The opinion
RUDKIN, Circuit Judge.
This is a writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). The legality of an arrest and seizure without warrant is the only question presented for our consideration.
The defendant in error contends that the question is not properly before us, because there was no objection to the testimony when offered, no motion to suppress, and no application for a return of the property seized, before trial. The case was tried in the court below without a jury, with little or no formality; but we think it sufficiently appears from the record that there was an understanding between counsel for both parties that the legality of the arrest and the competency of the testimony should be determined by the court on the trial, together with the merits of the ease, and the court below acted upon that understanding. The question is therefore properly here. Was, then, an arrest without a warrant authorized at the time the arrest was made ?
“If the seizure is merely based upon a suspicion, and the facts are not sufficient to justify an arrest, the subsequent discovery
by an
examination of the evidence, secured by the seizure, that the suspicion was in faet well founded, is not sufficient to make what was unlawful at' its commencement a lawful search. * * * The proper test, supported by the great weight of authority, by which this case should be decided, is: Were the circumstances presented to the officers through the testimony of their senses sufficient to justify them in a good-faith belief that plaintiff in error was in their presence transporting liquor in violation of law or that he had in their presence liquor in his
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possession in violation of law? In other words, was there probable cause for them to so believe, or were the facts sufficient to give rise merely to a suspicion thereof? If the former the arrest was legal and the evidence secured by it admissible. If the latter, the arrest was illegal, and the evidence obtained not admissible.” Garske v. United States, (C. C. A.) 1 F.(2d.) 620, 625.
The officer who made the arrest was the only witness at the trial. He testified that the plaintiff in error parked his car at the curb of one of the public streets of the city of Portland, removed a package from the back part of the car, and started up the street; that the package was not smooth, and from its appearance might contain bottles; that he then placed the plaintiff in error under arrest; that prior to that time he had been informed that the plaintiff in error was a bootlegger, and that the license number of the ear driven by the plaintiff in error had been furnished him, but the source of Ms information was not disclosed in either case; that on another occasion the plaintiff in error had delivered a package at an office building in the city, and that the form of the package indicated that it might contain two bottles, but what the package contained he did not know, nor did he know what the package in this ease contained. Beyond the foregoing, the officer had no knowledge of any kind, and no information from any source, that a crime was being committed in Ms presence. He testified repeatedly that he had no such knowledge, and that he acted on suspicion only. While an officer may arrest without warrant for reasonable cause, he can only act upon evidence; he cannot act upon mere suspicion.
If, instead of arresting the plaintiff in error, the officer had presented all the facts within Ms knowledge and all the information at hand to a magistrate, no magistrate would issue a warrant of arrest .for the plaintiff in error; no magistrate would hold the plaintiff in error to answer for a crime before another tribunal; no grand jury would indict; no court would submit the case to a jury; and, if the officer were sued for false imprisonment, no court would instruct that the arrest was justified, assuming all the foregoing testimony to be true. If we are correct in these conclusions, and we see no escape from them, the arrest was without authority of law, and the property wrongfully seized was not admissible in evidence.
The judgment is therefore reversed, and the case is remanded for a new trial.