158 F.2d 818 | 10th Cir. | 1947
The government instituted a libel action against one 1941 Oldsmobile Sedan, Motor No. OK 171667, in the United States District Court for the Western District of Oklahoma under Sections 223 and 224, Title 27 U.S.C.A. for forfeiture thereof, on the ground that it was being used to transport tax paid liquor into a dry state in violation of Ch. 9 of Title 27 U.S.C.A. Ernest C. Shirey, the owner of the automobile, intervened and by motion asked the
Whether the search and seizure of the automobile without a search warrant was legal depends upon whether the Alcohol Tax Unit investigators in question had probable cause to believe that the car in question was being used in violation of law in transporting intoxicating liquor into Oklahoma, a dry state. What constitutes probable cause authorizing an officer to make a search without a warrant cannot be defined with exactness or precision. Generally, it may be said that probable cause exists where the facts or reasonable inferences to be drawn therefrom are such as should lead a reasonably prudent and intelligent person to conclude that there is good ground to believe that the law is being violated.
The facts from which probable cause must be found, if it existed, are these: On October 4, 1945, E. C. Shirey
The circumstances upon which the government relies to establish probable cause justifying the search without a warrant are these: The two agents testified that in the summer of 1945, prior to this search and seizure, they had received information that tax paid liquor was being hauled into Oklahoma from Los Angeles in cars, under the guise of being Travel Bureau cars; that such information related to one Sam Greer and a man known as “Blackie”, who lived in Bethany, Oklahoma; that in September they located a two-toned green, 1941 Oldsmobile (the car now in issue) in Bethany, Oklahoma, which answered the description of the car reported to be driven by Blackie; that a check of the tag number of this car revealed that it had been owned by Sam Greer, who had the reputation of being a liquor runner and who on a previous occasion had escaped when he was stopped by Alcohol Tax Unit agents; that Sam Greer had lately transferred title to this car to E. C. Shirey of Bethany, Oklahoma. They testified that in September they had interviewed the then Chief of Police of Bethany (deceased at the time of the trial), and the Chief of Police informed them that he knew Blackie and that he had been hauling Travel Bureau passengers from the west coast to Oklahoma City and had the reputation of hauling liquor from out there into Oklahoma. They testified that on October 3, 1945, they received information that
That the information was not only reliable, but also true, stands admitted. The information upon which the officers acted was true in every respect. Shirey did leave Los Angeles with tax paid whiskey in the car in question and did come into Oklahoma with it, over Highway No. 66. But that is not all the information the officers had. They knew that Greer, had the reputation of , hauling liquor into Oklahoma under similar circumstances. They had stopped him on the highway and had, attempted to arrest him .and had him flee and escape. They ascertained from their conversation with the Chief of Police of Bethany that Shirey had the reputation of bringing liquor into Oklahoma in Travel Bureau cars. They checked and found that Greer had transferred the car in question to Shirey; they also followed Greer to Shirey’s house, and while they did not observe the two together, this is evidence of the association between two men who had the reputation of running liquor into Oklahoma from California in Travel Bureau cars. All of these facts and circumstances amply warrant the conclusion of a reasonably prudent man that the car in question at the time was engaged in unlawfully transporting liquor into Oklahoma, and would accordingly justify the officers in searching the car without a warrant.
The two Alcohol Tax Unit agents who received the confidential information and made the arrest and searched the car, while on the stand refused to reveal the source of the information upon which they acted. Their refusal to reveal the source of this information was apparently what prompted the trial court in refusing to receive the evidence resulting from the search and seizure and in declaring the search and seizure illegal.
Whether information from confidential sources which the witness refused to reveal, standing alone, would be sufficient to constitute probable cause warranting a search without a warrant, is a question upon which the lower courts are divided,
But conceding, without so deciding, for the purpose of the opinion, that all of the evidence resulting from the search should have been excluded, the judgment must still be reversed. While it was necessary to the government’s case
The judgment is reversed and the cause is remanded, with directions to proceed in conformity with the views expressed herein.
Pearson v. United States, 10 Cir., 150 F.2d 219; Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035; Commonwealth v. Carey, 12 Cush., Mass., 246; Director General of Railroads v. Kastenbaum, 263 U.S. 25, 44 S.Ct. 52, 68 L.Ed. 146; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790.
Shirey was known in Ms community as “Blackie.”
United States v. Keown, D.C., 19 F.Supp. 639, contains an analysis of a large number of cases on both sides of the question.