Appendix — Brookins v. United States

INDEX

Material Excerpts from Testimony of George A. Nowicki. . 1

Material Excerpts from Testimony of Edward Brookins. . . 9

Judgment on Petition for Rehearing . . . 2... . 637

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BY: MR. BROWN:

Q: Would you state your full name, please?

A: — A. Nowicki.

Q: You are with the Alcohol and Tobacco Tax”

A: Yes sir, that’s correct.

Q: Now, were you participating in an investigation

concerning an illegal distillery on the 30th. day of

January 1968 over in Clay County, Georgia?

A: Yes, | was. (R. 14).

Q: All rght, tell us if you will what you wera doing

over in Clay County that morning? Were you look-

ing for a still or what were you doing?

A: That morning we were looking for a distillery be-

hind a residence in the southern part of Clay County.

Q: Had you ever heard the name of Ed Brookins be-

fore you went to Clay County?

A: Yes 1 had many times.

Q: What was his reputation. with the Alcohol and

Tobacco Tax? (RR. 15).

Q: Let me ask my question again: Did you know of

any cases which had been made against Ed

Brookins in the past by the Alcohol and Tobacco

Tax agents in the Middle District of Georgia?

A: Yes, I did.

Q: And was he what was known as a major violator?

MATERIAL EXCERPTS FROM TESTIMONY OF

GEORGE A NOWICKI

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Yes,he was; he was a major violator in our post of

duty.

Did you locate an illegal distillery behind his house

or in the general Vicinity of his house?

Yes,wedid. ,

Was someone working that distillery when you

found it?

Yes sir.

And that was the co-defendant who has pled guilty

in this case, James Johnson, is that right? (R. 17).

Chartie Johnson.

Now, did you station yourself somewhere to watch

that distillery”

Yes, | did.

And why did you do that rather than goingrpn in

and arresting Johnson?

We were expecting the owner of the distillery to

come down to it.

~ How far were you from the distillery watching it?

Approximately 25 yards.

From where you were positioned, could you see

the distillery?

Yes, | could.

Was it in operation?

Yes, it was.

Did it have any odor?

There was an odor of mash. (R. 18).

All right now, I'll ask you if you saw the defend-

ant, Ed Brookins, while you were observing this

still?

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Yes, | did,

_ And where did you see him?

I saw him walking through the woods.

Now, tell us where he was walking in relation to

the still and in relation to where you were?

| He was walking straight towards the distillery and

he was coming, | was down beside the still - and he

was coming into it from up‘ubove me. .

All right. what did you do when you saw Ed

Brookins?

I let him keep walking toward me.

Could you tell whether or not he saw you?

. He did and then he stopped walking.

How faraway from you was he before he saw

you”?

Approximately 10 yards, (R. 19),

When he stopped and looked at you, what did you

do”

| approached him,

And why did you approach him?

With the intention to,arrest him.

What did you intend to arrest him for?

Possessing an unregistered distillery.

Now, you walked up to Brooks; what did you say

to him or did you see him with anything? (R. 20),

He was carrying two paper bugs.

Did you take a look at those paper sacks?

Yes, | did.

And what did you find?

In one paper sack,-1 found 25 corks und a severed

jug spout, plastic jug spout,

All right, what about the other sack”

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I found a lunch.

And what did you do after O'Steen got to where

you were standing?

Prior to the arrival of Mr. O’Steen, | placed Mr.

Brookins under arrest; and when Mr. O’Steen came

up, (R. 21), I told him what we had there.

Had Brookins said anything to you at this —

No. he hadn't.

All right, after you got into the still yard or on

down closer to where the still was located what

did you do? 7

Mr. Brookins and myself walked into the still yard

and saw Charlie Johnson in custody of Special

Investigator O’Steen. (R. 22).

Now, Officer Nowicki, what time of day was it

that you first observed the still?

It was approximately 2:00 P.M. in the afternoon

And about what time was it that you observed Mr.

Brookins coming down toward the woods?

About 20 minutes afterwards.

How far from the still would you estimate his

residence to be?

Approximately 500 yards.

Did you understand, based on your investigation,

that Mr. Brookins owned a 250 acre farm where

the house was located?

At that time I didn’t.

Did you learn since then?

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Yes sir. (R. 29).

And when you first laid eyes on Mr. Brookins, how

far was he from his house?

He was approximately 450 yards from his house.

(R. 30).

Now, your position again, from your point of sur-

veillance to the still itself, | believe you said was

25 yards?

About 25.

Could you see the still from your position?

Parts of it,

Could Mr. Brookins from wheré you first laid eyes

on him walking towards you, could he see the still?

He could see the top of it or I from that position.

I could see the top of it.

Now, was this a heavy wooded area?

| would say moderately wooded. | |

Heavy enough to block one’s vision if he was 100

yards away?

Yes sir.

’ How about 75 yards.

Possibly.

How about 50 yards?

Possibly (R. 31)

How about 25 yards?

Not totally.

Did you have an arrest warrant that day to arrest

Mr. Brookins?

No,] didn’t.

Did you have a search warrant to seasch him?

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No, | didn’t.

All right, up to the point you saw him coming

down the path, he was carrying two bags, you say?

That's correct.

Now, had you see Mr. Brookins down at the still

site itself, in the still yard?

