United States v. William Garland Bradshaw

agreed counsel, and Fiocconi have sev- Since Kella still to submit completing years jury eral to serve before on that basis. case to the Judge Thereafter, one-third of their sentences before in Weinfeld provisions charge perti- conceiva- jury 4202 could cited § bly apply, pre-May provisions need not decide and the we old law nent statute, conspiracy which count. At time whether this acts of the 1 overt permits parole, applies post- them even or the no time was the new law though May sentenced under mentioned. 1 overt acts Since parole. appellants unquestionably old law which barred convicted law, no under old there was error Affirmed. sentencing provisions applying its well. appellants however, argue,

even if their convictions were based law, they solely old on violations

may 4202, still resort to 18 U.S.C. § provides pertinent part that “a prisoner may . . . be re

Federal parole serving America, one-third leased after UNITED STATES ” Appellee, . of such term or terms. empowers Board the Parole Since § regarding grant to make decisions BRADSHAW, Garland William ing parole independent trial Appellant. long judge’s after that sen sentence No. 73-1803. prosecu tence has been entered and Appeals, States Court terminated, appellants tion has been Fourth Circuit. argue way that it is no limited Argued Oct. savings 1103(a). clause contained § argument Confronted with this same Jan. Decided Bradley, supra, Supreme ex Court s.2 pressly pass declined to on its merit argument raised before also Huguet, this court United States 1973). (2d 481 F.2d 891-892 opinion actually expressing an

Without suggested issue, most on the appropriate ap

course would be

pellant bring an action [the Board]

Parole Board “should parole

refuse to consider him for after expired.”

one-third of his sentence has than, may recently be more but shall not less 2. The Court has decided to review Marrero, maximum sentence question. than one-third Warden cert, - court, (3rd granted, -, imposed Cir.), court impris- may (1974). maximum sentence fix the L.Ed.2d deciding Bradley, in which event be served onment While not the issue may prisoner specify Supreme decide, however, court Court did parole eligible time as parole provision, at such become § second 18 U.S.C. parole may 4208(a) determine. the board of is unavailable to defendants sen- procedure §in set forth § § tenced under the old law. Unlike U.S.C. sentencing, 4208(a) 4208(a) judge time of the’ occurs states that a district prosecution, part may (1) designate § in the sentence of im- Since no-parole 1103(a) applies prisonment imposed rule a minimum term at expiration law, prisoner § in 26 U.S.C. contained shall the old of which the eligible 7237(d), parole, controls. become which term Larry Pitts, Newton, (Stan- W. N. C. ley Corne, Corne, Pitts, J. Warlick & Newton, C., brief), appellant. N. on Scofield, Atty. Michael U. S. Asst. S. (Keith Snyder, Atty., brief), S. U. S. appellee. BOREMAN, Before Senior Circuit Judge, WIDENER, and WINTER and Judges. Circuit WINTER, Judge: Circuit appeals Defendant from his conviction upon jury possessed verdict that he non-tax-paid whiskey in violation of 26 5604(a). 5205(a), U.S.C. §§ question appeal raised is the ad- missibility, trial, at defendant’s of cer- jugs togeth- whiskey, tain of moonshine testimony concerning er with their dis- covery, parked found in a truck on de- property fendant’s near his residence Alcohol, Tobacco and Firearms Division of the Treasury Department. On the testimony basis of Williams’ con- cerning leading up events to this war- discovery seizure, rantless the trial Agent Williams, objection had known selves. who judge overruled defendant’s years, fifteen sixteen admissibility defendant for amend- based on fourth recog- government was certain that defendant had contends ment. him. his vehi- nized Defendant circumstances of the discovery left, cle near his but the either and seizure fell within residence exceptions officers were determine recognized unable to of two both or to whether he entered house prohibition the took warrantless the nearby fields. within the of evidence searches—“seizure plain view” or “automobile search.” encounter, this the offi- As a result of judgment disagree, and we reverse the they leave the decided could not cers government grant trial, a new if and risk scene without a substantial advised. be presence, defendant, alerted to

