The above-entitled cause, an indictment for violation of the National Prohibition Act (27 USCA), is before the court upon a motion to suppress evidence filed and entertained prior to the case being sot for trial, said motion being based upon an alleged unreasonable search and seizure in connection with the transportation of intoxicating liquor.
The facts have been presented upon the affidavit of tho defendant and one other in his behalf fox- the movant, and by tho affidavit of one federal prohibition agent and the oral testimony of another on behalf of the United States. A summar y of the evidence, at least as to the controlling features, is that the two federal prohibition agents received what one agent says in his affidavit was reliable information, and what tho agent who testified orally designates ns tho advice of a reliable informant, that the defendant at a certain time would be making delivery of intoxicating liquor at a certain designated place on the evening- in question; that this information was received between 4 and 5 o’clock in tho afternoon of tho day when such transportation was to- take place; that such information was received in Thermopolis, Wyo., which was approximately 35 miles from the designated spot; and that the designated time of transportation was to approximately between 7 and 8 o’clock. Tho officers thereupon pioeeeded to this place, discovered tho defendant with his wife and children driving a Ford car, passed him by, and afterwards stopped on the roadside awaiting the approach of defendant’s car. When it did so approach it was stopped by the officers and an inquiry made as to whether whisky was being transported. Upon a denial of such transportation by the defendant, tho officers testify that they discovered npon looking into the automobile a stone jug projecting- from a rent in tho g tinny sack which surrounded it and upon which, ono of the children sat, and detected an odor of whisky, whereupon the defendant was placed under arrest and the jug of whisky and ear confiscated by tho officers. The agent who testified orally stated that ho had formerly been a police officer in the city of Gasper, and that tho defendant had been convicted in the police court of that citjr of violation of the liquor ordinances, although the witness did not testify as to what form of violation was involved in such conviction.
The element around which the principal point in this case revolves relates to the re *628 fusal of the prohibition agent while on the stand to reveal the name of his informant who had advised him of the proposed transportation by defendant, upon the ground that it was contrary to the rules of the Department to reveal the name of an informant. Thereupon counsel for the defendant moved to strike out the testimony of the agent concerning the alleged information so furnished, up'on the ground that it was insufficient in law to sustain the contention that the search and seizure was made upon probable cause. The witness retired from the stand under the authority of the court and consulted with the district attorney and the Deputy Federal Prohibition Administrator, and the district attorney thereupon announced that, in view of the rule of the Department respecting the disclosure of the name of an informant, they would elect not to have the witness testify as to the identity of such informant. At this point, upon renewal of the motion to strike that portion of the testimony, the court announced that it would not be stricken, but would be considered in the analysis of the entire evidence in the case, as to whether or not such evidence was sufficient to establish a probable cause for the search and seizure.
It is plain, under the pronouncement of the Supreme Court in the case of Carroll v. United States,
“In none of the eases cited is there any ruling as to the validity under the Fourth Amendment of a seizure without a warrant of contraband goods in the course of transportation and subject to forfeiture or destruction.
“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.”
The learned justice, however, indicates strongly that the doctrine of allowing search and seizure of automobiles along the public highways without a warrant ought to be considerably restricted for the protection of the great traveling public, as is suggested by his language on page 153, 154 of 267 U. .S.,
“Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such ■search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor,'and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”
A fair analysis of the Carroll Case simply amounts to this, that upon probable cause an automobile may be searched and seized upon a public highway for liquor transportation by proper authorities without a search warrant, but that every case must rest upon its own bottom and be controlled by its own facts and circumstances as to the sufficiency of the probable cause.
As I view the testimony in this ease, the showing of probable cause must rest upon two circumstances: First, that the defendant had previously been convicted in the municipal court in Casper for the violation of liquor ordinances; and, second, that the agents had been informed by a reliable person, whom they believed, that the transportation was to take place at a certain time and place. All other circumstances surrounding the transaction were more or less incidental, and those following the stopping of the defendant’s car *629 upon the highway could have but little bearing upon the question.
As to the first point concerning the testimony of the agent that the defendant had been convicted in a poliee court of a violation of a city ordinance, it could have hut little weight, as it was not contended that the violation in any way concerned transportation. In passing, it may be noted that the information coming to the officers in the Carrol! Case, in which the search and seizure of a car was involved, did carry with it the element of a prior knowledge of transportation.
We then come to discuss that feature of the case which involves the refusal of the officer to give the name of Ms informant. Counsel have cited no eases upon the exact point, although there is language in the case of
United States
v. Allen (D. C.)
The Carroll Case strongly intimates that the procedure of searching automobiles for liquor violations upon public highways is only permissible when a search warrant cannot he obtained on account of the moving nature of the vehicle. I believe that the probable cause in such a ease ought to he such as might be established in a competent tribunal as the basis for a search warrant, otherwise the mental action of the officer amounts to no more than a suspicion, which, is admittedly under the Carroll Case and many other cases not sufficient for a search and seizure without warrant. If the officers who in this case made the search and seizure had proceeded upon their information to secure a search warrant (for which counsel for defendant in this contend they had ample time), it would have clearly been obligatory upon them to produce the evidence of the party who purported to know of the transportation about to be carried out, otherwise the attempt to secure the warrant would have been upon more information and belief, which the courts hold to be insufficient. I will not go so far as to say that the testimony of the informer upon a hearing of this kind must be presented to establish the probable cause, but I am of the opinion that the only safe rule to adopt will be to require officers who presume to make search and seizures of automobiles on the public highway, without warrant, to disclose every element which goes to make up their case of probable cause, and that this rule reasonably includes the source of their information, so that the court may determine whether or not nnder all the circumstances a case of probable cause has been established, and perhaps as well to restrict informers to a sincerity of purpose.
Of course, it is well established that the so-called successful result of an unlawful search and seizure has no bearing upon its legality and cannot bo considered.
The rule laid down in the Carroll Case, as found in the language of the prevailing opinion, is manifestly one which should not be unduly extended, and, comparing the facts in that ease with the facts in the case at bar, I am of the opinion that the probable cause here has not been sufficiently established to sustain the search and seizure.
*630 The motion to suppress will therefore be sustained, and an order will be entered suppressing' the evidence in said ease and reserving to the plaintiff proper exceptions.