No, | didn’t.

Had you seen Mr. Brookins haul any material or

(R? 32), anything to the still? ;

No, | did not. |

Did you have any confidential information from

any other officer that they had seen him working

at the still?

That they had seen him?

Yes?

No, I didn’t. .

* (R. 33)

So, you saw a man that you knew to own that

farm, did you know Mr. Brookins owned that farm

before you arrested him? :

I had heard that he did.

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Well, what did you say to him?

| asked him his name.

And what did he tell you?

- He said Ed Brookins.

(R. 35). i

So, you learned his name and what did you do |.

then?

1 asked him if 1 could 1odk in his sacks? -

And what did he say to that?

He gave me the sack.

And you looked in it?

Yes sir. ,

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And what did you see, stoppers?

The stoppers.

And the lunch?

And the lunch, that’s correct.

Were you in uniform?

We don't wear uniforms.

Well, what did you have on?

Green.

And that’s customarily worn by Alcohol and Y

Tobacco Tax people?

Correct. :

Did you have a gun on you plainly where you could

see it?

Hy

That's correct.

AR. 36).

Generally speaking, he s was a violator?

That he had been arrested tos liquor law violations.

Was he convicted, according to your information? _

At the time I didn’t know.

So, you knew him as a man that had been arrested;

did you know when he had beew arrested”

I had heard that he had been arrested.

_ At that time you had heard it?

At that time | had heard he had been arrested back

two. years ago.

At that time had you heard how many years prior

to(R. 37), that time it was that he was arrested?

No, I had not.

You had heard he had been arrested several times? -

No, several times, from several people | had heard

that Mr. Brookins had been arrested in the past for

liquor law violations.

So, that’s the reputation that’ you relied on tos stop |

the man that day and arrest him?

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A:

That combined with a still in operation right in

front of both of us. (R. 38). A

To save my having to read this whole matter, Mr.

Officer, would you point out in your statement

where it relates, if it does, to what you did when

you first saw Mr. Brookins a aes statement to

witness)? ;

“At this time i went to Seockins and examined the

paper sack.”

All right, show me on the statement where it is’

Pointing on statement. .

And is this part of the statement that you were just

now referring to, * “When he.reached a point about

25 yards from the still, Brookins looked in my di-_ -

rection and stopped walking. At this time | went to

Brookins, examined the paper sack” °- is that the

only reference in. your report to what happened

when you first saw Brookins? |

(Witness examining statement futher ... That is.

There is no other reference?

No. (R. 39).

MATERIAL EXCERPTS FROM TESTIMONY OF

MR. EDWARD BROOKINS

‘BY: MR! TONEY:

Q: Would you state your name, please? .

A: Ed Brookins.

Q: On Jenuary 30 of this year; do you remember the

incident the officer testified about?

Yes sir. |

Were you arrested on that day? (R’ 44).

A: Yes sir.

Q: All right, about what time?

‘A: + would say, I can’t say right exactly but I'd say

_ ground 1:15, between 1:00 and 1:30.

Q: All right, explain to the Court just what you did

that day leading up to that arrest?

A: Starting that morning?

Q: Yes sir; | mean don't go into many details, just hit

the highlights ”

A: Well, that morning when I started off. I went to

Blakely, Georgia and | picked up Raymond Smith.

He runs a shop in Early County, Blakely. I brought

him back to the house and he started to working

on the truck.

“oS 69

A: And I got my enctat and plowed, got my tractor

and plows and went to the field and | plowed until:

10 minutes after 12:00. :

(R. 45).

A: At 10 minutes after 12:00 I left the field 1.:d came

to the house and | went to town to pick up my

boys. Both of them gets out « school every day at

dinner time.

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Let me stop you there, up to this point had you

heard the noise from any still anywhere in that area

anywhere?

No sir, | couldn't have. It's a diesel tractor and it

nukes a lot of racket.

And how tar from the still that you later learned, a

still later that when you were arrested, how far

were you plowing from that still area or the still

yard”

I would guess it's close to $ of 600 yards.

(R. 40).

How tar would you estimate that you were piling

this brush from where you later learned ther was

a still?

Well, I've got two gates there and I'd say about 100

yards apart and | was at the first gate; and from

the second gate to where this revenue man was

standing | would say it was around 150 yards from

where | first seen him,

All right, from where you were piling the brush,

you were 150 yards to where you saw the Revenue

agent?

No sir.

Say that again?

1 would say, it’s about frqm where | was piling the

brush to where I seen the Revenue Agent, it would

be about (R. 47), 250 yards.

Now, at the time you heard the noise where you

were piling this brush, could you see the Agent

from that point?

No sir.

Wiiy did you go down in that direction?

| heard a motor running.

What did the motor sound like to you?

It just sounded like an engine running and a blow-

ing fuss.

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All right, go ahead and tell us what happened?

There's a road that goes all the way through and

1 walked right straight on down the road and | got,

to the second gate, which was about 150 yards from

there to where the Revenue Agent was standing

approximately 10 feet in the edge of the woods.

All right now, did you approach the Revenue agent?

Yes sir, | did and I called to him.

You called to him, what did you say?

I suid “Hey there, fellow, what's going on?”

And what did he say?

