In this cause, the defendant was a man of Finnish descent and had constructed a Finnish bathhouse adjacent to his dwelling house upon a small farm in Marquette county, Mich. Without going into extensive detail, we are of the opinion that this bathhouse wаs within the curtilage of the defendant’s home, and thus within the protection of the Constitution of the United States against unreasonable searches and seizures, аnd of section 25, title 2 of the National Prohibition Act (27 USCA § 39). Temperani v. United States, 299 F.365 (C. C. A. 9).
Fоr several months prior to December 15, 1932, federal prohibition agents had rеceived complaints that the defendant was violating the National Prohibitiоn Act. On the morning of that day the officers concealed themselves in the viеinity of defendant’s property and could smell odors of cooking mash. They аlso saw puffs of steam coming out of a vent in the bathhouse and a yellowish spot on the edge of the ravine which later proved to be spent grain. In the afternoon of the same day four of these officers drove upon tho defendant’s premises and parked their automobile in front of the main dwelling house. They had no warrant of any kind. They came simply to search for violations of the law. Having alighted from their ear, one of them went to the south door оf the bathhouse, where he says that he knocked but the door was not opеned. This agent was later joined by the other three, and the officers testify that, after knocking several times at the east door, it was opened by defendаnt. Within the building was a small still and some barrels, kegs, and jugs of finished whisky, all of which were seized. Thе defendant testified that he did pot open the door but that it was broken oрen by the officers. But conceding that it was opened by defendant, there is nо other evidence of consent to the search, and this action would be equally consistent with simple surrender to arrest. We think, therefore, that while therе was evidence of surrender upon the part of the defendant, there was no substantial evidence of waiver of his constitutional rights in view of the burden resting uрon the government to prove this. Cf. Kovach v. United States,
After arrest and indictment a motion to suppress the evidence was duly made and denied. We arе of the opinion that the motion should have been granted. Any search of a private dwelling without a search warrant is at least prima facie unreasonable. Cf. Agnello v. United States,
An attempt is made to justify the search on the ground that defendant was found in the dwelling in the commission of a crime and was then arrested, and that the officers had a right to search his person and premises as an incident to such arrest. This same contention was made in Staker v. United States, supra, and must be here denied for the same reasons there stated. Just as the validity of a search may not be judged by what it brings to light, so the right to search must be decided by the situation as disclosed before the search is made. United States v. Fitzmaurice, 45 F. (2d) 133-135 (C. C. A. 2). At that time the officers had no knowledge of facts whiсh would have justified an arrest or supported a conviction. It was not until they had illegally forced their way upon the premises and into the bathhouse that thе defendant can be said to have been found committing a crime in their presence, and of the knowledge so acquired the government is not permittеd to avail itself.
For the reasons above stated and upon the authority оf the cases cited, to which should be added Bushouse v. United States (C. C. A.)