might or evi- remove contraband might in the be contained dence that I. car. the third officer abandoned After approxi- On November go up car, they in to arrived his decided mately Agent p. m., and a 1:30 Williams house, him the to to defendant’s summon to state enforcement officer were taken connection, him if ask door and what vicinity by of defendant’s residence a car as any, he had with the abandoned a second state officer who enforcement Agent searching preliminary Wil- to it. Agent drove and his then off. Williams de- drove to then others .liams companion ra- remained in nevertheless fendant’s residence. with the dio contact other officer Agent attempts to summon Williams’ reputation, Defendant vehicle. had a inter- front defendant to the door Agent being Williams, to a known rupted by in a men the arrival of two moonshiner, the visit and ingredient carrying bran—a usual truck adjacent de- was to the fields to whis- in manufacture of moonshine property fendant’s for a still. The key. a short discussion After access to was an defendant’s residence officers, and off the two men drove length quarter in old road about a mile knocking Agent at the resumed Williams yard. to an end that came in his front calling door, by name. defendant front During adjacent their search of the Agent fields, Failing response, officers three vehi- observed obtain to a residence, try near back door. cles decided to defendant’s Williams including house, liquor he one from which the En to rear of route parked near passed was later A fourth vehicle Ford truck a 1952 seized. road, by building. approximately a It seen the side of access be- yond property limits half size with sideboards ton and a apparently swinging and abandoned. doors in the rear which whatever This were closed. meant Upon approaching vehicle, the fourth resting on the bed have been detected moon- officers aroma of by detected not have been truck could emanating shine therefrom. glance passer-by. When a the casual proved their search fu- When for a still got truck, he noticed near this Williams tile, the officers in or- decided leave to strong moon- a it exuded odor prepare der to of the stake-out a ability Agent whiskey. shine abandoned vehicle. Williams identify whis- the odor of moonshine to by summoned the officer the vehicle key dispute. is pick spot. up radio to them a certain walking pickup “stopped at the As then Williams point, truck” and “looked drove them rear swinging pickup proceeding direc- of crack the back kind space made an between tion of his house. officers crack was a doors”—this edges fit did not unsuccessful effort them- conceal doors Through Secondly, discovery snugly together 91 S.Ct. at 2038. when closed. a of the observed view must have this crack jugs gallon plastic large been quantity one inadvertent. containing liquid. en- He then a white underlying excep- The rationale truck, ascertained that tered the tion is the abuses which the fourth liquor and jugs moonshine contained requirement amendment warrant He, course, did not have seized signed them. prevent satisfactorily dealt seizure. search or warrant for the origi- requirement that the constitutionally justifia- intrusion nal be II. consequence, need- it would ble. lessly per- inconvenient, and sometimes learning commonplace that war It danger haps police to the evi- unrea seizures are rantless searches dence, require ignore ev- meaning sonable plain in until idence view have ob- they fit within amendment unless fourth describing particularly tained a warrant cas carefully of defined classes certain 467-468, it. 403 at 91 U.S. S.Ct. Dombrowski, Cady 413 U.S. es. (1973); Turning L.Ed.2d application of now to the Municipal Court, U.S. principles Camara the in- these to the facts of 523, 528-529, agents 87 S.Ct. 18 L.Ed.2d appeal, stant we conclude that the (1967). to the so we And respect turn entered an which area with exception prohibition “plain to the view” expecta- the defendant had a reasonable urged against warrantless privacy protected by of the. fourth tion government. by the us they came onto his amendment when However, premises. had a le- by exposition