He walked on up to me and he said “Ain't that a

liquor still over there?” T said “I don't know what

it is.” CR. 48). T said “That's my business down

here though, | heard that fuss.” He said “What's

your name?” | said “Ed Brookins.” He said “Yeah,

that’s a liquor still’, said “You're under arrest, sit

down,”

You were later taken to the still site?

Yes sir.

Was this still on your land?

Yes sir, 191 yards from where he arrested me.

Now, down at the still site that he took you to later,

could you look at that and really tell one way or

another whether that was on your property or not?

It’s right on the back side of our farm.

GF”

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United States Court of Appeals

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No. 27067

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD BROOKINS,

Defendant-Appeliant.

Appeal from the United States District Court for the

Middle District of Georgia

(March 6, 1970)

¢

Betore RIVES, COLEMAN, and MORGAN,

Circuit Judges.

COLEMAN, Circuit Judge: Edward Brookins was

indicted for and found guilty of violating 26 U.S.C.

£$5179(a) and 5601(a) (possession of a still and distill-

ing apparatus set up); 5173 and 560l(a) (carrying on

the business of a distiller without bond); 5602 (carrying

on the business of a distiller with intent to defraud

the government of taxes); 5180 and 5681(c) (working

at a distillery upon which no sign was placed and kept);

2 U.S.A. v. EDWARD BROOKINS

and 5205(a) (2) and 5604(a) (possession of distilled

spirits in containers which failed to bear the required

internal revenue stamp). The case was tried to the

District Judge, without a jury. We reverse.

An agent for the Alcohol and Tobacco Tax Division.

testified that on January 30, 1968, he, with two other

agents, was Icoking for a whiskey still in the woods,

near a creek, about five hundred yards from the Brook-

ins residence. He knew Brookins on sight, and in the

hearing onthe motion to suppress Stated, over objec-

tion, that he knew Brookins to be a “major violator”

of the liquor laws in that area. This knowledge seems

to have heen supported by at least one fairly recent

conviction for such an offense, as well as upon several

arrests which contributed to the unfavorable reputation

of the appellant as to such activities. Two of the of-

ficers located the still and observed an individual (not

Brookins) working thereat. The stil] was running and

its water pump could be heard from a distance of

fifty or sixty yards. The odor of mash was detectable

for a considerable distance.

The officer posted himself at a point in the edge

of the woods and adjacent to a cultivated field, ap-

proximately twenty-five yards from the still. From

this observation point Brookins was seen walking

through the woods, headed in a straight line for the

still. He was currying two small paper bags. He stopped

when he saw the agent and was forthwith arrested.

One of the paper bags, whether seized before or after

the formalities, contained twenty-five corks and a

plastic jug spout. The corks found in the bag fitted

4

U.S.A. v. EDWARD BROOKINS 3

plastic jugs found at the still site. Eighteen of those

jugs had no corks. The second bag contained a lunch,

After the arrest of Brookins the other officer went

to the still and arrested its operator, who pleaded guilty

to the indictment returned against him.

Brookins was conducted to the still yard and given

a complete Miranda warning, after which he stated

to the officers that he was glad it was all over, that

he could not sleep the previous night for fear of impend-

ing detection, He admitted that he made the still and

its condenser and that he was its owner. He further

stated that this was the third time the still had op-

erated. On this particular day approximately eighty

gallons of whiskey had been run off. Brookins said

that the run had been delayed for about two weeks,

due to the delaying effects of cool weather on the fer-

mentation of the mash. _

The exact circumstances of the arrest can best be

described by quoting the testimony of the arresting

agent. .

“Q All right now, I'll ask you if you saw the

Defendant, Ed Brookins, while you were

observing this still?

Yes, I did. —

And where did you see him?

I saw him walking through the woods.

Now, tell us where he was walking in rela-

tion to the still and in relation to where you

were?

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U.S.A. v. EDWARD BROOKINS

He was walking straight towards the dis-

tillery and he was coming — I was down

beside the still — and he was coming into

it from up above me.

Was he walking anywhere close to you or

coming in the direction where you were?

Yes, he would have passed right by me.

All right, what did you do when you saw Ed

Brookins?

I let him keep walking toward me.

Could you tell whether or not he saw you?

He did and then he stopped walking.

How far away from you was he before he

saw your

Approximately 10 yards.

About 10 yards?

Yes sir.

And was that on a line with the distillery?

Right; that was on line with the distillery

and I was down below him.

If he had walked in a straight line, would

he have gone by the distillery or in the

yard, or where would he have gone?

He would have walked in the stil] yard.

When ‘he stopped and looked at you, what

did you do?

I approached him.

And why did you approach him?

With the intention to arrest him.

What did you intend to arrest him for?

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. US.A. v. EDWARD BROOKINS

Possessing an unregistered distillery.”

{Emphasis supplied].'

All right, you knew his house was nearby,

did you not?

Yes, I did.

And you knew his reputation for being in

the whiskey business, didn't you?

Yes, I did.

And you state you could hear the still in

operation some 50 yards away when you

came up on it?

That is correct.

Now, you walked up to Brookins; what did

you say to him or did you see him with

anything?

He was carrying two paper bags.

Two paper sacks?

That's correct.”

Brookins testified that he was arrested at a point

which was 191 yards from the still and also denied

making the incriminating statements attributed to him

by the arresting officer.

