George Sloane was tried, convicted and sentenced on thrеe counts of an indictment. The first count charged unlawful possession of whiskey, the second unlawful, possession of a still, and the third unlawful manufacture of whiskey at 30th and High streets, Okla^ homa City, Oklahoma, on or abоut July 14, 1929.
A Mr. DeMonbrum advised L. C. White-neck, a federal prohibition agent, that а man had reported to him a still was being operated near 30th аnd High streets. White-neck telephoned such information to W. I. Eads, a deputy sheriff of Oklahoma county. Eads stated that he did not know whether hе could get any one to assist him. White-neek replied that he cоuld get police officer Ryan to help him. Eads, in company with Ryan and deputy sheriff Kerr, went to 30th and High streets, searched the premises and secured the evidence upon which the government predicates its ease.
Eads testified that Whiteneek did not tell him “when to go, or whether to go or not, but * * * gave him the information” and that “he was аcting on his own initiative, and he got the search warrant and started.”
The morning following the search by the state officers, Whiteneek saw Eаds and the latter told the former that Kerr had filed the ease in the сounty court. Whiteneek discussed the) matter with Kerr and the latter stated it was agreeable with "him to have the case prosecutеd in the federal court, and that he would have the county attornеy dismiss the state ease.
Counsel for Sloane moved to suppress the evidence obtained by such search on the ground that it was obtained in violation of the Fourth Amendment to the Constitution of the United States.
A prohibition officer must not be permitted to. procure a search by state officers in order to secure evidencе for a prosecution in the federal court which he could not personally secure without violating the Fourth Amendment. He must not be permitted to do indirectly that which he cannot do directly, and thus circumvent the provisions of the Fourth Amendment against unreasonable search and seizure.
While the instant ease comes very closе to the line, we are not convinced that such a purpose actuated Whiteneek when he gave the information to Eads. By passing on the information, he may have provoked the actiоn of the state officers, but he neither ordered nor directed the search. Eads did not act under the order or direction of Whitenеek, but on his own initiative. The state officers were not acting for thе federal officers nor solely for the purpose of aiding in thе enforcement of the federal law. They were performing their normal duties as state officers.
The ease is distinguishable from Gambino v. United States,
We conclude that the motion to suppress was рroperly denied.
Counsel for Sloane contends that the government failed to prove venue. The question is raised here for thе first time. During the trial, counsel for Sloane stated, “There is no defensе to the ease at all except this motion to suppress the evidence.” In view of this statement and the fact that the question was not raised below, we will not consider it. Tuckerman v. United States (C. C. A. 6)
The judgment is affirmed.