Su- The most recent gitimate un- this reason for incursion “plain excep- preme Court view” of prem- connected a search such opin- with of plurality in can be found tion They against directed ises accused. Hampshire, Coolidge New ion go clearly defend- entitled to onto 2022, 29 L.Ed.2d 564 91 S.Ct. premises question him ant’s concerning in order (1971). There, prerequisites to the two near abandoned vehicle availability exception pre- of the Furthermore, property.1 cannot scribed. Agent say that Williams exceeded the First, presence at the officer’s being scope legitimate purpose of his for vantage point he dis from which by walking around back there plain must evidence view covers get an- door when he unable to an was unjustifiable not amount to an intrusion at the front door. swer respect de into an area with to which got Agent It follows expectations privacy pro that Williams fendant's smelling range of the truck That tected is, the fourth amendment. liquor un- was found without de must not have entered officer intruding justifiably has, privacy, into defendant’s if he or, fendant’s zone privacy. entry by fourth Had justified amendment zone such must have been liquor point, pur object, he this hot “discovered” the at “a warrant for another suit, arrest, applica- doctrine would view be search incident lawful legitimate being Agent However, to its seizure. some other ble Wil- reason present liquor did “discover” until unconnected direct liams not with search against actually ed he it the crack be- the accused.” 403 U.S. saw attorney, agents’ purpose going that onto Defendant’s course found Agent property was, fact, and Of cross-examination Williams what Devinney, testimony be, ficer advanced the that it i. e. to interro- contention showed gate vehicle. the actual of the was a about the abandoned intrusion clearly liquor say finding search of in which was this was the truck We cannot admitting found. derived erroneous. impliedly search, from the district court truck, the truck within the truck. “searched” the rear doors of he tween meaning certainly “plain view,” fourth amendment. liquor was meaning ordinary of that within the where, in the hold that Agent phrase, first de- Williams when initially justifiable intru course of an emanating from the odor tected sion, facts which an officer discovers he, point, Nor did truck. give him that evidence reason to believe conclude, upon which to basis in further will found crime actually certainty, liquor original beyond scope trusion present ex- An alternative truck. intrusion, “plain view” doctrine proba- equally planation of smell was independent inapplicable unless there liquor had once been ble —that justification for such further intrusion.3 removed in the truck but had since been it was a directed Since leaving permeated its va- the truck defendant, whether we must examine pors. more thus had no Williams vali the “automobile search” doctrine ground than infer a reasonable further intrusion dates presence liquor point. A fur- at this looking through crack between necessary to ther visual observation was doors truck. hypothesis. confirm the III. possible It under cer confirmatory It is established to make ob having officer, circumstances, original tain an exceeding the servation without probable auto that an jus cause to believe intrusion, had of his of the commis contains prop mobile presence tified on his defendant’s may crime, auto search that erty making sion of a up point, fur to and a that without first for such evidence protected mobile ther intrusion into an area of obtaining v. a warrant. Carroll privacy. Objects lying of on the bed the 132, 280, States, 69 by 267 45 L. except U.S. some truck could be seen Maroney, (1925); Chambers special Ed. 543 pains look one who took to 1975, 26 L.Ed.2d through 90 S.Ct. the crack. truck States, (1970); very Gomori v. parked property on defendant’s (4 1971). no F.2d Cir. cir near his such to Under .residence. Agent point the at which doubt at cumstances, a reason the defendant had of the distinctive odor expectation smelled Williams of his able that the contents emanating the gen from moonshine to truck