Brookins contended in the court below, and argues

here, that the arrest was without probable cause and

therefore unlawful, with the corresponding result that

tUnder the cirCumstances as then existing this was obviously the

only possible basis for the arrest. Prior thereto there was

nothing to show that Brookins was carrying’on the business

of a distiller or working at a distillery or in possession of

distilled spirits. An unidentified person was actively engaged

in these activities but he had not been arrested and there

was then no known connection between him and Brookins.

6 U.S.A. v. EDWARD BROOKINS

his incriminating statements were inadmissible, Wong

Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d

441 (1963).

Obviously, therefore, the crucial issue is ‘whether

there was probable cause for the arrest.

~ In Henry v. United States, 361 U.S. 98, 102, 80 S.Ct.

168, 4 L.Ed.2d 134 (1959), the Supreme Court spoke

“as follows:

“Evidence required to establish guilt is not

necessary. Brinegar v. United States, 338 U.S.

160; Draper v. United States, 358 U.S. 307. On

the other hand, good faith~on the part of the

arresting officers is not enough. Probable

Cause exists if the facts and circumstances

known to the officer warrant a prudent man in

believing that the offense has been committed.

Stacey v. Emery, 97 US. 642, 645. And see Di-

rector General v. Kastenbaum, 263 U.S. 25, 28;

United States v. Di Re, supra, at 592; Gior-

dencllo v. United States, supra, at 486. It is

important, we think, that this requirement be

strictly enforced, for the Standard set by, the

Constitution protects both the officer and the

citizen. If the officer acts with probable cause,

he is protected even though it turns out that

the citizen is innocent. Carroll v. United States,

267 U.S. 132, 156. And while a search without a

warrant is, within limits, permissible if in .i-

dent to a lawful arrest, if an arrest without a

warrant is to support an incidental search, it

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U.S.A. v. EDWARD BROOKINS 7

must be made with probable cause, Carroll v.

United States, supra, at 155-156. This immunity

of officers cannot fairly be enlarged without

jeopardizing the privacy or security of the citi-

| zen, We turn then-to the question whether prue

. dent men in the shoes of these officers (Brine-

gar ov. United States, supra, at 175) would have

seen enough to permit them to beheve that pe-

titioner was violating or had violated the law.

We think not.”

In the same case, at another point, 361 US. 101,

the Court said:

“That philosophy later. was reflected in the °

Fourth Amendment. And as the early Ameri-

can decisions both before arid immediately af-

ter its adoption show, common rumor or re-

port, suspieton, or even ‘strong reason to sus-

pect’ was not adequate to support a warrant

for arrest. And that principle has survived to

‘this day. See United States v. Di Re, 332 US.

581, 593-595; Johnson v. United States, 333 U.S.

10, 13-15; Giordenello v. United States, 357 U.S.

480, 486. Its high water was Johnson v. United

States, supra, where the smell of opium com-

ing from a closed room was not enough to sup-

port an arrest and search without a warrant.

It was against this background that two schol-

ars recently wrote, ‘Arrest on mere suspicion

collides violently with the basic human right

of liberty’.”

7]

8 U.S.A. v. EDWARD BROOKINS

This Court has. consistently followed the principles

enunciated in Henry, Wooten v. United States, 5 Cir.,

* 1967, 380 F.2d 230, cert. denied 389 U.S. 942; Nicholson

v. United States, 5 Cir., 1966, 355 F.2d 80, cert. denied

384 U.S. 974; Miller v:; United States, 5 Cir., 1966, 356

F.2d 62, cert. denied 384 U.S. 912. _ .

Of course, an arrest is not justified by what the

subsequent search discloses, Henry v. United States,

supra, Johnson v. United States, 333 U.S. 10, 15.

Stated in elementary terms, the rule is that in de-

termining the validity of an arrest on probable cause,

the Court is dealing with “probability” and not with

the “certainty” that an offense has been or is being

committed, Clay v. United States, 8 Cir., 1968, 394 F.2d

281, and each case turns largely on the facts existing.

at the time of the arrest.

What were the facts known to the officer at the mo-

ment he arrested Brookins? He knew that there was

a still in operation within five hundred yards of the

Brookins home. He knew that at that very moment

an unidentified person [not Brookins] was operating

the still. There was a field road which began at the

Brookins house and ended at the still, although portions

of it had been plowed up with a farm disc harrow.

The officer saw someone discing the rather large field.

He knew that Brookins, within the fairly recent past,

had been convicted of a liquor violation and had been

charged with other violations. He had never seen

Brookins at the still ngr had he received credible infor-

mation from a reliable source that Brookins had any

20

U.S.A. v. EDWARD BROOKINS 9

connection with the still. He saw Brookins approaching

the still yard but he did not know what he had |

the paper bags. He simply arrested Brookins on sight,

but at a time when he was directly approaching the

still at a distance of twenty-five yards. He testified

specifically that he arrested the appellant for I cecal

ing an unregistered distillery”.

That raises the next question, and a very difficult

one: At the immediate time of arrest, was there prob-

able cause for a prudent man “in the shoes of the

arresting officer” to believe that Brookins was guilty

of possessing the still?

