*1
Before
GARDNER,
STONE and
Circuit
Judges, and WOODROUGH,
Judge.
District
GARDNER,
Judge.
appellant,
Kroska,
David M.
charged
convicted
an
under
indictment which
day
June,
that on the 28th
in and
highway,
a point
main
jurors
grand
unknown, to the farm known as
farm,
Kroska
the Peter
located about two
Avon,
one-half miles north
more
description
particular
of which is to the
grand jurors unknown,
county
Stearns, in
the state
of Minne
district
sota,
the defendant did then
there will
feloniously
fully, unlawfully,
transport
eoupé
in Oldsmobile
automobile intoxicat
ing liquor, wit,
whisky,
-moonshine
ex
grand jurors being
act amount thereof to the
demurrer to the indictment
unknown. His
suppress certain
his motion to
by him to
been obtained under
claimed
an unlawful search of
automobile
overruled,
rulings of the
and these
lower
*2
I
coupe, after
particular
of this
observation
support
In
error.
urged as
are here
court
the truck
yard.
parked
the
I
drove into
indictment
urged that the
demurrer, it is
the
coupe,
twenty
rear
the
about
certain, and
feet
the
and
sufficiently definite
was not
the
toward
got out of the
walked
truck and
apprise
defendant
sufficiently
the
did not
I
op
home.
door,
rear
south
Kroska
the
accusation
and cause of the
nature
coupe and looked at
walked towards
par-
a
for
bill
against him. No demand
approached
I
rear deck
I
it.
noticed the
forth
set
The indictment
was made.
ticulars
inches.
coupe
up
was raised
about three
elements
constituting
essential
facts
then
keg, and I
part
I could
a
of a
any un-
see
felt
offense,
if defendant
of the
and
keg
gallon
stooped over,
thereby,
there was
ten
or
and
certainty
was intended
as to what
keg,
opening, and the
by surprise
I
there.
could see
might
taken
feared that
stooped
I
approached
I
After
was while
ear.
which he
production of evidence
gallon
ten
over and
was a
bill
observed that it
applied
shоuld
unprepared, he
keg, I
told
good
Agent
called
and
Peterson
indictment
particulars. The
Myers
immediately
into
ear,
I
went
watch
and
interposed.
demurrer
977; Mc-
the rear
farm home.”
door
(C. A.)
C.
United States
(C. A.)C.
Millan v.
States
United
The
that he entered
witness then testified
25A.)
(C.
Swafford United States
grade
door
basement
the house
(C. C.
F.(2d) 581; Rinker v.
States
United
through
house,
passed
several rooms
States
Cochran v. United
A.)
going upstairs, where
found
defend-
(C.
41A.)C.
placed
ant and
him under
Continu-
arrest.
was searched
Defendant’s automobile
ing, the witness testified:
prohibition agents
without
two federal
I
“When returned downstairs
car was
intoxicating liquors
warrаnt,
certain
I
not in
same
as when
saw it
condition
ar-
seized,
defendant was
found therein
Agent
I
before
in.
Peterson had
went
home,
offi-
warrant in
rested without
open,
examining
keg.
rear deck
and was
having
making
entered
cer
the arrest
kegs
I made an
examination of these
suppress the
A
use
motion
invitation.
found
contained
moonshine
white
of the
any
virtue
and all evidence obtained
whiskey.”
prohibition
federal
search and seizure
being recalled,
testified,
On
the witness
coupe,
of a certain Oldsmobile
among
things,
as follows:
person
premises,
urged
and his
on the
“Q.
Rhoades, going
Mr.
ground
back
to the
the аrrest and the search and
you
yard,
you ap-
drove into the
seizure
violative
Fourth Amend-
were
of the
proached this Oldsmobile
States,
coupe,
the Constitution
about which
ment to
of United
you
testified,
you
and, therefore, illegal.
though
any
did
odor
motion,
detect
yard
IWell,
stooped
about the
there? A.
court’s
filed
called to the
attention before
began,
over about four feet from the
and I de-
passed upon,
trial
was not then
strong
whiskey,
tected a
of moonshine
ease,
but was
at the close of the
odor
considered
coming
compartment
testimony
from the rear
obtained
virtue of the search
subject
coupe.”
being received
mo-
and seizure
tion.
cross-examination,
On
further
witness
appeared from the
It
testified:
prohibition
who made the search and
“The first time
I saw
this ear —this
that,
driving a
Ford
seizure
while
question
coupe
here,
car
was when I was
public highway
vieinity
along a
truck
driving
road,
and saw
on
it turn —saw it
farm, they
Kroska
observed
dark
yard
city
in the Kroska
about
three
four
coupé automobile turn into the
blue
Kroska
away from me.
I
blocks
After I saw the ear
witness Rhoades
The
testified:
farm.
farmyard.
proceeded into the Kroska
along.
moving
on
I
proceeded
“We
into
Kroska farm- car
saw it from the
* * *
yard.
coupe
yard
kept right
going.
I
I-saw
as drove rear.
door,
coupe
side
when I first saw it
in.
It
on the west side
ear
eighty-seven
house,
and half
about three
three
hundred
feet
from the
feet,
four
house.
It
feet, possibly
the house. The
then turned and
around a
went
sight
right bend,
it,
kept
house would
I lost
right
west side
be the
we
you
going.
I had noticed
hand
face the house from the on
that car
side
very
highway.
coupe
long,
one was in
about ten seconds.
ap-
No
The ear was
moving
proached
running.
'quite
got
The motor was
fast. Then we
it.
into the
coupe
yard
yard.
parked
doors
closed. made
saw a Ford truck
near
garage,
eoupe parked
government
relies
this statute
at the side
house,
authorizing
entrance of
a Ford as
the search and seizure in this
touring
case,
between the house
while
defendant asserts that
garage, slightly
going
the side
violative of
the road
the Fourth Amendment to
*3
* * *
yard.
into the
After
into Constitution,
I drove
and that the admission of the
yard,
got
I
the truck,
out of
started to-
rights
evidence so
guar-
secured violated the
wards the rear
door of
I
the Kroska home.
him
anteed
Fifth
to
Amendment
stopped my truck from
Kroska home
Case,
Constitution.
In the Carroll
it
de-
about four
right
or five feet,
out
in cided
prohibition
almost
federal
had the
officers
is,
right
front of it—that
the side.
walked
to
to
public
search an automobile on the
right
right
highway
around
hand side—the
hand
warrant,
when
officers
cause,
side
approached
house—and as I
probable
this had
car was
to believe such
ear I
keg,
noticed a
partly offending
the rear
against
deck
National Prohibition
open, and I stooped
over, and at
Taft,
delivering
that time Act. Chief
Justice
an
whiskey,
received
odor of
opinion, said,
moonshine
that:
however,
on
Peterson,
guarded
called
who
Mr.
“It
be
would
intolerable and unreason-
car,
and went into the Kroska home.”
prohibition agent
able if a
were authorized to
stop every automobile
find-
on the chance of
prohibition
of the other
ing
subject
liquor,
persons
law-
and thus
agent
substantially
as
the same
fully using
highways
to
inconvenience
Rhoades. Neither of
defend-
the officers saw
indignity
such
a search.”
ant
Rhoades arrested him in the house.
until
absolutely
any
The record is
barren of
evi-
If the
search
seizure
viola
why
prohibition
indicating
tive
Fourth
Amendment to
Consti
nothing
went
is
to defendant’s farm. There
tution,
thereby
then the evidence secured
they
any
to
sus-
indicate
to
suppressed,
though
it
shоuld
even
pect
any
premises
his
defendant had on
was obtained -from an automobile. An un
intoxicating liquor,
so that
justified search
seizure violates the
forming
probable
basis
cause
Amendment,
Fourth
whatever the character
search which
was such was se-
made
property seized,
whether it was
upon
cured
them after
entered
home,
office,
an
an automobile,
or in
private premises
The car
by force, by
defendant.
stealth,
whether taken
or
protects
or four feet of his
within
fraud. The
three
Fourth
Amendment
citizen,
guilty, against
or
home,
they observed
whether innocent
agents,
and the
every unjustifiable
anything
govern
intrusion
suspicion,
arouse
with ref-
privacy, and
has been said
ment
his
erence to the contents of the
were in de-
confer,
that these amendments
yard,
fendant’s
within a few feet of his home.
'
government,
right
“the
be let alone.” The
appears
far
record, they
So
from this
Amendment, however,
pro
Fourth
does not
trespassers.
40,
27,
Section
USCA, pro-
title
hibit
the search without
an auto
warrant
vides that:
illegally
liquor
transported,
mobile for
commissioner,
assistants,
“When the
his
upon probable cause,
search
is
and has been
inspectors,
any
or
law shall
officerof the
dis-
probable
held that to
is
show
cause it
nec
any person
transporting
cover
in the act of
essary that
should
the officer
had before
intoxicating
law,
liquors
in violation of the
legal
suspected
any wagon, buggy,
automobile,
water
enough
act,
if facts
but it is
have come
craft,
duty
air
it shall
vehicle,
such
attention
a character
to lead
any
intoxicating liquors
and all
seize
reasonably
prudent
man
discreet
to be
being transported contrary
found therein
possessed
liquor
illegally
is
lieve
law.”
searched. Dumbra v.
automobile to be
Unit
construing
statute,
Supreme
States,
546,
435,
S.
45 S.
Ct.
L.
ed
States,
in Carroll
Court
United
question, therefore,
Ed.
resolves
132,
280,
States, 267 U. S.
45 S. Ct.
United
inquiry:
officers,
Did
be
itself into the
these
543,
790,
L.
L. Ed.
A. R.
said:
287, 69
private prem
fore
entered defendant’s
right
validity
ises, possess
search and the
such information as
lead
“The
reasonably
prudent
dependent
right
man
discreet
to be
are
the seizure
liquor
illegally
They
possessed
dependent on
lieve that
the reason-
arrest.
States,
seizing
has
belief his automobile? Weeks United
officer
able cause the
L.
34 Ct.
58 Ed.
R.
U. S.
S.
L.
contents of
offend
automobile
1177;
A.
1915C,
1915B,
Cas.
against the law.”
Ann.
justify
sei-
search and
ernment seeks to
41 S.
States, 255 U. S.
Gouled v. United
States,
Day
court,
zure.
v. United
Lbr.
thorne
Ed.
Silver
261, 65 L.
Ct.
by Judge
said:
opinion
Kenyon,
supra,
Ct.
385, 40 S.
States,
S.
251 U.
Co. v. United
1426; Car
L.
24 A.
R.
L. Ed.
a be
reasonable cause is
“Probable or
Ct.
132, 45 S.
S.
States, 267 U.
roll United
fairly arising
facts
circum
out
lief
790; Agnello
R.
543, 39
L.A.
280, L. Ed.
party
known
officer that
stances
to the
4, 70
S. Ct.
20, 46
States, 269 U. S.
v. United
engaged in
commission of
crime.”
the,
Byars v. United
L.
145, A. R.
L.
Byars
Court, in
v. United
Supreme
71 L. Ed.
28, 47 S. Ct.
273 U.
States,
S.
States, supra, said:
States, 275 U. S.
United
520; Gambino
A. R.
137, 72 L. Ed.
48 Ct.
“Nor
it material that the
*4
S.
States, 116 U.
Boyd
1381;
v. United
a
revealing
in
violation
successful
746;
Im
Go-Bart
29 L.
in
prosecuted
6 S. Ct.
Ed.
A
of a federal statute.
search
States, 282 U. S.
porting Co. v. United
law-
not
violation of
Constitution is made
Husty
374;
Ed.
158, 75 L.
by
light;
doc-
brings
Ct.
and the
51 S.
ful
it
S.
51 S. Ct.
States,
by
court,
recognized
trine has
been
this
United
never
Day
(C. C.
629;
v. United States
Ed.
our constitu-
75 L.
nor can it be tolerated under
80, 81.
A.) 37 F.(2d)
system,
tional
crime discov-
that evidences of
by
making
a
in
search
ered
federal
a
officer
neither
prohibition officers
may
lawful warrant
be used
for the arrest
nor warrant
warrant
search
the victim of the unlawful search where
generally held that
quite
It is
of defendant.
timely challenge
interposed.”
has been
lawfully "placed under
is
where a defendant
Importing
arrest,
Go-Bart
Co.
United
he
to such
then, as an incident
arrest,
by
States, supra,
opinion
Justice
place of his
an
Mr.
may
may
searched, as
also the
be
Butler, it
previous
is said:
Here, however,
no
with
arrest.
war
knowledge
the facts or circumstances
“The
Amend-
clause
Fourth
first
suspicion
ranting
that defendant
even a
right
be
people
ment declares: ‘The
violating
Prohibition
guilty
the National
persons, houses, papers,
secure
and
illegally
or that his automobile
been
Act,
effects, against
and
unreasonable searches
liquor,
his
transporting
officers entered
seizures,
general
shall not
is
violated.’ It
uninvited,
them,
private premises. One of
every
and forbids
search that is unreason-
finding
upstairs,
home, and,
entered
able;
protects all,
suspected
it
those
premises
consti
him. The
entered
arrested
knоwn to be
as
inno-
offenders well
curtilage
defendant’s home
tuted the
cent,
unquestionably
and
extends
(C. A.) 299
[Temperani
States
v. United
premises where the search was made and- the
(cid:127)
(D.
365;
C.)
Di
States v.
Corvo
United
papers taken.”
124;
State,
36 Okl.
Turknett
Facts and
known to the
circumstances
State,
37 Okl.
Cr.
254 P.
Russell v.
entering
premises,
officersbefore
defendant’s
State,
110 Tex.
Cr.
P.
Wolf v.
them,
reasonably
sufficient
lead
discreet
S.W.(2d) 350; Childers v.
Cr. R.
men,
prudent
liquor
and
that
to believe
Ky. 848,
106],
Commonwealth, 250 S. W.
possession
automobile, may
in his
in his
field,
open
and
that term is used in
not
so,
existed,
but, if
are not reflected in
44 S.
States,
Hester United
this record.
445, 68
It
well be
cannot
Ct.
argued
any,
arrest;
fact,
error,
But
was lawful
claimed
this
that
overruling
suppress,
defendant’s motion to
flagrantly
appears
lawless
far as
so
by him
record,
only
nonprejudi
was waived
and rendered
facts or cir
from the
and the
by
by
might cial
reason
that he
took
known
which
himself
cumstances
the officers
reasonably
stand and
prudent man
witness
admitted that
owned
lead a
discreet and
liquor
possessed
automobile which had
illegally
and
to believe
searched
that
intoxicating liquor
therein;
found
such
and
the automobile were
were obtained
by
produced
was the
of their
that
lawless invasion
them
constituting
against the defendant whieh was
premises
curtilage
of-
secured
and
virtue
unlawful search
seizure.
words,
defendant’s home. In
were
already been
wrongfully upon
premises
has
observed
defendant
of defendant
It
timely
that
his motion to
wrongfully searching
posses
suppress,
filed
very
matter
attention
sions
looked into
procedure
coupé
court, and was because
rear deck
and ob
adopted
the court
the motion was not
gov-
the information
which
that
tained
testimony
fore
lieved
the car
the defendant
waived
here was
illegal evidence, and so he
testimony
have
it in the
testimony
transported
motor
seareh
troversy,
the shells
hands
mony
latched, ’and
heard before
physical
seareh
mony
ing liquor, and
was the
deny
illegal testimony,
open,
the
parked
been
disclosing
ed the
fendant
of
be allowed
right.
bile,
er
effect
already
quired it'
behalf
practice adopted
Cofei* United
Court of
[9]
Agnello v.
'“His
It follows that it was
the
While
objection
witnesses
motor
intoxicating liquor,
It
testimony
used
defendant’s
voluntarily testified,
to
was induced
by
v.
that,
in the car was
but
secured
must be
Fourth Amendment
Gouled
had not been used
by
ear,
been referred to.
automobile, and denied
the
evidence,
testifying
that he was
illegal transportation
was
seareh.
since the
the defendant
Appeals
induced
that the seareh
of the
was
any
rear deck
testified that
the radiator
evidence
seizure
effect that
was secured
to the
jury, conclusively
the defendant to the effect that
denied
appeared from the
called to
United
which he
prevail
v. United
prejudicial, and
testimony
hot.
of the
there was
borne
which
by
the time
where
liquor,
States,
337 testified, presence Rossini of intoxicants. other evidence feet of them. The ahead liquor, but objection, ef- he agents that had transportation is that he bottle, just driv- it was for his own use. One had that appellant admitted he fect that body purposes rubbing said, was alcohol for evidence short, en the in. the entire car beer,’ or was was ‘near recently driven and that beer that car was into this had no bought by beer,’ and he farmyard him for ‘near pieces, as fol- of three consisted intоxicating or knowledge con- fol- agents seeing lows : it driven that As alcohol. this lowing it; appellant that tained an excess of the admission voluntarily plaintiff in; mo- admitted that error had driven the evidence he it warrant, under this evidence found tor still hot. All of officers injured substantially given by agents. jury must not have been the two he could them, credibility such evidence. Without approved believed their the admission cannot way prejudice therefrom, a ver- he possibly or there to reach was no substantial situation, can it guilty. dict In this how urge reversal therefor.” slightest prejudice be there was that White same effect are cases to Other from motor? evidence as to the hot (C. 9);A. 872 C. S., v. U. mo- agents Could that (C. 582, 585 C. S., v. U. Bilodeau positive tor was still add hot S., 9); McFarland v. U. A. closely had seen and followed this F. S., 299 Libera v. 9);A. U. (C. C. car a hundred it few feet S., 299 Temperani U. 9);A. (C. C. add the tes- parked ? such evidence Could 9); (C. A. Malacrauis C. F. timony appellant ad- 4); (C. C. Jones 253, 255 A. 299 F. S., having just mitted the ear in? The driven Savage v. U. (C. 4);A. C. 296 F. clearly is this evidence into fact came Honeycutt A. (C. 4); F. S., 295 being ease, proof at all as ear 4). (C. C. A. S., 277 in, driven but it came in connection with inwas this convinced that I am appellant. admission of There never so hold way prejudicial, and to possible no any doubt in the minds or the evidence releasing practical effect will just this driven seen proves entire evidence criminal, which farmyard, appellant into the denied charged, guilty offense clearly is he it in to them that had driven faced properly convicted. he was which and, contradicting physical with thereupon, made admission Viewing had driven in. situa- entire tion, impossible it is me to see how any prejudice could have been the ad- CLUB, Inc., piece mission of this evidence. v. ANSELL. ISLAND SWAN No. But seems the view ma *8 jority that, because some of evi above Appeals, Fourth Circuit. Court of secured an un deemed July 8, 1931. and seizure, lawful search vice of admit ting such be cured even evidence cannot though appellant himself, or testi other mony entirely nullifies effect of such tes timony. theory ap This pellant given nul cannot be lifying testimony voluntarily, but under the compulsion of a situation created the er roneous I think view action court. contrary authority directly and is dan gerous jus the administration criminal court tice. [Rossini directly contrary has held in a 353] appellant objected case to evidence presence of intoxicants claimed to been found in an search and saying: “The is that there third conclusively
evidence which established the