would remain unknown the probable truck, to believe he had cause public.2 Thus, when eral we believe that the truck contained contraband. that crack looked the Williams together known Taken defendant’s of the between the closed rear doors requirement. Slayton, This circum- Compare, “inadvertence” F.2d 1188 Smith split authority in the (4 1973) (Evidence has led a of stance to on front seat of Cir. viability of public street). courts over the continued lower auto on Compare, requirement. the “inadvertence” Turner, 264-265 Although Martinez v. convinced that we are also requirement) (10 1972) (applying discovery liquor the ultimate the Williams’ Court, Superior by 8 Cal.3d required with North v. as not “inadvertent” Cal.Rptr. Coolidge, 502 P.2d 1305 plurality opinion the need (rejecting it). justifia- showing inadvertence, to addition “in- expectations of the uncertain status In view ble intrustion into requirement, our deci- beyond dispute. we rest privacy, It is clear advertence” is not ground did opinions Coolidge separate that that sion on from the (Burg- present his intrusion until the evidence not discover members of the Court three jus- original J.) Blackmun, White, J., er, J., disa- had exceeded the bounds and C. justices discovery being present. requirement All the gree that tification with the original agreed Coolidge These, together intrusion inadvertent. be excep- justifiable (Rehñquist, J., view if Pow- has be to new members two apply. majority J.) ell, is to make a tion could again ob- reputation if a warrant must be found as a moonshiner opportunity earlier, scene, presence tained.” moments “[T]he carrying fleeting . .” 403 U.S. is . in a vehicle of two individuals distilling (emphasis at 2035 91 S.Ct. materials of one of the raw Coolidge supplied by plurality.) operation, Agent detection of moonshine amounted odor fully accept authorita- If we could probable moon- cause for the belief that Coolidge, plurality opinion in re- tive the shine found truck. was to be clearly required. Of versal would tending specific justify a war- factors again, ma- lack of a clear But here enu- of an automobile rantless search Coolidge jority a deci- makes difficult plurality, two are merated scope doctrine sion as to the exact present object here—the of the search automo- search of an a warrantless guarding was contraband and the upon cause. bile be made while two of officers Coolidge Hampshire, supra, a In v. New third went to obtain a warrant would Supreme plurality found Court But, have involved some inconvenience. inapplica- doctrine Chambers/Carroll entirely absent from this situation automobile ble to a certain seizure of an indicating risk of loss of the facts because plurali- We doubt that evidence. nothing case is in this . there Coolidge regarded ty in factors two meaning purpose of invoke present here alone as determinative. rule of Carroll United States— place, the first inconvenience flight, no no criminal alerted bent guard standing over a while an- vehicle high- open fleeting opportunity on an likely other officer obtains a warrant way chase, no con- after a hazardous to be most automobile weapons, goods or traband stolen unlikely plural- searches.4 It ity thought waiting no to move confederates authorizing evidence, even inconvenience large pro- warrantless portion such guard special detail possible particularly cases, of short, by In immobilized automobile. conception of since it is clear imagi- legal possible no stretch of the underlying exception is rationale nation can made into a case this be based on risk of loss of evidence. practicable where to secure “it is Secondly, plu- that the we do believe 462, 91 a warrant.” 403 U.S. rality place intended to determinative at 2035. significance upon the be- distinction evidence” tween “contraband” and “mere plurality explained that Elsewhere the categorically rejected in that had been specific exception a automobile 294, Hayden, Warden 87 S. v. 387 U.S. “exigent cir- instance of the doctrine of (1967).5 Ct. 18 L.Ed.2d 782 justifying cumstances” a warrantless search: is, however, There substantial doubt concerning Coolidge plurali-