In McFarland v. United States, 5 Cir., 1960, 273 F.2d

417, this Court discusses the elements essential to the

possession of an‘unlawful still. We defined such pos-

session as follows:

“Possession of an unlawful still means that

the defendant must have some dominion over

the property, or some extrinsic circumstances

_ that gives him the right to possess which in-

cludes control. It means having, holding or de-

tention of property in one’s own power or com-

mand. Ownership, whether rightful or wrong-

ful, is not necessary to establish possession.

"Possession may be defined as having person-

al charge of, or exercising the rights of man-

agement or control over the property in ques-

tion. Mere presence at the scene of an unlawful

distillery with nothing more doesn’t constitute

possession.” :

10 U.S.A. v. EDWARD BROOKINS -

_ The opinion [Judges Tuttle, Brown, and Wisdon

went on to say:

“There is no doubt that mere presence at a.

Still is not enough in itself to ‘Constitute posses-

sion of the still.” |

The opinion contains a careful analysis of our opinion

‘in Vick v. United States, 5 Cir., 1954, 216 F.2d 228, >

in’ which we directed the acquittal of a defendant in a

4 possession case who was sitting on the ground about |

ten or fifteen feet from.the distillery and attempted

to run away from the officers, ‘In Vick it had. been

held that mere presence at or near an unregistered

distillery is not sufficient to Sustain a conviction. We

pointed out in McFarland that Vick was not working

around the still, had never been observed at the stil]

prior to the raid, there was no evidence that Vick

knew anything about the operation of the still, and

the jury could well have believed [although it did

not] Vick’s explanation of his presence at the still:

It was further pointed out that Vick’s presence did

not contribute to the Possession or operation-of the

still.

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U.S.A. v. EDWARD BROOKINS 11

In the present case, however, nothing was present

which was known to have been used by Brookins.

Twenty-two years ago this Court decided Matthews

v. Untied States, 5 Cir., 1947, 177 F.2d 278, | Judges

Hutcheson, McCord, and Sibley]. One of the appellants

walked down a path toward the distillery and was ar-

rested thirty or forty yards from it. He was carrying

a paste-board box containing groceries. He was never

‘shown to have been present at the distillery until ar-

rested and taken there by the officers. These circum-

stances were held as a matter of law to be insufficient

to show that the accused was in possession of the still

or carried on the business of @distiller, with or without

intent to defraud the United States, or that he worked

at the still.

We are reminded, as so often held, Henry v. United

States, supra, that the evidence required to support

probable cause need not rise to that degree necessary

to support a guilty verdict. That, however, does not

answer the problem in this case. If proof of mere pres-

ence at a still, or approaching near unto it on a well

defined path, cannot prove the crime then, by the same

rexsoning, how can it raise the probability, in the ab-

sence of anything else, that one only approaching is

in possession of the still?

In Surrett v. United States [No. 26,675, January

26, 1970] _.. F.2d _ __, this Court affirmed a convic-

tion for possessing an unregistered distillery. When

the officers approached the still they saw the defendant

seated in a pick-up truck, which contained 300 gallons

23

12° U.S.A. v. EDWARD BROOKINS

of whiskey in full view. The truck was stuck in the

sand and the defendant was “rocking” it, trying to

free it. The truck was about ten feet from 127 barrels

of mash. The still, although not running, was hot. It

was held that inferences to be drawn from the evidence

warranted the conviction. Obviously, the appellant was

more than merely present.

Events taking place after the arrest, and under the

compulsion of the arrest, proved Brookins guilty as

charged in the indictment. The difficulty for the prose-

Cution is that the law, which denounces the crime,

also prescribes, in constitutional! dimensions, the rules

for arresting individuals without warrants. We are con-

fronted with the admonition of the Supreme Court in

Henry, supra, that

“It is better, so the Fourth Amendment

teaches, that the guilty sometimes go free than

that citizens be subject to easy arrest.”

Certainly, the arresting officer had “strong reason

to suspect” that Brookins possessed the still, but under

the teachings of Henry that was not enough.

We are compelled to hold that this arrest was without

probable cause.

It therefore follows that the confessions obtained pur-

Suant to the arrest were inadmissible and the proof

was insufficient to establish guilt of the offenses

charged in the indictment, Wong Sun v. United States,

supra.

7 ~~ eee - »

gE re

24

U.S.A. v. EDWARD BROOKINS 13

The judgment of conviction will be reversed and the

appellant discharged.

REVERSED.

RIVES, Circuit Judge, specially concurring:

A careful exanunation of the record convinces me

(hat the seizure of the two paper sacks from Brookins

» eceded his arrest Nowiehs approached Brookins with

the antention to aerest him for possessing an unregis

tered distillery. However, befoce telling: Brookins that

he was under arrest, Nowicki asked him his name

and he replied Ed Brookins. Nowicki then asked Brook-

ins if he could look in the two paper sacks he was

carrying and Brookins gave him the sacks. In one

paper sack he found 25 corks and a severed plastic

jug spout andin the other he found a lunch Nowicki

then placed Brookins under arrest and signaled to his

fellow officers. That much clearly appears at the bot-

hom oof page 21 and on pages 35 and 36 of the record.

There is, and can be, no contention that Brookins

urrendered the two paper sacks and their contents

voluntarily, for Nowicki was in the garb of an officer

and was visibly armed. Brookins’ confession came af-

ter, and was in all probability induced by, the discovery

of the contents of the two sacks.

