it- that coming Later, saw them ness. the officers self, constituted a violation of the federal great source from the direction of the law, justified and the search and arrest. boundary, supply, the international their on arresting officers themselves testified most active centers which was one of the they the that arrested Gilliam as result of country' introducing illegally for into this they searching what found after his car. spirituous the liquors distribution into for - arguments At no time until the the proceeding on the They were interior. any or justified grounds arrest on they plied city in which highway toward the except probable upon cause based the state- trade, they driving the same their and ment, several hours before the the they sell they when offered to car had used deputy sheriff. It was that never claimed holding to officers. whiskey they what officers saw before searched in the Car- there was justified car Appellant’s the search. way supports a conclu- such roll case in no regard in this he contention that was us. In the case before Scher sion in the unlawfully stopped when rested on the legality of the arrest and seizure case, the officers, highway by the and depend credibility of upon the some- did they secured such arrest should officers, what but thing told to suppressed. have been place and heard —what took they had seen case, presence. In in their stop car, calling In Gilliam to his previously arrested arresting had officer officers did so virtue of their official liq- illegally transporting for accused position, pull him and ordered to over and uor; loading him had truck with seen stop, warning him at the same time that where, however, sale liquor in Missouri they were federal officers. As soon he reputation legal; knew liquor his stopped, government driver car liquor; arrested him hauler of and as a out in front of Gilliam’s drove to block recognized driving heavily him prevent way to when his getting away his Oklahoma, where the They sale of then car in from them. loaded demanded how liquor illegal. see he had. Their similarity ordering We to much liquor was him to capacity stop, in their of federal officers, case. instant

327 compulsion trying escape being to down to exercised them shot prove that depriving proceed- his circum- him of freedom actions under such his enough ing along public voluntary. an stances are For highway, constituted ordering to men constitute an arrest. These were armed arrest if the conduct operates person officers stop blocking way Gilliam to his on the will of the threatened, fed- their car—at least we can assume that and results in fear reasonable personal engaged difficulty personal injury. work of A revenue in the or person applica- pursuing arresting moonshiners would await not have to force, resist, tion actively Tennessee were would have of actual or armed. What happened any com- make escape. if had Gilliam defied their effort to See Great At- They Smith, way? Ky. lantic Tea mands continued on & Pacific 281 Co. 759; be- grounds claimed to to 136 have reasonable S.W.2d National & In- Bond and, Whithorn, violating liquor Ky. 204, lieve 'he vestment laws Co. v. 263; therefore, guns, well have their S.W.2d could used Great Atlantic & Pacific Tea 5; necessary, stop Billups, Ky. 126, if or Co. v. to and search his car 69 S.W.2d Ashcraft, they Ky. 314, arrest him. reasonable Miller had 32 S.W. grounds case, they Thompson, for search in this had Moore v. 92 Mich. grounds They any reasonable for arrest. did N.W. 1000. Armed offi- right cers, him not claim the because right to arrest have no to command citizens to liquor pint jar, stop public he showed the on highway in a one-half force their ground they but on the cars way, off the road block their ex- cept stop suspect cause to and search. had no on cause to an of- right stop they committed, right being him unless had a to fense is possibly safety search him. The trial did find reasons, court or traffic not here relevant. right prevent him only way to search because The such abuses is to pint jar, he had the one-half exclude evidence so obtained those right frequently search was guilty. Judge based As Otis Anything cause. after Clark, D.C.Mo., found said United States v. stop F.Supp. 138, forced was found as result of 140: “It seems to us that the their by words, straint of another’s freedom of locomotion able cause to arrest or search. acts, If or the officers do not like, search, which would searched without a warrant of arrest or a have their re- *7 prob- Fourth Amendment it ** is held that a citizen ^[*] is whittled away to the Constitution may be nothingness arrested if apprehension induce a reasonable only search warrant if it is shown that some submitted, force would be used unless he reliable informer has said the citizen has constitutes an arrest. To constitute an committing felony, committed is with- rest, necessary person it touch the * * * any showing out whatever that the arrested, of one who is or to state to informer’ information was itself more than he is arrested. When these armed * ** guess-work speculation. mere pursued appellant, 'him officers commanded “We must stop, warning confess that we him that fed- now were draw back a little we pull when hear forced him to off road asserted a claim right stop country, constitutional open in a his car blocked criminal case. always, Almost instance, as in way by driving their car this directly his it is ad- car, vanced to shield an and surrounded individual guilty front his who is justice from the liq- he them of the law demanding that tell how much he has flouted. only satisfaction had, not seem me we can uor it does that this derive from maintaining the quite commands compliance rights with their constitutional person fully such voluntary. arises At time he was as from the knowledge subject obligation judicial that the power and their will their oath within re- quires seizing it holding certainty were and from the though as may protection what so they found out wanted. him until Constitution be preserved against citizen has to risk day that a believe when I do innocent case Since the arrest and search in this govern- it from men will need a defense as the evi- without tyranny.” mental my suppressed. In dence should have been stronger case The instant case is much opinion, judgment court of the district Clark, supra, here than United States ¿nd appellant or- should be reversed probable cause upon which the information discharged. dered in- came, not an from such asserted former, re- party who from another may informer, who an

ceived it from such through others. received countless dissent, opinion,

In notable filed States, supra, Mr. Jus- made the observation—con-

tice Jackson cerning -can be no difference there which Revenue Commissioner, REDWINE, v. CITI secure right views—that “the BANK. NAT. ZENS SOUTHERN & is one and seizures searches No. 13406. protect. Since the most difficult to invaders, chief there is themselves Appeals Court court. no enforcement outside of Fifth Circuit. May 30, 1951. flagrant “Only more occasional and courts, attention of the abuses come to the only those where

and then incriminating yields seizure sufficiently com-

the defendant is at least

promised raid to be indicted. the officers home,, office, stop and search an nothing incriminating, automobile but find personal liberty

this invasion of the practical too often

innocent re- finds be, dress. I There am convinced are, many

that there unlawful searches people

homes and automobiles of innocent up nothing incriminating,

which turn made,

which no arrest about courts nothing, which we never

do hear. about *8 protect

“Courts can the innocent indirectly through

such invasions evidence obtained excluding

the medium frequently guilty.”

against those are 160, 181, 69 S.Ct. 1313.]

[338 for these reasons that courts

It is that no arrests searches be

concerned except or without warrant

made with cause shall be purpose accordance with the construed Amendment, giving Fourth to the Amendment a

language of the broad and in favor of the indi-

liberal construction illegal to thwart invasion order

vidual safeguard to end constitutional this may, while Amendment, times, at protect always guilty, shall the in- shield

nocent.