As we said in whether Chambers ty’s “exigent justify apparent view that the “automobile circumstances” exception” of “an automobile is limited to circumstances warrantless search obtaining stopped highway,” on the where there where the of a warrant would any longer probable cause, is risk loss of a cor- is because the car evidence is alerted, applying occupants “movable, the rect statement of the law. Coolidge, Supreme never courts other than the car’s contents only But, see, Menke, why 5. v. 468 F.2d 4. The reason this factor was not United States contrary (3 1972) Coolidge view con was that 20 Cir. cerning importance keep the fact that con cided to the vehicle under surveillance of object period automobile after of for a substantial of time traband probable had cause to seize it be- search. obtained taking fore action.

1103 differently Court have automobiles from houses for sustained warrantless purposes requirement. of of the warrant searches automobiles circum- under Cady Dombrowski, only v. 413 93 stances where the factor that could Although possibly imposi- S.Ct. at this new ele- militated required in- ment in the rationale for tion of the warrant is the the “automo- guard exception” posting face, not, bile on convenience of would its over appear apply vehicle for evidence while someone is sent to obtain People of Bukoski, warrant. a federal Mich. crime conducted federal v. 41 officers, App. 498, (1972); Cady decision in N.W.2d Peo- Dom- suggests ple Dumas, Cal.Rptr. 9 Cal.3d browski that the rationale for (1973); exception P.2d in a of is somewhat state Bozada, (8 flux. States v. Cir. 1973); Connolly, Coolidge Prior to the dissents in (9 1973).6 Connally F.2d 930 Cady, scope the decision in flatly case holds that the inconvenience exception automobile seemed to be care guard posting “exigent is an cir- fully require presence defined justifies dispensing cumstance” that indicating circumstances risk loss requirement. with the Do- warrant Certainly, of evidence. that is the explains rnas “case its result in terms of reading fair Coolidge Carroll-Chambers- th&_, expectation privacy the less intense per line of eases. We are not that attaches to automobiles when com- suaded that this line of cases has been pared personal residences. Such Therefore, abandoned or overruled. we expectation justifies privacy reduced are constrained to conclude that dispensing require- with the warrant particular search was invalid.7 We are ment when there is cause. persuaded ly where, here, the vehicle Furthermore, Supreme has Court property, defendant’s a cir recently that, stated in addition to the cumstance, believe, we which enhances evidence, risk of the extensive loss expectation privacy the defendant’s and often non-criminal contact with respect to its contents. automobiles that state enforcement offi- summarize, perform- cials have in To hold since two course justifies treating ance guarded of their duties could have argued proba- It could be own decision in cided in our Gills was whether there was Slayton, supra, Smith v. note also falls ble cause to search car category Judge stopped highway. into this of cases. Butzner had been on the held writing court, exposure the cited there was cause to search whiskey of evidence on the front seat of a car when the odor of moonshine was police detected, employed deceptive across the street from a sta- defendant exigent justifying prevent tion as an circumstance means to access to the trunk of the opinion attempted immediate seizure. His does not dis- vehicle and defendant to flee un- extremely close whether more than one officer was der adverse conditions to avoid guard posted sepa- so that could be the search. did not consider We the obtained, although pre- while a warrant was rate of a issue warrantless search. More- sumably police over, other were from the available the search was conducted defend- after arrested, station across the street. But ant vehicle searched principal basis of the decision was that was under his control at the outset of the plain applied, prior encounter, view doctrine because the blood so as a case decided to clearly California, stained seat cover was to one visible Chimel v. 395 U.S. 89 S.Ct. right public parking (1969), who had a to be on a 23 L.Ed.2d 685 warrantless might lot. have been sustainable as a search Indeed, a lawful arrest. search incident overruling 7. We disclaim are- intention several of the authorities cited Gills Gills, (4 States 357 F.2d 299 F.2d at 302. Cir. “incidental search” cases. 1965), think, despite continuing vitality and we do not the dis- If of Gills has been contrary suggestion, impairment impaired, sent’s that we achieve stems from Chi- today. mel, that effect sub silentio. issue from what is decided smelling get truck of moonshine when he was unable to an answer while the third obtained warrant with- at the door.” P. front significant evidence, out risk of loss (4) “It follows that in this search and seizure case vio- got smelling range of the truck lated the fourth amendment and that unjustifiably in- without sup- fruits thereof should have been truding fourth into pressed. privacy.” amendment zone of P. 1100. reasons, For these we reverse the (5) “Agent attempts judgment against of conviction defend- door summon defendant to the front present record, ant. On the there is interrupted of two the arrival lacking legally sufficient carrying men in bran —a usual a truck search, if convict defendant the sei- ingredient in the manufacture testimony respect zure and to them whiskey.” moonshine P. however, know, are excluded. We do not court, opinion As noted government whether the has available whiskey has a distinctive moonshine odor, and, contrary sought guilt other evidence of to be majority, I am reversing, used this trial. agent opinion “discovered” grant government therefore (see 1100-1101) pp. when the moonshine right anew, try if it be so coming from the odor he smelled the advised. and, looking crack granted. Reversed: new trial disturbing door, saw it without “totality vehicle. door of the Under (dissent- WIDENER, Judge existing Circuit and circumstances” facts ing) ensuing : F.2d, p. 302, here, Gills, 357 me not the unreasonable search respectfully I dissent and would af- prohibited by Fourth Amend- ground that firm the conviction on the ment. lawfully under the evidence was seized upheld a search under facts phrased exception, or as view government in no more favorable to mentioning plain circuit without Gills, (4th F.2d 299 view, “probable for the search cause cert, 1965), den., 384 U.S. complained Gills, infra, of.” (1966), a L.Ed.2d 532 p. 303. only by footnote case mentioned suggest opinion majority majority, I that: finds here the court overrules. legiti- (1) had a “. Although opinion majority states incursion mate reason for this [of holding did “not consider Gills curtilage] a search unconnected with search,” separate of a warrantless issue premises directed of such grasp ques- find difficult to how I it P. 1100. accused.” appeal, separately or other- tion arose on clearly go “They entitled to wise, the Fourth Amendment” “under premises objec- p. 301, Gills, in order onto defendant’s stated at unless concerning tion in the trial court to the admissibili- question him the aban- ty the search of the evidence was that property.” P. his doned vehicle near warrant. Gills had been made without a 1100. justi- precisely held that the search say “Furthermore, we cannot totality of facts and fied because scope Williams exceeded “probable cause created circumstances being legitimate purpose there of,” Gills, p. complained for the search by walking then, majority opinion, door around back 303. The

H05 spite holding p. its agent probable . “. . had cause to NATIONAL LABOR RELATIONS believe that the truck contained contra- BOARD, Petitioner, probable

band” and “. . cause d an the belief that moonshine was to be Lodge 743, International Association truck,” necessarily Aerospace Workers, Machinists and found in the holds AFL-CIO, Intervenor, something addition to required cause is for the search of mo- my

tor vehicle a warrant. In without CORP., UNITED AIRCRAFT HAMILTON ought opinion, this to come DIVISION, Respondent. case STANDARD expressed rule No. Docket 73-1148. Haley, (6th Appeals, States Court of 1963): Second Circuit. “If, hand, on the other the search oc- Argued Oct. arrest, curred before the it came with- Decided Dec. in the rule that a search without a engaged warrant of an automobile illegal transportation of intoxicat-

ing liquor, upon probable cause, made prohibited by

is not the Fourth

Amendment.” holding majority

The is: “. .we hold since two of agents guarded, could have smelling of moonshine

while the third obtained a warrant significant

without risk of loss evi- dence, the search and seizure

case violated the fourth amendment

and that the fruits thereof should suppressed.” (Pp.

have been 1103-

1104). majority, then, suggests that two stayed should have on the property, defendant’s warrant, without a search guarded truck, obvious- ly preventing sole exercising from dominion over it—a seizure context.

my opinion, this seizure the whole truck, awaiting while the return agent warrant, third with the search unjustifiable

would have been at least as looking through door, the crack in the disapproved.

which has been protects

Fourth Amendment “unreasonable and seizures.”

Holding looking the search unlawful,

would when the seizure of construing not,

the whole truck would

the Fourth Amendment with critical

niceness to I not accede.

Case Details

Case Name: United States v. William Garland Bradshaw

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 9, 1974

Citation: 490 F.2d 1097

Docket Number: 73-1803

Court Abbreviation: 4th Cir.