Nowicki acted in an emergency. If he had allowed

Brookins to continue on directly to the still, he could

reasonably apprehend that the carefully planned sur-

veillance of the still would be frustrated, the operator

a

25

14 U.S.A. v. EDWARD BROOKINS

of the still might be warned and might possibly escape,

and evidence might be destroyed. Nowicki was justified

in stopping Brookins to avoid interference with the

raid and with the arrest of the operator of the still.

Was he justified further in seizing the two puper

/ sacks and their contents? On this point we do not write

ona clean slate, The Supreme Court has recently stated

in Sibron v, New York, 1968, 392 U.S. 40, 63,‘that “It

is axiomatic that an incident search may not precede

an oetrost and serve os part of its justification.” Again

Inthe companion Perers case, the Court repeated “* * *

asearch meiental to a liwful arrest may not precede

the arrest and serve as part of its justification.” 892

US. at 67 In Chimel v. California, 1969, 895 U.S. 72,

762, the Court pointedly drew the comparison between

the two “stop-and-frisk” cases, Terry v. Ohio, 1968,

“92 US. 1, 19, 29, and Sibron vo New York, 1968, 392

U.S. 40, and pointed out that a protective search for

Weapons might be justified, as in Terry, while a search

for evidence not limited to th objective of protection

would have to be disapprovec, as in Sibron,

It therefore appears that the seizure of the two paper

sacks cannot be justified as incidental to Brookins’

arrest for possessing an unregistered distillery because

the seizure preceded the arrest and served as part

of its justification, Sibron and Peters. supra, 392 US.

63, 67. The seizure of the sacks cannot be’ justified

as incidental to Nowicki's stopping Brookins to prevent

him from frustrating the raid and interfering with the

arrest of the operator of the still (assuming that he

was stopped for such purpose), because the seizure”

26

U.S.A. v. EDWARD BROOKINS (15

was made in order to find evidence and was not limited

to the objective of protection.

True, it would appear that Nowicki acted in the emer-

gency which confronted him as a reasonably prudent

officer should act, and with a minimum of intrusion

upon Brookins’ privacy or invasion of his personal se-

curity, If we wrote upon a clean slate, I would say

that under all of the circumstances there was no un-

reasonable seizure violative of the Fourth Amendment.

Under the controlling authorities, however, I am forced

to the conclusion that the evidence obtained as a result

of the seizure was inadmissible, and IT reluctantly con-

cur in the judgment of reversal.

MORGAN, Circuit Judge.

I concur in the reversal of the conviction for the

reasons set forth in Judge Rives’ special concurring

opinion,

Adm. Office, U.SCourts—Scoficlds' Quality Printers, Inc., N. O., La.

o

27

&

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 27067

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD BROOKINS,

Defendant-Appellant.

Appeal from the United States District Court for the

Middle District of Georgia

(October 22, 1970)

ON PETITION FOR REHEARING

Before RIVES, CQLEMAN and MORGAN,

*

Circuit Judges. §

RIVES, Circuit Judge: Our mistake on original

hearing' was in treating the offense for which the ap-

pellant Brookins was arrested as possessitfg an un-

registered still proscribed by subsection (a) (1) of

‘Opinion reported, 423 F.2d 463.

oe _ rr INET 2 POE

2 U.S.A. v. EDWARD BROOKINS

Title 26, section 5601,. U.S.C.,2 rather than that of

carrying on the business of a distiller proscribed by

subsection (a) (4) of the same section 5601.3 The two

crimes appear closely related, but there is a critical

difference. As to carrying on the business of a distiller,

the Supreme Court sustainéd the constitutionality of the

_____.___ presumption created by a 1958 Act of Congress now

appearing as subsection (b) (2) of section 5601, upon

the rationale quoted in the margin.* Contrariwise, as

2“(a) Offenses. — Any person who —

“(1) Unregistered stills. — has in his possession or custody,

or under his control, any still or distilling apparatus set up

which is not registered, as required by section 5179(a) * * *.”

3“‘(a) Offenses. — Any person who —

“@eeees#e#?s .

(4) Failure or refusal of distiller or rectifier to give

bond. — carries on the business of a distiller or rectifier with-

out having given bond as required by law ***.”

4“(b) Presumptions. —

eeee#es#e?#e#

“(2) Failure or refusal of distiller or rectifier to give

bond. — Whenever on trial for violation of subsection (a) (4)

* the defendant is shown to have been at the site or place where,

and at the time when, the business of a distiller or rectifier

was so engaged in or carried ou, such presence of the defendant

shall be deemed sufficient evidence to authorize conviction,

unless the defendant explains such presence to the satisfac-

tion of the jury (or of the court when tried without jury).”

8“The rationality of the inference provided by §5601 (b) (2) must

be viewed in the context of the broad substantive offense it

supports. Section 5601 (a) (4) prescribes ‘carrying on’ the

enterprise of illegal distillation — an offense which is one of

the most comprehensive of the criminal statutes designed to

stop the production and sale of untaxed liquor. See Vukich

v. United States, 28 F.2d 666, 669 (C.A. 9th Cir.). Those who

aid and abet the enterpriser come within the statute’s reach

by virtue of 18 U.S.C. § 2 (1958 ed.). United States v. Giuliano,

263 F.2d 582 (C.A. 3d Cir.). Suppliers, haulers, and a host of

other functionaries have been convicted under the statute. See

United States v. Pritchard, 55 F.Supp. 201 (D.C.W.DS.C.),

aff'd 145 F.2d 240 (C.A. 4th Cir.) Congress was undoubtedly

27

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 27067

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD BROOKINS,

Defendant-Appellant.

Appeal from the United States District Court for the

Middle District of Georgia

(October 22, 1970)

ON PETITION FOR REHEARING

Before RIVES, COLEMAN and MORGAN,

Circuit Judges.

RIVES, Circuit Judge: Our mistake on original

hearing' was in treating the offense for which the ap-

pellant Brookins was arrested as possessing an un-

registered still proscribed by subsection (a) (1) of

1Opinion reported, 423 F.2d 463.

U.S.A. v. EDWARD BROOKINS 3

to possessing an unregistered still, the Supreme Court

held unconstitutional a like presumption created by

the same 1958 Act now appearing as subsection (b)

(1) of section 5601. We quote in the margin part of

the opinion which points out the essential difference

between the two offenses.”

’ aware that manufacturers of illegal liquor are notorious for

the deftness with which they locate arcane spots for plying

their trade. Legislative recognition of the implications of

seclusion only confirms what the folklore teaches — that

strangers to the illegal business rarely penetrate the curtain

of secrecy.6 We therefore hold that §5601 (b) (2) satisfies the

test of Tot v. United States, supra. [319 U.S. 463].

“6 Very few of the illicit distillers allow any one,

except -their most intimate friends, to approach their

distilleries. Such places, as a rule, are forbidden

ground, for the reason that when the. violators are

arrested it is a difficult matter to prove them guilty,

when so few persons have ever seen them operating

their distilleries.’ Atkinson, After the Moonshiners,

By One of the Raiders, at p. 23.

“The first requisite for an illicit still is a good

stream of cool water .

“*The next requisite is aiden. It must be placed

where no one ever travels, or even thinks of traveling.’

Id., at p. 18.”

United States v. Gainey, 1965, 380 US. 63, 67, 68, & n. 6.

6“(b) Presumptions. —

“(1) Unregistered stills. — Whenever on trial for viola-

tion of subsection (a) (1) the defendant is shown to have been

at the site or place where, and at the time when, a still or

distilling apparatus was set up without having been registered,

such presence of the defendant shall be deemed sufficient evi-

dence to authorize conviction, unless the defendant explains

such presence to the satisfaction of the jury (or of the court

when tried without jury).”

7“Just last Term, in United States v. Gainey, 380 U.S. 63, the Court

passed upon the validity of a companion section to § 5601 (b) (1)

of the Internal Revenue Code. The Constitutionality of the

legislation was held to depend upon the ‘rationality of the

connection “between the facts proved and the ultimate fact

presumed.”’ 380 U.S., at 66. Tested by this rule, the Court

er eT gaits oe et tel bie

wee

ORE POLI E TS

le oe ane

‘S

30

4 U.S.A. v. EDWARD BROOKINS

With some exceptions to be noted, the facts are

fully and accurately stated in Judge Coleman’s original

Opinion (423 F. 2d at 464 and 465) and in the writer’s

special concurrence (423 F: 2d at 468). An inaccurate

statement occurs on p. 467, that Nowicki, the arresting

officer, “knew that Brookins, within the fairly recent

past, had been convicted of a liquor violation” and a

similar mistake occurs on p. 464. The facts are that

Brookins had been so convicted in 1963, some five

years prior to his arrest (R. p. 56), but Nowicki ad-

mitted that at the time of arrest he did not know of

Brookins’ conviction (R. p. 37).

In the original opinion we failed to call attention to

the following part of Nowicki’s testimony:

“Q. Now, did you station yourself somewhere

to watch that distillery?.

sustained the provision of 26 U.S.C. § 5601 (b) (2) declaring

presence at a still to be sufficient evidence to authorize con-

viction under 26 U.S.C. § 5601 (a) (4) for carrying on the

business of the distillery without giving the required bond.

Noting that almost anyone at the site of a secret still could

reasonably be said to be carrying on the business or aiding

or abetting it and that Congress had accorded the evidence

of presence only its ‘natural probative force,’ the Court sus-

tained the presumption.

“This case is markedly different from Gainey, supra. Con-

gress has chosen in the relevant provisions of the Internal

Revenue Code to focus upon various phases and aspects of

the distilling business and to make each of them a separate

crime. Count 1 of this indictment charges ‘possession, custody

and...control’ of an illegal still as a separate, distinct of-

fense. Section 5601 (a) (1) obviously has a much narrower

coverage than has § 5601 (a) (4) with its sweeping prohibition

of carrying on a distilling business.”

United States v. Romano, 1965, 382 U.S. 136, 139, 140.

Matte. SE

“3

U.S.A. v. EDWARD BROOKINS 5

“A. Yes, I did.

“Q. And why did you do that rather than go-

ing on in and arresting Johnson?

“A. We were expecting the owner of the dis-

tillery to come down to it.” (R. p. 18.)

Of more significance is the mistaken emphasis

(423 F.2d at 465) placed upon a part of Nowicki’s

testimony, and the erroneous conclusion drawn in the

attached footnote:

“'Q. And.why did you approach him?

With the intention to arrest him. 7

What did you intend to. arrest him for?

Possessing an _ unregistere distillery.’

[Emphasis supplied].'

> © >

“'Under the circumstances as then existing

this was obviously the only possible basis

for the arrest. Prior thereto there was noth-

ing to show that Brookins was carrying on

the business of a distiller or working at a

distillery or in possession of distilled spir-

its. An unidentified person was actively

engaged in these activities but he had not

been arrested and there was then no known

connection between him and Brookins.”

(423 F.2d at 465 & n. 1.)

Actually we find no testimony that Nowicki ever

disclosed to Brookins his intention to arrest him for

possessing an unregistered still. Nowicki merely testi-

fied that “I placed Brookins under arrest” (R. p. 21)

after finding the 25 corks, the severed jug spout,

Hea SE Det ey ,

RG aon 7S a

\~

“a >

. ‘

$2

a

J USA. v. EDWARD BROOKINS

and the lunch in the two peer sacks wich Brookins

was carrying, and befere the arrival of his fellow of-

The conciusion drawn in the heretofore quoted foot-

note td the original opinion (423 F.2d 485, n. 1) that

possessing an unregistered still was “the only possibile

basis for the arrest” is a mistake. Newicki had prob-

able cause to arrest Brookins for carrying cu <*e busi-

‘ness of a distiller. At the time of the arrest, Nowicki

and Brookins were about 25 yards from the still, wit-

nessing it in operation, and smelling the mash. Just

at that time Nowicki had expected the owner to ap-

pear. Brookins was making a beeline for the still. No-

§ 7608 (a) (3) and (4):

“€ 7608. Authority of internal revenue enforce-

ment officers

“(a) Enforcement of subtitle E [Alcohol,

Tobacco and Certain Other Excise Taxes, in-

cluding Chap. 51 §§ 5001-5086) and other laws

- pertaining to liguor, tobacco, and firearms.-

nue officer by whatever term designated, whom

the Secretary or his delegate charges with the

duty of enforcing any of the criminal, seizure,

or forfeiture provisions of subtitle E or of any

» other law of the United States pertaining to

the commodities subject to tax under such

subtitle for the enforcement of which the Secre-

tary or his delegate is responsible, may —

'tGee United States v.

2Of course, aiding and : setting in carrying on the business of ao

distiller would mak Brookins punishable as a principe! 16

*eGee United States v. Wittlejohn, ED.) Y., 1966, 260 F Supp. 278,

Costner, ED. Tenn., 1963, 217 F.Supp. 644,

278.

6a, a. 1.

8 USA. v. EDWARD BROOKINS

. The finding on original hearing of lack of probable

cause for the arrest of Brookins was based on the

view that Nowicki head to have probable cause to ar-

rest Brookins for possessing an unregistered still be-

cause Nowicki testified that such was his intention.

of the still. Thus, probable cause for

independently. of the fruits of the of the two

A.L.R.2d TIS, at 780, et seq.

Rehearing is granted and the judgment of convic-

tion is affirmed.

AFFIRMED.

COLEMAN, Circuit Judge, Dissenting.

I respectfully dissent. The views originally ex-

ees es

The majority adheres to its original view that Brook-

ins could not lawfully have been arrested for the pos-

session of an unregistered still. The ground is shifted

to the entirely new proposition that he could have

\

®.

Y

10 USA. v. EDWARD BROOKINGS |

been lawfully arrested fer carrying on the business

of a distiller. There is no getting around the testimony

of Ure crawed and experienced agent that he arrested

Brookins fer possessing a still, NOT fer carrying on

the business of a distiller i

If, however, a factor which had nothing to do with

the arrest when made is to be injected as a life-saving

\ hypodermic for an invalid arrest, tien I am of the

opinion that there was no probable cause to arrest

Brookins for carrying on the business of a distiller.

Walking through a field with a paper sack, even if

in the direction of the distillery, ic not enough for -

me to hold that there was probable cause for an

arrest carrying on the business of a distiller. And

this is true if, as in this case, there is al-

ready somebody at the distillery and operating it.

My highly esteemed Brethren of the majority say

that “If Eireokins had been arrested at the still itself,

his presence there would have justified his conviction

for carrying on the business of a distiller”. The point

is that he wes not at the still. I am unable to com-

prehend that walking in an open field on one's prop-

erty in the direction of a still can be made legally

synonymous to being present at the still. What Breok-

ins “might do” is not enough. The crucial factor is

what he was actually doing when the officer stopped

tum.

¢

I am compelled to dissent.

Adm. Office. US. Courte—Scofields’ Quality Printers, Inc. N. O.. La.

Z il

“87

UNITED STATES [COURT OF APPRALS

POR THE FIFTH CHROUIT

No. 27087

October Term, 1969

p. C. Dadket Ne Or, $338

UNITED STATES OF AMBRITA,

JUDGMENT ON PETITION FOR REHEARING |

This cause came on to be heard on plaintifl-appelice’s

petiteon for rehearing.

ON CONSIDERATION WHEREOF. it is now here

ordered and adjudged by this Court that the rehearing in

the above casc ts granted and the judgment of conviction

is affirmed in accordance with the opinion of this Court.

, October 22, 1970

Coleman. Circuit Judge. Dissenting.

issued As Mandatc: