Petition for Writ of Certiorari — Lynds v. Ohio

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Supreme Coumt, U.o.

() TLL E D

94 202 JUL 26 19%

OFFICE OF THE CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

SHAD LYNDS, Petitioner

Vv.

STATE OF OHIO, Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF OHIO

CHRISTIAN D. ROLAND

Counsel of Record,

ALAN P. GUSTAFSON

GUSTAFSON & ROLAND

240 North Main

P.O. Box 484

Utica, OH 43080

(614) 892-4444

Attys. for

Petitioner

QUESTION PRESENTED

1. Whether evidence obtained through a

warrantless search of Petitioner’s motor

vehicle was improperly not suppressed

pursuant to the doctrine of Carroll v.

United States, 267 U.S. 132, 45 S.Ct. 280,

69 L.Ed. 543 (1925), where a vehicle was

rendered immobile by an investigating

officer locking Petitioner in a police

cruiser, without arresting him and after

a pat down search, and further where the

keys were in the ignition when the officer

had no reason to fear for her physical

safety and had no reasonable, articulable

suspicion that a crime had been committed

or that Petitioner’s vehicle contained

evidence of a crime prior to conducting a

search of the entire automobile which was

done when the officer had removed the keys

from the ignition.

LIST OF ALL PARTIES TO THE PROCEEDING

The parties to the proceedings below were

the Petitioner, Shad Lynds, Defendant

below, and Respondent, the State of Ohio,

Plaintiff below.

TABLE OF CONTENTS

Questions Presented for Review...........i

Ae Ee, | EP ry Pee ee ee eee Te eee S|

Table of Contents.......... sVeuseeocesohad

TOMES OF BUGNSOTICLES. co cccccccesccccses o0k¥

CU IS aw wh bS Si Ce diveKacestecccenr eed

Jurisdiction....... ata hei ce te sae rrerirerr.

Buemwemenme Gl TO COBO. ccc ccccccccccccesecS

Reasons for Granting the Writ ...........17

CTs <tbdpae ee seb eee eeeecoeces taken?

Appendix A - Decision of the Knox County

Court of Common Pleas on

Motion to Suppress..........39

Appendix B - Opinion of Court of Appeals

for Knox County, Ohio, Fifth

Appellate District..........42

Appendix C - Opinion of the Supreme

ee ae ere

Appendix D - Transcript of Hearing on

Motion to Suppress..........60

Appendix E - Carroll, et al. v. United

States 267 U.S. 132 (1925) .104

iii

TABLE OF AUTHORITIES

Cases

Arnold, III v. State 544 So.2d 294 (Dist.

Ct.App. Fla. 2d Dist. May 26, 1989)...28

California v. Carney 471 U.S. 386

(1985) eee#ee#e? eeee#e#e#2s28#8ftf?#ee#e## eeee#ee#s? e@oeee#*e@ee#ee#e#8e#*# 23

Cardwell _v. Lewis 417 U.S. 583

|. | pee ere rr Ceiada ss 22,23

Carroll v. United States, 267 U.S. 132,

45 S.Ct. 280, 69 L.Ed. 543

JGOESs 444500500004 jak iees 14, 29, 16, 147

ou wwe ots ekehheatéedwedd Seco es

Chambers v. Marone 399 U.S. 42

C1S7Sdcccccevec« e@*eee#*ee#*s?se#@ e*ee*eee#ee#eeesees* 621,224

Commonwealth v. Couture 552 N.E.2d 538,

4G7 MOSS. 176 C1SSE sc ccccccccescscecee 28

Coolidge _v. New Hampshire 403 U.S. 443

Cire > PPeEPETTEe eee*ee#ee#*es#ses? e*ee*e#see#*ee##e#ee#e#e#«# +s * 5a

Jenkins v. State 567 So.2d. 528

¢ Ieee mene ed ra ee at 32

Katz v. United States 389 U.S. 347

($9693 « 00<% SAAS TO SP Oy One ener ve «020,21

Mewbourn Vv. State 570 So.2da 805

(Ala.Cr.App.)(1990). e*eone*ee#ee#ee#eee#efee#ee#e#e#e#e#@# *ee¢ ~26

531 N.E.2d 116, 176

I1l.App.3d 348, 125 I11.Dec. 937

(App. Ct. Ill. 2d Dist. 1988).....30, 31

Robbins v. California, 453 U.S. 420

OT eee ae ae aa ie a a 19

State v. Kock 725 P.2da 1285, 302 Or. 29

gee | rer rs eee ee oe eeee#eee#ees aso

State v. Larocco 794 P.2d 460, (1990)...19

State v. Milliorn 794 S.W.2d 181 (Mo.banc.

ROG it aeheeseenendnvresescuseoeceneesaesee

State v. Schlosser 774 P.2d 1132

Sg POD PR Pe i ee re Pr Pe rrr eee?

State v. Zemunski 423 N.W.2d 443, 228

Neb. 536 (Neb. BOOOR i cccecvecssacecesvcal

U.S. ve. Gooch 6 F.3d 673 (9th Cir.

pe eee ee ee e*eeee @eee*7«e5eee*ee#@ee#ee@e#ee#e#8ee#eeee#ee#e#8e8e 24

United States v. Ross 456 U.S. 798

(1982).. e*eeee@*ee#*ee#ee#e#* -TYUETEEEETECE TLCS CT

titut;

bg ae owie adden

DELS GE BO 6 6s ck eee ches SEV ee ee ieeers 17

Statutes

26 Dames BOORIGN TESTER) 6 0c beck eeewes 4

No.

SHAD LYNLS, Petitioner

vs.

STATE OF OHIO, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OHIO

Petitioner, Shad Lynds, requests that a

Writ of Certiorari issue to review the

judgment and opinion of the Supreme Court

of the State of Ohio entered in this action

on April 27, 1994, which affirmed a

decision of the Court of Appeals for the

Fifth District of Ohio, which itself

affirmed a final judgment of the Court of

Common Pleas for Knox County, Ohio.

OPINIONS BELOW

The opinion of the Supreme Court of the

State of O9hio is reported at 69 Ohio St.3d

102 (1994). (Pet. App. A }. Te

opinion of the Fifth District Court of

Appeals for the State of Ohio is unreported

but is appended hereto. (Pet. App. A

Vs The decision of the trial

court, the Court of Common Pleas for Knox

County, Ohio, is unreported but appended

hereto. (Pet. App. A pe

JURISDICTION

The opinion of the Supreme Court of Ohio

was entered on April 27, 1994. The

jurisdiction of the court rests upon 28

U.S.C. Section 1257(a).

The Fourth Amendment to the Constitution

the United States of America provides:

"The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable

searches and seizures, will not be

violated, and no Warrants’ shall

issue, but upon probable cause,

supported by Oath or affirmation, and

particularly describing the place to

be searched and the persons and

things to be seized."

STATEMENT OF THE CASE

On December 30, 1990, there was a radio

communication by the Police Department

regarding suspicious persons on Oak Street,

Mount Vernon, Ohio. The report indicated

that there were two subjects with a leased

car looking in cars in the area. Officer

Butler of the Mount Vernon, Ohio, Police

Department investigated the area and found

an individual, Jason Blubaugh, by himself

and not carrying anything. Officer Butler

searched Mr. Blubaugh and finding nothing,

released him.

Officer Lemley of the Mount Vernon,

Ohio, Police Department was hiding nearby

and witnessed the verbal exchange between

Officer Butler and Mr. Blubaugh.

Subsequent to the exchange, Officer Lemley

saw Mr. Blubaugh speak to an individual

whom she had seen around the corner.

Officer Lemley saw Mr. Blubaugh continue

on his way and saw the other individual

cross the street, a yard and get into his

car which was legally parked on a nearby

alleyway. When crossing the yard, the

other subject, later identified as Shad

Lynds, the Appellant herein, passed within

100 feet of Officer Lemley and did not

appear to be carrying anything. After

Appellant entered his vehicle, Officer

Lemley saw him reach across the car.

Officer Lemley believed that in _ so

reaching, Appellant was putting something

under the passenger seat. Officer Lemley

quickly approached the vehicle and asked

Appellant to step out of the car and to

present his driver’s license. Appellant

produced his driver’s license and did not

appear to Officer Lemley to have anything

on his person. Officer Lemley asked no

other questions of Appellant and promptly

locked him in the police car. Officer

Lemley stated that she had not placed

Appellant under arrest at that time, nor

charged him with any offense regarding the

vehicle, nor read him his rights. Officer

Lemley had searched Appellant prior to

locking him in the police car. It was

Officer Lemley’s stated intent to hold

Appellant until an investigation was

completed. Appellant was not free to

leave. Officer Lemley called the

prosecuting attorney for advice regarding

a search of the interior of the car and was

told not to arrest Petitioner with an

implication that a search of the interior

of the car would not be justified at that

time.

There was apparently no belief that

Jason Blubaugh would return to the scene

because a third officer was sent to a

location where Jason was known to be.

During this time, Officer Lemley and

Officer Butler searched Appellant’s

vehicle. Officer Lemley does not recall

whether or not she asked permission for

the search but didn’t feel that she needed

it anyway. In any event, no permission was

granted and Defendant/Appellant/Owner of

the vehicle, Shad Lynds, protested the

search from beginning to end. The officers

checked the vehicle including under the

seat where they believed Appellant to have

leaned. Under the seat were a radar

detector (Legal in the State of Ohio), a

cassette tape and a flashlight. After the

officers removed those items from the

vehicle and were holding them, they

discovered that they were wet. Officer

Lemley testified that her reason for

believing those items were stolen was a

combination of the radio communication and

that there had been problems in the entire

city with people entering cars and stealing

items. As a result of finding these items,

and aS a result of receiving citywide

complaints, the officers took the keys from

the ignition of Appellant’s car and again

ise

without permission continued their search

of Appellant’s car by opening the trunk.

Appellant protested the search as

vigorously as he could under the

circumstances, yet it continued. In the

trunk were various items including radar

detectors and cassette tapes.

Appellant, as the result of the search,

was charged with receipt of stolen

property. The flashlight and cassette tape

found under the seat were not listed on the

Bill of Particulars as claimed stolen

property. Every item of such property, as

set forth on the bill of particulars came

out of Appellant’s car. None of the items

listed in the bill of particulars were in

plain view. Officer Lemley could see

nothing in the trunk until she opened it.

At no time throughout the entire search and

seizure process did the officers have a

warrant to search nor had they sought one.

All of the items seized were seized prior

to Appellant actually being arrested (or

subsequent to an unlawful arrest if it is

determined that "securing" the appellant

in the police cruiser to "complete the

investigation" constituted an arrest).

Officer Lemley testified at the suppression

hearing that the officers opened the trunk

because they believed the items found under

the seat to be stolen by virtue of various

reports over several months. The officers

allegedly knew the items in the trunk were

stolen due to several reports over several

months involving radios and radar detectors

being stolen. It was a continual problem

"that we were having". At the suppression

hearing Officer Lemley testified that the

search of the trunk was an “inventory

search" since the vehicle was going to be

impounded. Again, at this time there was

no search warrant nor was there any lawful

arrest nor was there any threat to the

physical safety of the officers. Moreover,

Apacer ated S ete Bait age:

EUR it. wie Hat ail tae NAHE DP CARE bn Re ee tre

. a ll

not one item found in the search of the

passenger compartment or of the trunk of

the vehicle was in plain view.

Officer Lemley testified that the

officers did not know the name of the

person who gave the report that the

officers received over the radio but that

she believed that report to be reliable.

Apparently this belief was by virtue of

the fact that there was a report. Nothing

in Officer Lemley’s report indicated that

Appellant was ever seen looking into

vehicles or walking the street. Officer

Lemley, at the suppression hearing,

admitted going to the scene, putting

Appellant in the car, searching his car,

and seeing the subject items for the first

time after the search began. She further

admitted that she lacked the permission for

the search. None of the items were seen

by Officer Lemley prior to Appellant being

locked in a police cruiser. Officer

Lemley, who testified that she believed she

had probable cause, further testified that

it was not unusual to find a cassette, a

flashlight or a radar detector as she did

in this case. Throughout the entire

process leading up to and including the

search of Appellant’s vehicle, Appellant

was not being the subject of a protective

search, but was locked in a police cruiser

while the officers searched his vehicle

finding items that were not in plain view;

were not unusual; were not obviously

contraband; and using those items as a

basis to search for other items in other

portions of the car which were also not in

plain view. At no time did Officer Lemley

indicate that she believed Appellant’s

vehicle to be stolen yet she did testify

that the vehicle was to be impounded and

that therefore an inventory search is what

was conducted. In essence this was a

warrantless search and seizure that did not

‘

Me i AEROS AI ain

fall within any exception to the rules

regarding search and seizure and therefore

the items seized should have been

Suppressed by the trial court which denied

the motion to suppress and found the search

to be a legitimate search.

Justice Wright, in writing a dissenting

opinion from the four-three decision of the

Supreme Court of the State of Ohio, stated,

in pertinent part as follows:

"The majority’s citation of Carroll

v. United States (1925), 267 U.S.

132, 45 S.Ct. 280, 69 L.Ed. 543, in

it journal entry affirming this case

is puzzling at best."

"The undisputed, sworn testimony of

the officer making the initial stop

and the two later searches of the

automobile establishes the following

facts:

i. Officer Kimberly Lemley

approached Lynds’s parked automobile,

ordered him out, and searched him

based on nothing other than the

officer’s subjective suspicion. The

officer then secured Lynds in her

patrol car to, as she testified,

"complete the investigation."

2% Still based on _ subjective

suspicion, Officer Lemley completed

an initial search of the car’s

interior which yielded nothing that

would justify an arrest of Lynds.

In fact, during oral argument the

state conceded that the police

officer conducting the search called

the prosecutor for advice and was

told not to arrest Lynds after the

initial stop, implying that a search

of the interior of the car would not

be justified at that time.

3. Undaunted by this advice, the

police officer continued, without

either a warrant or consent from

Lynds, to conduct what the officer

characterized under oath as an

"inventory search." In the course

of this further search the officer

took Lynds’s keys and opened the

trunk of his automobile and

discovered items that later proved

to be stolen goods. When asked under

oath why she opened the _ trunk,

Officer Lemley replied: "We found

items that we believed to be stolen

and we were going to have the vehicle

impounded. We did an inventory

search, also." Yet just minutes

later, on cross-examination, Officer

Lemley testified that the reason she

confined Lynds in her police cruiser

prior to searching the care was "to

complete the investigation."

4. Officer Lemley testified that

lynds protested against the search

from beginning to end, insisting that

his girlfriend be allowed to take the

car.

As stated above, the rule of Carroll

is totally out of.sync with the facts

of the case before us. Based on the

response Officer Lemley received from

her request for legal advice, the

officers clearly no longer had

Ee aL ee

Addin. 63 aca OL TNR ETM lr (Eo acale ‘

pai HL i ae AM Toe G6 Lm hh) athe ea herve

"reasonable cause * * * for belief

that the contents of the automobile

offend against the law." Carroll] at

158-159, 45 S.Ct at 287, 69 L.Ed. at

554. Hence, without probable cause,

inapposite to the facts of this case.

I think it interesting that the

search in Carroll took place at a

time when Warren Harding was

President of the United States, Earl

Warren had not yet become district

attorney, and the genesis of Fourth

Amendment jurisprudence with respect

to the States was forty years in the

future."

REASONS FOR GRANTING THE WRIT

Certiorari should be granted regarding

this important federal question to resolve

the conflict and confusion among the

various states and circuits with respect

to the automobile exception to the warrant

requirement.* Moreover, even though there

is confusion among the states and circuits,

the Supreme Court of Ohio in its decision

herein has apparently improperly developed

a view that there is no limit to the

automobile exception to the warrant

requirement.’ Lastly, the issues involved

herein raise important federal questions

which go to the very heart of the Bill of

Rights.* In fact, had Officer Lemley been

male, dressed in a red coat and powdered

* See Carroll v. United States, 267 US.

132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

2 Id.

* Amendments 1 through 10 to the United

States Constitution.

AA ett Na lc i Bn it

wic, 220 years previously, her actions

(albeit in regard to a horse drawn rather

than horseless carriage) would have come

as no surprise but would have been no less

an outrage. It is this tribunal, and only

this tribunal, that has the power and

capacity to correct the Supreme Court of

Ohio and clarify the law as it relates to

these issues for the benefit of the bench,

the bar, the law enforcement community, and

most importantly, the citizenry.

I. The state courts and the federal

circuit are divided and confused with

respect to the state of the law regarding

the automobile exception to the warrant

requirement. Justice Wright’s dissent from

the Supreme Court opinion below is not the

only clear statement of displeasure from

a Supreme Court bench. In fact, Justice

Durham of the Supreme Court of Utah in his

majority opinion contained in State v.

Larocco* stated "the United States Supreme

Court’s' interpretation of the Fourth

Amendment, especially in the context of

automobile searches, has been the source

of much confusion among judges, lawyers,

and police. Justice Paul has commented,

‘(T]he law of search and seizure with

respect to automobiles is intolerably

confusing. The court apparently cannot

agree even on what it has held previously,

let alone on how these cases should be

decided.’*".

To fully appreciate the nature of the

problem, one must briefly review the

general notion of the automobile exception.

The automobile exception to the warrant

requirement contained in the Fourth

Amendment to the United States Constitution

was first clearly articulated in Carroll

Fe W gt per a OOS SIC TEC e siahictcaieis sien arnt

* State v. Larocco 794 P.2d 460 (1990).

° Robbins v. California, 453 U.S. 420

(1981).

v. United States’. Carroll’ was a

prohibition era case involving’ the

transportation of liquor hidden in an

automobile. The court therein discussed

the ability for an automobile to be moved

and, therefore, the impracticality of

obtaining a warrant. In short, the

Carroll* court concluded that where it is

not practicable to secure a warrant because

the vehicle may be quickly moved out of the

jurisdiction (exigent circumstances) and

when the officer has probable cause to

believe that the vehicle is involved in

criminal activity, no search warrant is

required. In Katz v. United States,°® this

court held that searches conducted outside

the judicial process, without prior

* Supra.

” Infra.

* Infra.

* Katz v. United States 389 U.S. 347

(1967).

approval by judge or magistrate are per se

unreasonable under the Fourth Amendment and

that this requirement is subject only to

a few specifically established and well

delineated exceptions. The Katz’*® court

also held that an individual’s expectation

of privacy was a suitable criterion for

determining whether the Fourth Amendment

was applicable.

During the early 1970’s this court

vacillated in its Fourth Amendment

jurisprudence with respect to the

automobile exception. In Chambers v.

Marone,” the court upheld a warrantless

search of an automobile which occurred

after the occupants had been arrested and

the car had been driven to the police

station, virtually ignoring the mobility

factor outlined in Carroll as a

justification for the automobile exception.

™ Jarre,

““ Chambers v. Marone 399 U.S. 42 (1970)

In 1971, this court reiterated its position

that warrantless searches are per se

unreasonable and subject only to a few

specifically established exceptions and

invalidated a warrantless search of an

arrestee’s automobile in Coolidge v. New

Hampshire.” The Coolidge*® court

distinguished the case from Chambers by

stating that the automobile was parked in

a driveway while the Chambers” vehicle had

been moving on a public highway.

By 1974, however, the Coolidge”* analysis

suffered under Cardwell] v. Lewis.” The

general theory of the Cardwell” plurality

“ Coolidge v. New Hampshire 403 U.S. 443

(1971).

* Infra.

Infra.

” Cardwell _v. Lewis 417 U.S. 583 (1974).

Infra.

was that one has a lesser expectation of

privacy in a motor vehicle because its

function is transportation and it seldom

serves as one’s residence or as a

repository of personal effects.

The Cardwell’? viewpoint held favor at

least until 1985 (see California v. Carney”

where the court expanded the circumstances

where warrantless searches of motor

vehicles would be allowed in that it

virtually eliminated the requirement of

exigent circumstances.) The Carney” court

indicated that the capacity to be quickly

wovea was Clearly the basis of the holding

in Carroll” but was no longer the only

basis for the automobile exception.

Specifically, the court was referring to

~ Intra.

* California _v. Carney 471 U.S. 386

(1985).

™ Inere:

72 Infra.

the diminished expectation of privacy

notion in that vehicles can be looked into

and are subject to pervasive regulation.

The diversity of views with respect to

the automobile exception do not end with

this court’s own decisions, the decisions

of the Ohio Supreme Court, or those of the

Supreme Court of Utah. Rather, they span

the nation. The United States Court of

Appeals, Ninth Circuit, has held that the

automobile exception applies only when a

vehicle is on the open road or is capable

of movement and is in a place not regularly

used for residential purposes--temporary

or otherwise. U.S. v. Gooch”. In accord

with Gooch* is State v. Kock” where the

Supreme Court of Oregon in 1986 expressed

disdain for the "seminal case of Carroll

* U.S. v. Gooch 6 F.3d. 673 (9th Cir.

1993).

* Infra.

* State v. Kock 725 P.2d 1285, 302 or.

29 (Or. 1986).

v. United States . . . and its progeny,

including United States v. Ross, 456 U.S.

798 (1982), when it held that any search

of an automobile that was parked, immobile

and unoccupied at the time the police first

encountered it in connection with the

investigation of a crime must be authorized

by a warrant issued by a magistrate or,

alternatively, the prosecution must

demonstrate that exigent circumstances

other than the potential mobility of the

automobile exist." Further in State v.

Zemunski*” the Supreme Court of Nebraska

dealing with facts similar to those in the

instant’ case, held that since the

Defendants therein were in handcuffs by the

time the officers turned their attention

to the vehicle, there was no longer a need

for a protective search. However, Nebraska

is apparently in complete disagreement with

* State v. Zemunski 423 N.W.2d 443, 228

Neb. 536 (Neb. 1988).

TN ee ee

Alabama. In Mewbourn v. State,” the Court

of Criminal Appeals of Alabama held that

a lack of exigent circumstances, the

officer’s ability to obtain a _ search

warrant, and the immobilization of a car

when surrounded by 15 law enforcement

officers would not bar a warrantless search

of the vehicle.

While some court’s struggle with

defining just what the requirements of the

automobile exception are, others struggle

with another of Carroll’s” requirements,

specifically probable cause. Again, in a

case Similar to the instant case, the

Supreme Court of Utah in State _ vy.

Schlosser,” found that even if articulable

and reasonable suspicion would have been

*” Mewbourn v. State 570 So.2d 805

(Ala.Cr.App. 1990).

" Infra.

* State v. Schlosser 774 P.2d 1132

(1989).

sufficient to justify an officer’s action

in opening the passenger door of an

automobile which he has stopped for traffic

violation, the officer did not have a

reasonable and articulable suspicion of

criminal activity based on the fact that

he had seen the passenger acting fidgety,

turning to the left and to the right, and

turning back to look at the officer in such

a manner as to make the officer believe he

was attempting to hide something. In a

case where an officer’s suspicions far

outweigh those of Officer Lemley in the

instant case, the Supreme Judicial Court

of Massachusetts held that police officers

did not have probable cause to believe that

a Defendant was or had been engaged in

criminal activity so as to warrant stopping

the Defendant’s vehicle and searching the

vehicle for a handgun where police had been

notified by the clerk at a convenient store

that the Defendant had a handgun in his

pocket but that there was no indication

that the gun was used in any manner to

threaten to intimidate the store clerk, or

that the Defendant lingered for an unusual

period of time at the store or that he was

casing the store in preparation for a

robbery and where further the police had.

no reason to believe, before conducting a

search of the vehicle, that the Defendant

had no license to carry a firearm. Common

Wealth v. Couture”. Even making a stuffing

motion under the seat of a car upon being

pulled over was insufficient, by itself,

to justify a warrantless search of the car

an Arnold, III _v. State”.

While cases such as the foregoing

attempt to carefully balance the probable

cause and reasonable articulable suspicion

concepts, other states take a more certain

*° Commonwealth v. Couture 522 N.E.2d 538,

407 Mass. 178 (1990).

*“ Arnold, III _v. State 544 So.2d 294

(Dist. Ct. App. Fla. 2d Dist. May 26, 1989).

view. The Supreme Court of Missouri in

State v. Milliorn”’ has, in its review of

the state of the law, identified that law

enforcement personnel may conduct a

warrantless search of a vehicle and seize

contraband found if (1) there is probable

cause to believe that the vehicle contains

contraband and (2) exigent circumstances

necessitate the search. However, the

Milliorn®’ court went even farther and held

that as a practical matter, "exigent

circumstances exist whenever an automobile

is involved; the mere possibility that the

vehicle can be moved is’ generally

sufficient justification for a warrantless

search." {emphasis added). Therefore,

Missouri is taking the position that the

only requirement for a warrantless search

of an automobile is probable cause which

* State v. Milliorn 794 S.W.2d 181

(Mo.banc. 1990).

* Infra.

it defines as requiring no more than a

reasonable belief that it is more probable

than not that the vehicle contains illegal

property. Petitioner would submit that

there is a considerable difference between

a “reasonably articulable suspicion" and

"more probable than not".

The reasonable expectation of privacy

issue is not dead either. However, the

states appear to be backing away from the

standard as developed by this court. In

fact, in People v. Anderson“, the court

noted that the Defendant therein had

manifested a subjective expectation of

privacy in a tag containing the gross

vehicle weight rating located on the door

edge of his Blazer by closing the door of

his vehicle upon exiting. The court went

on to state that such an expectation of

privacy is objectively reasonable by

* People v. Anderson 531 N.E.2d 116, 176

I1l1.App.3d 348, 125 I11.Dec. 937 (Appellate

Court of Illinois 2d District 1988).

society’s standards and further stated that

although people do not have the same

expectation of privacy in their automobiles

as they do in their homes, they do not

surrender all of their Fourth Amendment

protection when they enter their

automobile. The Anderson”® court in dicta

stated that the door of the automobile is

an integral aspect of retaining the

privacy, albeit diminished, of the

passenger compartment. The fact that the

Defendant had voluntarily exited his

vehicle upon being stopped by a law

enforcement officer, coupled with his

immediately closing the driver’s door,

manifested his expectation of privacy. In

short, the Anderson court was taking the

position that while there may be a

diminished expectation of privacy in an

automobile, the owner of the automobile may

* Infra.

enhance that expectation of privacy through

his or her actions.

The Anderson” view would be accepted in

the State of Florida, at least in the Fifth

District Court of Appeals therein which,

in Jenkins v. State” held that a police

officer illegally seized items in plain

view inside the passenger compartment of

a vehicle when, after encountering the

motorist parked on a right-of-way and

° ordering the motorist to exit the vehicle

and walk to the police car, the officer

then approached the motorist’s now vacant

vehicle and looked inside. The court even

assumed, arguendo, that the officer, for

his own safety, could order the motorist

who had not committed any violation of the

law to exit the vehicle in order to check

on the motorist’s well being but having

done so, the officer then had 09no

* Infra.

” Jenkins v. State 567 So.2d. 528 (1990).

justification to inspect the motorist’s

vacant vehicle and no probable cause to

maxe an arrest until the items were

observed inside the vehicle.

It is evident that not only are the

courts divided on what the automobile

exception to the warrant requirement

provides, they are equally divided on the

application of those requirements. Such

division and confusion has resulted in

unequal and unclear application of law.

az. In the instant case, the Ohio

Supreme Court has apparently improperly

developed a view that there is no limit or

guide to the automobile exception (an

apparent expansion of Carroll)”. The

arresting officer herself testified that

she approached Petitioner’s parked

automobile, ordered him out, and searched

him based on nothing other than her

subjective suspicion and that she then,

* Infra.

Oe ee ee ae ee

ee ee OE ie ee ee eR Oe te Tee ee

without arresting Petitioner, secured him

in her patrol car to complete the

investigation. She then proceeded -to

search the passenger compartment of the

automobile where she found a few electronic

items which she did not believe to be

unusual to be present. However, she

proceeded to remove the keys from the

ignition and open and search the trunk,

over the Defendant’s continuous protests

(the Ohio Supreme Court having noted that

Defendant protested the search "from

beginning to end".). Depending upon which

application of the automobile exception one

chooses to apply to the instant case, the

results may vary. The Ohio Supreme Court

relied on Carroll*® and United States v.

Ross*’. However, as has been shown, the

; * Infra.

" * United States v. Ross 456 U.S.

798 (1982).

Carroll® doctrine requires both exigent

circumstances and probable cause. It

appears that Ohio may be developing the

view along with Missouri that by virtue of

there being an automobile involved in the

first place, that qualifies as exigent

circumstances. Unfortunately, it also

appears that Ohio is eliminating the

probable cause requirement, or at least

limiting it to something considerably less

than a reasonable, articulable suspicion.

Perhaps this is being done similar to

Missouri, also. In fact, it appears that

the Ohio Supreme Court is attempting to do

away with the exclusionary rule as it

applies to searches and seizures of

automobiles.

Additionally, it is clear that

Petitioner’s vehicle was no longer mobile.

He was secured in the police cruiser and

Officer Lemley had possession and control

“ Infra.

of the keys. The split referred to in the

preceding section among the courts of this

country clearly demonstrate that depending

upon what state a suspect resides in

controls whether or not his vehicle is

deemed to be moveable for Fourth Amendment

purposes. It is, therefore, necessary that

this court clarify these issues.

Se ee eee ide a

CONCLUSION

In an area of federal law so important

as the Fourth Amendment as it relates to

automobiles, it can no longer be

countenanced that the state of the law

throughout the union is totally

inconsistent and unclear. While it is one

matter to have certain individuals rights

vary from state to state depending upon

the laws of the State, it is quite another

to have individuals’ federal rights vary

from state to state. Therefore, given the

past conflict within this court itself and

the tremendous conflict within the various

states, and given the detrimental effect

that this has had on the Petitioner, this

court should grant certiorari and clean

with the cloth of clarity the slate of

confusion which has existed since 1925.

Respectfully

submitted,

CHRISTIAN D. ROLAND

e Bil Sa ne

Counsel of Record,

ALAN P. GUSTAFSON

GUSTAFSON & ROLAND

240 North Main

P.O. Box 484

Utica, OH 43080

(614) 892-4444

Attys. for Petitioner

IN THE COURT OF COMMON PLEAS, KNOX COUNTY, OHIO

STATE OF OHIO

Plaintiff

-vs- Case No. 91CRO30035

SHAD W. LYNDS

Defendant

JOURNAL ENTRY

This cause came before the Court this

23rd day of August, 1991, for purposes of

a suppression hearing.

The Couct finds that the Defendant is

present in the Courtroom with Counsel, Alan

P. Gustafson. The State of Ohio is

represented in the person of Robert J.

McClaren, Assistant Prosecuting Attorney

for Knox County.

The Court finds that the Defendant is

charged with Receiving Stolen Property, in

violation of Section 2913.51(A) of the

Revised Code of Ohio, a felony of the

fourth degree as contained within the

Indictment.

After hearing all the evidence

relevant to this matter the Court denies

the motion to suppress. The Court

further finds that there was sufficient

probable cause in this matter for the

officers to carry out a warrantless

automobile search under the Carroll

doctrine.

Bond previously entered is continued.

Otho Eyster, Judge

APPROVED

JOHN W. BAKER

Prosecuting Attorney

BY: Ls/

Robert J. McClaren

Assistant Prosecuting Attorney

Ls/

Alan P. Gustafson

Attorney for the Defendant

COURT OF APPEALS

KNOX COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO |

Plaintiff-Appellee Case No. 92-

CA-01 |

OPINION

SHAD LYNDS

Defendant-Appellant

JUDGES:

Hon. W. Scott Gwin, P.J.

Hon. Norman J. Putman, J.

Hon. John R. Milligan, J.

CHARACTER OF PROCEEDING: Criminal

Appeal from

the Court of

Common Pleas

Case No.

91CRO30035

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

JOHN W. BAKER

Prosecuting Attorney

ROBERT J. MCCLAREN

Ass’t Prosecuting Attorney

114 East Chestnut Street

Mt. Vernon, OH 43050

For Defendant-Appellant

ALAN P. GUSTAFSON

CHRISTIAN D. ROLAND

240 North Main Street

Utica, OH 43080

PUTNAM, J.

This is an appeal from a judgment of

conviction and sentence entered upon a

plea of no contest to the charge of

receiving stolen property, a violation of

R.C. 2913.51(A). Defendant-appellant,

Shad Lynds (appellant), assigns the

following as error:

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED

PREJUDICIAL ERROR BY DENYING

APPELLANT’S MOTION TO SUPPRESS

EVIDENCE UNLAWFULLY FOUND IN

APPELLANT’S VEHICLE PURSUANT TO AN

IMPROPER AND UNLAWFUL SEARCH.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT COMMITTED

PREJUDICIAL ERROR BY DENYING

APPELLANT’S MOTION TO SUPPRESS

EVIDENCE UNLAWFULLY FOUND IN

APPELLANT’S VEHICLE PURSUANT TO AN

IMPROPER AND UNLAWFUL SEIZURE.

For the reasons stated below,

appellant’s assignments of error are

overruled.

On the evening of December 30, 1990,

Mount Vernon Police Officers Julie Butler

and Kimberly Lemley were on routine

patrol when they received a radio report

that there were two suspicious subjects

seen in the area of Oak Street in Mount

Vernon.

Officer Butler investigated the area

and found the individual walking by

himself. Officer Butler talked with this

person for a brief moment and then

continued on her way down Oak Street.

Officer Lemley proceeded to Oak Street

on foot and observed the exchange between

Officer Butler and the individual.

Officer Lemley also observed appellant

standing around the corner of a house as

if looking at the encounter between

Officer Butler and the other individual.

After Officer Butler released this

individual, Officer Lemley saw appellant

run across Oak Street, across a yard, and

into a vehicle parked near the East

Elementary School. T.9-10. When

appellant got into the vehicle, Officer

Lemley observed him reach across and put

something under the front passenger seat

of the car. 1.10. Officer Lemley then

approached the vehicle and asked

appellant to get out and produce a

Griver’s license, which he did.

Officer butler arrived, and with the

appellant secured in the cruiser, the

officers searched the vehicle where

appellant had placed something underneath

the front seat. 1.11. The officers

found a radar detector, cassette tape,

and a flashlight. Id. All items were

wet and Officer Lemley, believing that

the items were stolen, conducted a search

of the car’s trunk. 1.13. In the trunk,

the officers found more radar detectors.

Officer Lemley testified that over the

past months she had taken several reports

regarding stolen radar detectors. 1.13.

a @& IZ

Appellant moved to suppress the

evidence, arguing that the warrantless

search of his vehicle and seizure of the

items was unlawful. The trial court

overruled this motion and appellant now

assigns this as error.

We overrule both of appellant’s

assigned errors on the authority of

Carroll v. United States (1925), 267 U.S.

132. In that case, the court set forth

the automobile exception to the general

rule that a warrant must be secured

before a search is conducted. The Court

held that the ready mobility of an

automobile justifies a lesser degree of

constitutional protection of privacy

interests. The Court stated:

[Tjhe guaranty of freedom from

unreasonable searches and seizures

by the Fourth Amendment has been

construed, practically since the

beginning of Government, as

recognizing a necessary difference

between a search of a store,

dwelling house or other structure

in respect of which a proper

official warrant readily may be

obtained, and a search of a ship,

motor boat, wagon or automobile,

for contraband goods, where it is

not practicable to secure a warrant

because the vehicle can be quickly

moved out of the locality or

jurisdiction in which the warrant

must be sought. (Emphasis in

original).

Carroll, supra, at 153.

Officer Lemley testified that when she

approached appellant the keys were in the

ignition and she "wanted to get to the

car before he moved it." T. 12-13.

Additionally, appellant’s running to the

car shows consciousness of guilt and

Officer Lemley had reasonable suspicion

to stop appellant. Terry v. Ohio (1968),

392 U.S. 1; State v. Bobo (1988), 37 Ohio

St. 3d 177.

For the foregoing reasons, appellant’s

assigned errors are overruled and the

judgment of the Knox County Court of

Common Pleas is affirmed, and this cause

is remained to that court for execution

of sentence.

Gwin, P.J. and

Milligan, J. concur.

JUDGES

NJP/femc 1216 1217

IN THE COURT OF APPEALS FOR KNOX COUNTY. OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-ys-

SHAD LYNDS

Defendant-Appellant

CA-01

JUDGMENT ENTRY

CASE NO. 92-

For the reasons stated in the

Memorandum-Opinion on file, the judgment

of the Court of Common Pleas of Knox

County, Ohio, is affirmed and this cause

is remanded to that court for executicn

of sentence.

JUDGES

THE STATE OF OHIO, APPELLEE,

Vv.

LYNDS, APPELLANT.

[Cite as State v. Lynds (1994), 69 Ohio St.3d. 102.]

Constitutional law--Search and seizure--

Warrantless search of entire automobile

permitted, when.

STATE v. LYNDS

Dissenting Opinion, per Wright J.

(No. 93-402--Submitted February 23, 1994-

-Decided April 27, 1994.)

APPEAL from the Court of Appeals for Knox

County, No. 92-CA-01.

John W. Baker, Knox County Prosecuting

Attorney, and Robert J. McClaren,

Assistant Prosecuting Attorney, for

appellee.

Christian D. Roland and Alan P.

Gustafson, for appellant.

The judgment of the court of appeals

is affirmed on authority of Carroll v.

United States (1925), 267 U.S. 132, 45

S.Ct. 280, 69 L.Ed. 543, and United

States v. Ross (1982), 456 U.S. 798, 102

8.Ct. 2157, 72 L.Ba.24d 572.

MOYER, C.J., DOUGLAS, RESNICK and F.E.

4 SWEENEY, J.J., concur.

A.W. SWEENEY and WRIGHT, J.J., dissent

with opinion.

PFEIFER, J., dissents.

WRIGHT, J., dissenting. The

majority’s citation of Carroll v. United

States (1925), 267 U.S. 132, 45 S.Ct.

280, 69 L.Ed 543, in its journal entry

affirming this case is puzzling at best.

In Carroll, the United States Supreme

Court held that a warrantless search of

an automobile may be conducted under

circumstances that would not justify the

search of a home or place of business,

provided there is probable cause to

believe that the automobile contains

items that the authorities are entitled

to seize. The Carroll decision explores

the development of the Fourth Amendment

from the time its adoption and is an

interesting and worthwhile discussion of

the differences involved in the criteria

necessary for the search of a citizen’s

home or place business and the criteria

necessary for the search of the interior

}

Ao 8 cin ald eincmebses tS alan aetsonan hz"

of an automobile. Nowhere in Carroll,

however, can one find support for the

proposition that a search without a

warrant is anything other that per se

unreasonable, absent some recognized

exception to this bulwark of Fourth

Amendment jurisprudence. In my view, the

Salient facts in this case do not give

rise to probable cause under Carroll and

do not fall within any of the well-

recognized exceptions to the warrants

Clause, particularly the inventory

exception espoused by the officers

present at the time of the search.

The undisputed, sworn testimony of the

officer making the initial stop and the

two later searches of the automobile

establishes the following facts:

1. Officer Kimberly Lemley approached

Lynds’s parked automobile, ordered him

out, and searched him based on sothing

other than the officer’s subjective

suspicion. The officer then secured

Lynds in her patrol car to, as she

testified, "complete the investigation."

2. Still based on subjective

suspicion, Officer Lemley completed an

initial search of the car’s interior

which yielded nothing that would justify

an arrest of Lynds. In fact, during oral

argument the state conceded that the

police officer conducting the search

called the prosecutor for advice and was

told not to arrest Lynds after the

initial stop, implying that a search of

the interior of the car would not be

justified at that time.

3. Undaunted by this advice, the

police officer continued, without either

a warrant or consent from Lynds, to

conduct what the officer characterized

under oath as an "inventory search.” In

the course of this further search the

officer took Lynds’s keys and opened the

6 Mel REM he ae wit tl DO ON ee

{

trunk of his automobile and discovered

items that later proved to be stolen

goods. When asked under oath why she

opened the trunk, Officer Lemley replied:

"We found items that we believed to be

stolen and we were going to have the

vehicle impounded. We did an inventory

search, also." Yet just minutes later,

on cross-examination, Officer Lemley

testified that the reason she confined

Lynds in her police cruiser prior to

searching the care was "to complete the

investigation."

4. Officer Lemley testified that

lynds protested against the search from

beginning to end, insisting that his

girlfriend be allowed to take the car.

As stated above, the rule of Carroll

is totally out of sync with the facts of

the case before us. Based on the

response Officer Lemley received from her

request for legal advice, the officers

clearly no longer had "reasonable cause *

* * for belief that the contents of the

automobile offend against the law."

Carroll at 158-159, 45 S.Ct at 287, 69

L.Ed. at 554. Hence, without probable

cause, Carroll v. United States is

inapposite to the facts of this case.

I think it interesting that the search

in Carroll took place at a time when

Warren Harding was President of the

United States, Earl Warren had not yet

become district attorney, and the genesis

of Fourth Amendment jurisprudence with

respect to the States was forty years in

the future." See Mapp v. Ohio

(1961), 367 U.S. 643, 81 S.Ct 1684, 6

L.Ed.2d 1081. It was not until fifty

years after Carroll that the court

developed the inventory search exception,

designed to protect police officers from

suits charging pilfering. See South

Dakota v. Opperman (1976), 428 U.S. 364,

96 S.Ct. 3092, 49 L.Ed.2d 1000. In South

Dakota v. Opperman, supra, the United

States Supreme Court upheld the validity

of an inventory search of an automobile

after the automobile was towed to the

city’s impound lot for being illegally

parked overnight in a restricted zone.

The search was carried out using a

standard inventory form and pursuant to

standard police procedures. Probable

cause was found to be unnecessary. The

court emphasized, however, that it deemed

the inventory search reasonable because

the "police were indisputably engaged in

a caretaking search of a lawfully

impounded automobile * * * only after the

car had been impounded for multiple

parking violations." Id. at 375, 96

S$.Ct., at 3100, 49 L.Ed.2d at 1009. In

addition, the court noted that the

"inventory itself was prompted by the

presence in plain view of a number of

valuables inside the car" and that the

owner "was not present to make other

arrangements for the safekeeping of his

belongings." Id. at 375-376, 96 S.Ct. at

3100, 49 L.Ed2d at 1009. Based on this

set of criteria, nothing in the facts of

the case before us could permit one to

reasonably conclude that what Officer

Lemley conducted was a lawful inventory

search.

In truth, the only real justification

for the search of Lynds’s locked trunk is

that an enterprising officer discovered

stolen goods there as a result of that

search. The danger of adopting such a

criterion is evid« =. Justifying the

search on the basis of what is found

"Just ‘will not do.’" Smith v. Ohio

(1990), 494 U.S. 541, 543, 110 S.Ct.

1288, 1290, 108 L.Ed2d 464, 467,

summarily reversing State v. Smith

(1989), 45 Ohio St.3d 255, 544 N.E.2d

239.

For the reasons aforesaid, I

respectfully dissent.

A.W. SWEENEY, J., concurs in the

foregoing dissenting opinion.

IN THE COMMON PLEAS COURT FOR KNOX COUNTY, OHIO

STATE OF OHIO

Plaintiff

vs. : Case No.

91CRO30035

SHAD W. LYNDS

Defendant :

APPEARANCES :

Knox County Prosecutor’s office, by

Mr. Robert McClaren

For the Plaintiff

Mr. Alan P. Gustafson

For the Defendant

HON. OTHO EYSTER

Presiding

August 23, 1991

LINDA S. MCGEE

Court Reporter

FLORINE I. VARNER &

ASSOCIATES, INC.

1-800-835-5251

1-8000-522-7896

FA Ait alt BE BEB Le ae HOH

THE COURT: This is Case No. 91CRO030035,

State of Ohio v. Shad Lynds. Let the

Record show that the Defendant is present

in the courtroom represented by Al

Gustafson and the State in the courtroom

of Bob McClaren, Assistant Knox County

prosecutor. We are her to proceed to

Motion to Suppress. Are you ready to

proceed?

MR. MCCLAREN: Yes.

THE COURT: The defense?

MR. GUSTAFSON: Yes, Your Honor.

THE COURT: Just two witnesses?

MR. MCCLAREN: That’s all, Your Honor.

THE COURT: Raise your right hand.

JULIE D. BUTLER of lawful age, a Witness

herein, called by the Plaintiff as upon

Direct Examination pursuant to the Rules

of Criminal Procedure, being first duly

sworn according to law, was examined and

testified as follows:

THE COURT: Any preliminary matters here?

MR. MCCLAREN: Nothing for the

prosecutor.

MR. GUSTAFSON: I move for separation of

witnesses.

THE COURT: Who is the first witness?

LAS ct ite Nil SA DBT eI Oo ne

MR. MCCLAREN: Patrolman Julie Butler.

THE COURT: Who was the arresting

officer?

MR. MCCLAREN: Officer Lemley.

THE COURT: The separation is granted

and I will ask you not to remain in the

courtroon. Call your first witness.

MR. MCCLAREN: The State would call

Officer Julie Butler.

DIRECT EXAMINATION OF JULIE D. BUTLER

BY MR. MCCLAREN:

Q. Please state your name and address.

A. I’m sorry, I couldn’t hear.

Q. State your name and address.

A. Julie D. Butler, 5 North Gay Street,

Mount Vernon.

- What is your occupation?

Police officer.

What law enforcement agency?

Mount Vernon Police Department.

> F- O PY VO

How long have you been employed

there?

A. Two years.

Q. Where was it previously?

A. 12 years with the Knox County

SHeriff’s office.

Q. What are your present duties?

A Police officer.

Q And what is your duty schedule?

A. My duty Schedule now, sir?

OO, Yes.

A, 8:00 a.m. to 4:00 p.m.

Q What was your duty schedule on the

30th of December, 1990?

A. Midnight to 8:00 a.m.

Q. Okay. Is one of your duties to

assist in the investigation of crimes?

A. Yes, sir.

~ eanmntoeat

2 ach Sag

dicen ta NM tlt a Patina

Q. And you were so employed on the 30th

of December, 1990?

A. Yes.

Q. Were you in uniform and squad car?

A. Yes, sir.

Q. Did you have an investigation, an

occurrence on Oak Street that day?

A. Yes, sir.

Q. And what happened when you came to

investigate on Oak Street on the 30th of

December, 1990?

A. I was dispatched on a report of a

suspicious person on Oak in the area of

the East Elementary School. Patrolman

Lemley advised that she would go to the

school where the suspect went in the car

and watched from the car window in the

area in the cruiser.

Q. What happened next?

A. I was patrolling up Oak and I came

across the subject coming up behind the

car and talked to the subject and

identified him and asked what he was

doing in the area.

Q. What did he say?

A. He told me that he had a fight with

his parents and was out for a walk and

“used to live in the area and came back to

walk around that particular area.

Q. What happened next?

A. After talking to the subject I

released him and continued out of Oak

Street and out of sight of this person.

Q. Why did you release this gentleman?

A. I just took his word that he was just

out for a walk. I had no reason to hold

him.

MR MCCLAREN: Thank you, no further

questions of this witness.

THE COURT: Cross examination.

CROSS EXAMINATION OF JULIE D. BUTLER

BY MR. GUSTAFSON:

Q. Who was the subject?

A. Jason Blubaugh.

Nan ae

fe ton aa, Mm OR ON PRN Nc a es

Q. And you said that you had a report

that came in of a suspicious person; is

that right?

A. Yes, sir.

Q. Was this radioed communication?

A. We, Bie.

Q. And basically what you had was radio

communication saying that there was a

suspicious person on Oak Street, Mount

Vernon, Ohio?

A. Yes, sir.

Q. And can you identify who had reported

that suspicious person?

A. I was not given a name across the

radio, no, sir.

Q. You were given a radio communication

in your patrol car that there was a

suspicious person on Oak Street, Mount

Vernon?

A. Suspicious persons, yes, sir.

Q. And when you say Jason he was by

himself?

Yes, sir.

Did he have anything with him?

Not at the time.

Carrying anything?

Ne, war.

Did you search him?

Yes, sir.

And you did?

Yes, sir.

o0o Fr OO FP OO FP OO FP OO PY

And obviously you didn’t find

anything?

Ae Te, Gare

Q. And you released him?

A. yes, sir.

Q. Did you see him again that evening?

A. Yous, ear:

MR. GUSTAFSON: I have no further

questions.

THE COURT: Redirect?

MR. MCCLAREN: Nothing, your Honor.

THE COURT: You can step down. Thank

you, officer.

MR. MCCLAREN: State calls Officer

Lemley.

THE COURT: Separation of witnesses, you

will have to leave the courtroom,

officer.

MR. MCCLAREN: State reserves the right

to call Officer Butler if necessary.

THE COURT: Just tell her to leave.

MR. MCCLAREN: Stay out there until I

tell you when to go.

THE COURT: They have been sworn.

KIMBERLY S. LEMLEY, of lawful age, a

Witness herein, called by the Plaintiff

as upon Direct Examination pursuant to

the Rules of Criminal Procedure, being

first duly sworn according to law, was

examined and testified as follows:

DIRECT EXAMINATION OF KIMBERLY S. LEMLEY

BY MR. MCCLAREN:

Q. State your name and address.

A. Kimberly S. Lemley, 5 North Gay

Street.

Q. What is your occupation?

A. Police officer of the City of Mount

Vernon.

Q. How long have you been employed

there?

A. 11 years.

Q. What is your previous law enforcement

experience?

A. I had a year and eight months as

dispatcher and 11 years as an officer.

What are your duties?

Patrol.

And what is your shift?

Midnight to 8:00 a.m.

oOo FF O PYF VO

. Were you so employed ont he 30th of

December, 1990?

A. Yes, I was.

Q. Were you in uniform?

A. Yes, I was.

Q. And did you have an occasion to

investigate an occurrence on Oak Street?

A. Yes, I did.

teh i ad Nc Rb ocak adr wi

a AW SIL Ot A Set A LOR ATS DEN AN) Ber 0 1

Q. To your knowledge when were you

there?

A. About 37 minutes after 12 we received

a complaint about two subjects that had a

leased car and they were seen looking in

cars in that area.

Q. And when you got there what did you

do?

A. I parked out of the area a little

ways and walked down to the East School

area behind Oak Street and located the

car.

Q. What did you do next?

A. Patrolman Butler came into the area

and I stood in the area of two garages

and watched the car and she came into the

area and located on outa around one of

the cars.

Q. What did you do next?

A. After she talked to the subject and

released him, at the time as she was

talking to him I observed another subject

standing around the corner of the house

as if looking at what was going on and I

advised--after she released who she

advised was Jason Blubaugh, after she

released Jason and left the area Jason

went down where the other subject was

standing ont he corner of Oak Street and

Jason disappeared and the other subject

ran across Oak Street and ran across the

other yard and into the vehicle. I was

watching.

Q. And did the subject do anything next?

A. As he got to the car, he got into the

car and as he was getting in he appeared

to be reaching over, appeared reaching

across and putting something under the

passenger seat of the front of the car.

Q. What did you do next?

A. I approached the vehicle before he

could move it and asked him to get out of

the vehicle and asked for the driver’s

license which he produced.

et Scie ed dee eee tle eee fe

Q. Did you ask him any other questions?

A. Not at that time. I put him in the

cruiser.

Q. Did he identify himself?

A. Yes, he gave me his driver’s license.

Q. Whose?

A. Shad Lynds.

Q. Is that the same gentleman in the

courtroom today?

A. Yes, he is.

Q. Would you identify him?

A. Sitting at the Defendant’s table and

sitting by his attorney.

MR. MCCLAREN: Let the Record show that

she has identified the Defendant.

Q. What did you do next?

A. Officer Butler responded to my

location. She came to the vehicle and we

checked the vehicle where he had went and

put, appeared to be putting something

underneath the car or underneath the seat

and located some items.

Q. What were these items?

A. Located micron radar detector,

cassette tape and flashlight.

Q. Anything specific about the items?

A. They were wet, the tape and radar

detector were wet and the flashlight felt

like it was cool, outside.

Q. How did you know these items were wet?

A. We picked them up and looked at them

and seen the moisture.

Q. Okay. Did you have any reason to

believe they were stolen?

A. With the complaint that we had, yes,

and we had been having problems in the

whole city with people entering cars and

stealing items?

Q. What did you do next?

A. Another officer arrived and we found

out where Jason was waiting for Shad to

pick him up and we sent an officer to

pick up Jason and send him to the scene

and in the meantime we proceeded to go to

the car and get it impounded and Shad at

different times was beating on the car

and yelling and I asked what he was

wanting, and we talked at different times

and I advised him of his constitutional

rights verbally and I secured items, got

his keys. In the trunk were several

radar detectors.

Q. Did you read him his constitutional

rights?

A. I advised him verbally of the

constitutional rights. At the station

when I was going to make out the

statement I read it and I showed him the

form.

Q. Did he say anything?

A. He did not want to cooperate with us.

Q. How did you search the car, how did

you open the trunk?

A. With the keys, he had the keys in the

ignition when I approached the car and I

took the keys and opened the trunk.

Q. So when Shad got in the car the keys

were already in the ignition when you

approached.

A. Yes, when I approached he had the

keys in the ignition. I wanted to get to

the car before he moved it.

Q. Why did you open the trunk?

A. We found items that we believed to be

stolen and we were going to have the

vehicle impounded so we did an inventory

search, also.

Q. And you found like you said

previously, radar detectors, cassette

tapes?

A. Yes.

Q. And what did you do with the items

that you found in the trunk?

A. Patrolman Butler and I secured the

items in the trunk that we knew that were

reported, radar detectors and items that

we questioned and items in the car that

had been taken that night in that area

and we secured those in paper bags and

placed them in one of the cruisers and

the car was impounded to the Blubaugh’s

Garage.

Q. - Briefly, how did you know some of the

items had been stolen?

A. We had taken several reports for

months of radios and detectors being

stolen as a continual problem that we

were having.

MR. MCCLAREN: Thank you. No further

questions.

THE COURT: Cross-examination.

CROSS~EXAMINATION OF KIMBERLY S. LEMLEY

BY MR. GUSTAFSON

Q. I’m not clear, Officer Lemley, where

you were when this whole thing started

and by whole thing started, did you ride

out with --

A. I was in a separate cruiser. I

parked out of the area and walked in.

Q. Did you get the same radio dispatch

that officer --

A. Yes, we would have.

Q. You were both in the car at the time

that the dispatch came is that right?

A. Yes.

Q. And so you heard the same things

which she heard which were basically

there were a couple subjects, suspicious

people walking down the street looking --

A. Looking in cars and the vehicle was

parked behind 309 Oak Street.

Q. Do you know who called in, did you at

that time?

A. I think that the resident of 309 but

was not given their name.

Q. Do you know?

A. Jack Austin.

Q. Was it in fact that person that

called that in?

ANA at rnin yaad ain a

ee fren

ao a tA Tish te

A. I didn’t talk to Jack, Patrolman

Butler talked to him and called, made the

report.

Q. At the time that you went to the

scene and seized the evidence you did not

know who called in the report?

A. No, as far as the name, no.

Q. And the person that called it in was

a reliable person or the report that you

received was reliable?

A. That’s correct, that’s why we checked

it out.

Q. So all you did know was that there

was reason to be dispatched to Oak Street

to see if suspicious people were around

there looking in cars?

A. Exactly.

Q. You went there and stood behind or

you found a car parked in an alley, was

it not?

A. No. We knew where the car was

parked. The people called in and said

they got out of the car which was in East

School.

Q. Was that car parked in an alley?

A. Yes, at the end of East School it

comes to a dead end and cuts to the

north.

Q. It was parked in an alley; is that

correct?

A. Yes.

Q. Was Shad Lynds ever charged for any

offense relating to that vehicle?

A. Either operation of the vehicle, the

parking of the vehicle, a traffic

offense?

©, Yes.

A. No.

Q. Was he ever charged with criminal

trespass?

A. No.

Q. Now, so you got there and the first

thing you did or one of the things you

did you found a car parked in the alley

— ~ ’

of 309 Oak Street, Mount Vernon, Ohio and

called in the license number and came

back as licensed to Shad Lynds, the

Defendant in this case; is that correct?

A. I don’t know if I called the plate

number in at that time or not.

Q. According to -- did you make the

report in this case. |

A. Yes, sir.

Q. Is this your writing?

A. I would have to see the page. Some

of the supplement Officer Butler made.

Q. Starting on the first page?

A. Yes, that’s mine. |

Q. Did you not indicate when you wrote

up the report that you knew that the car

was owned by Shad Lynds--

A. I Gon‘t--

Q. --prior to time that you saw him?

A. I don’t recall when I ran the plate

number whether it was before he came to

the car or not.

Q. Nothing in the report that you ever

saw Shad Lynds looking in any vehicles?

A. That’s correct.

Q. And nothing in the report that you

ever saw Shad Lynds waling up and down

the street, Oak Street?

A. That’s correct.

Q. And there is nothing in your report

that would indicate that you ever saw

Shad Lynds talking to in any way with

Jason Blubaugh?

A. Yes, I did. When Shad was standing

around the corner of it Jason went back

to him.

Q. Did you see the two of them talk at

all?

A. They stood therefore a few minutes.

I couldn’t tell if they talked. I know

that Jason told Shad to come to the park

so apparently there was some

communication.

sate

ee a eee

Q. At the time you searched the area you

had no idea what the communications were

between Shad Lynds and Jason?

A. No, I did not.

Q. Now, then you subsequently saw Shad

Lynds run across the street and get in

the car?

A. Run through the yard to go there, the

backyard and to the car.

Q. How close were you at that time?

A. Probably less that 100 feet.

Q. Was it a fairly well lit area?

A. No, dark area. Where I was sitting

in the dark. Around the schooi, it was

lit. He was around the building.

Q. Could you see him well when he ran

through the area?

A. I watched from the time he started

running, came through the yard and back

to the backyard and across to the car.

Q. And watching that, how was he running,

was he running with his arms up or flared

or what?

A. Run a pretty good pace.

Q. His arms were up when he was running?

A. I don’t know. When a person runs

they run with their arms up some.

Q. Was he carrying anything?

A. I couldn’t tell that.

Q. You were around 100 feet away with a

fairly lit area and he had his arms up

some but you couldn’t see him carrying

anything?

A. No, I couldn’t.

Q. Could you see any indication that he

was carrying anything at that point in

time?

A. Not at that time.

Q. If he had a radar detector wouldn’t

it show up and show--

MR. MCCLAREN: Asked and answered.

THE COURT: Overruled. go ahead.

ere recy

A. Some of them are small enough that

you hold them in the hands.

Q. How big are the micron radar

detectors?

A. Small, not big at all.

Q. Did you have any indication that Shad

had anything in his hands or had anything

in his hands when he got in the car?

A. When he went in the car and went up

the passenger seat I believe that he had

put something on the seat.

Q. In fact you went to the car and

knocked on the window; is that correct?

A. Yes.

Q. And you identified yourself?

A. Yes.

Q. And he identified himself?

A. I asked him to step out of the car

and give me the driver’s license.

Q. And he gave you the driver’s license?

A. Yes.

Q. And at that point in time there was

nothing on that person that you could

see?

A. That’s correct.

Q. And, in fact, you asked him why he

had been under the seat and he said,

putting the cassette in his cassette

player?

A. No.

Q. What did he tell you?

A. I can’t recall him saying the cassette

in the dash player.

Q. Or reaching to get a cassette, did he

tell you that?

A. I don‘t know. He could have.

Q. So he could have given you an

explanation of reaching under the seat,

you don’t recall?

A. Correct, I don’t recall what he told

me about that.

Q. You tken looked into the car, and to

see what vas in the car right, Officer.

5 EEE TR Bi ER Mint Bi a te Oi sa?

abraded dil inte

That’s correct.

And what you saw was a radar detector

in the car?

A. Underneath the seat and--

Q. And a flashlight?

A. Yes.

Q. And a Jackson Brown: cassette?

A. Cassette tape.

Q. And 30 other cassettes in the car?

A. Probably more than 30 in the trunk

area.

Q. And cassette player in the car?

Ae Yes.

Q. And you didn’t think it unusual that

evening for the car to have a cassette

player in it?

No.

Did you find it unusual for the car

to have a flashlight in it?

AO ©

Did you find it unusual for it to

have a radar detector in it?

A. No.

Q. Now, on that basis, you had gotten

Shad Lynds out of the car now and had you

ordered him to exit the car; is that

correct?

A. Yes.

Q. And did you search him at that time?

A. I don’t--I am not sure if I searched

his person at that time or not, I may

have.

Q. Wouldn’t you have searched him before

he got in the cruiser, isn’t that

standard?

A. Yes, sir.

Q. And did you search him before he got

in the cruiser, correct?

A. I must have.

Q. And I assume that you didn’t find

anything unusual?

A. Not on hin.

Q. “Right.

A. No.

PnP aE Der pepe

Q. And you placed him in the cruiser and

put him where he was, in essence, under

arrest at that time?

A. We had not placed him under arrest.

In fact, he went home that night.

Q. If he was place in the cruiser was he

free to leave the cruiser at that time?

A. Not at that time. -

Q. If he wasn’t free to leave the

cruiser, what was your purpose of putting

him in the cruiser, to secure him so he

wouldn’t leave?

A. At that time because of the cal] that

we had and the suspicions he was under he

was going to be detained for a while.

Q. Was involuntarily detained and placed

in the cruiser to accomplish this

purpose?

A. Yes, to complete the investigation.

Q. Up to that point, again according to

the report, you seen him get in the car

and reach under the seat and taken him

out of the car and determined that he was

the owner of the car and properly

presented to you a driver’s license, the

car was properly parked in an alley and

he was detained in the cruiser and up to

that point in time what you had observed

in the car was a radar detector, a

cassette tape and a flashlight?

A. Yes, they were wet. And I cannot say

it was properly parked. It is against

the law to black an alley.

Q. Was he charged?

A No.

Q. Was he detained for that purpose?

A No.

Q You then asked Shad if he would give

you permission to search the vehicle, did

you not?

A. I can’t recall asking for permission.

I didn’t feel that I needed it.

Q. Okay. Your report indicates that he

identified himself and you asked for his

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bi. Hae DA ARI at lin ls 88 I

driver’s license and he gave it to you

and he was secured in the cruiser and you

and Patrolman Butler check the vehicle

and actually search the inside of the

vehicle; is that correct?

A. Yes, and we located the wet radar

detector and the flashlight that was cool

after -- and after we located those items

we went on.

Q. From looking at the report it

appears--did you put this report in

chronological order?

A. I tried to--I tried to refer --

Q. What actually happened was in this

order: I requested his driver’s license

which he game me?

A. Yes.

Q. And Shad was secured in the cruiser,

next; is that correct?

A. Yes.

Q. And then Patrolman Lemley, which is

yourself, and Patrolman Butler check

Shad’s vehicle?

A. Yes.

Q. And that’s when under the passenger

Side front seat we located a radar

detector, a micron cassette, or however

you pronounce that, and cassette tape by

Jackson Brown. Both of these items were

wet?

A. Yes.

Q. And also located in the front a

Blackmag flashlight?

A. Yes.

Q. And the flashlight felt cool.

A. Yes.

Q. So you actually located these items

after Shad was secured in the cruiser; is

that right?

A. Yes.

;

ii vc eset ly sd

Q. And you didn’t see these items before

you secured him in the cruiser; is that

right?

A. That’s correct. There is a reason

for that.

Q. And chronologically what really

happened is that you go there, you get

Shad and you secure him and then you

search the car?

A. Yes.

Q. And that’s the first time upon

searching the car that you saw these

items?

A. Yes.

Q. And you did not have his permission

to search the car at that point in time,

did you.

A. No.

Q. After you searched the car, you and

Patrolman Butler, after you actually

searched the car and first found these

items and after Shad had been secured in

the cruiser by you, not allowed to leave

the area, then you took the keys and you

searched the trunk, did you not?

A. Yes.

Q. And again you didn’t have his

permission to search the trunk, did you?

A. No.

Q. And he object to you searching it?

A. Yes, he got highly upset when we went

into the trunk area.

Q. And at that point in time you

obtained additional items from the trunk?

A. Yes.

Q. I will hand you the Bill of

Particulars and ask you where you got

each of these items that is listed. Did

every item in the Bill of Particulars

come out of the car?

A. Yes.

Q. Okay. Of the three items that you

talked about previously, the radar

witinn --ala naitet No aa aod pci hte Atal nnn adele tie, acne ai

pbs Sls bss RC is a PR

detector and cassette tape and flashlight

listed in the Bill of Particulars.

A. The flashlight is not. The micron

radar detector is listed and the cassette

tapes.

Q. What about the Jackson Brown; is that

part--

A. It says cassette tapes. It doesn’t

list them.

Q. They came from inside the car and not

in plain view when you secured Shad; is

that correct?

A. That’s correct.

Q. Was there anything else on that Bill

of Particulars in this case that came

from inside the car?

A. The Whistler 200 radio and two rugs

and two blue car mats and two high school

letters and the radar detector taken from

the vehicle.

Q. They were not in plain sight at the

time that you secured Shad?

A. The rugs may have been on the

floorboards.

Q. Anything unusual?

A. Blue car mats were down by where the,

you know, where they belonged. They were

placed in the car.

Q. You could see the rugs and car mats?

A. At least the car mats, yeah.

Q. Okay. Wee the rest of the items that

are contained in the Bill of Particulars

found in the car taken from the trunk of

the car then?

A. Yeah, most of them were taken from

the trunk.

Q. And you had to obtain the keys and

actually open up the trunk?

A. Yes, it’s a hatchback.

Q. Nothing unusual about the trunk, is

there?

A. Not that I know. I didn’t notice

anything unusual.

Q. Could you see inside of the trunk

without opening it?

A. I can’t recall. Some of the cars that

you look down through the back window,

but a cover was over it but I couldn’t

see anything in the trunk until I opened

it.

Q. Okay. You then opened the trunk and

obtained the rest of the items that is

shown in the Bill of Particulars; is that

right?

A. Yes.

Q. Are there any other items on the Bill

of Particulars that were not taken from

Shad Lynds’ car that evening?

A. Are there any items on this that were

not taken from Shad Lynds’ car?

Q. Yes?

A. No.

Q. Okay. Now, after you had obtained all

of these items--was it before or after

you obtained these items that you read

Shad the Miranda Rights?

A. Once he was placed he called me back

over and wanted to say something and I

advised him of his constitutional rights

verbally at that time.

Q. Before or after?

A. Beforehand.

Q. When he opened the trunk.

A. He called me over and he wanted his

girlfriend to take the car.

Q. What rights, do you have a card or

something that you recite to him.

A. I didn’t read them.

Q. Did you cover all of them?

A. Foe Bar.

Q. And the first thing is, that I

recollect, is something you are now under

arrest; is that right?

A. No.

Q. What is--what did you advise SHad?

Pa EWARNO NA Aeadinieeviadn elk cAdSesoceaS poole

A. You have the right to remain silent.

A person does not have to be under arrest

to be advised of then.

Q. He was in custody at that time?

A. He was being detained.

Q. Okay. As a result of your having

obtained all of these that you have

listed on the Bill of Particulars and as

a result of having searched the vehicle,

you then went on and did more

investigation in this case; isn’t that

true?

A. Yes.

Q. Okay. And the investigation included

searching Shad’s apartment at a later

date?

A. Later that morning.

Q. Okay. And that was a result of

having searched and found these items of

his?

A. Correct.

Q. And also as a result of that you went

through the apartment and did you see

some items at the apartment?

A. The first time that we went to it we

were not allowed to enter it and the next

morning witn a search warrant and the

delayed time most of them were removed

and we did locate some that were stolen.

Q. And you retained those items and

this is a continuation of these events:

First, you see Shad and put him in

custody ane you search the car. As a

result of the search you determined that

you wanted to go to the apartment. As a

result of the search -- you get the

search warrant and search the apartment

and obtained some items there and you

talked to other people and obtained

statements from other people and get

further statements from other people as a

chain of these events; is that correct?

A. That’s correct.

Q. And all as a result of having search

the car and found these things that you

subsequently found everything else and

got statements from other people?

A. Yes, i did.

Q. And the only thing that Shad was

charged with was theft of these items, to

your knowledge?

A. Receiving stolen property.

Q. Receiving stolen property. He was

not charged with any offense involving

operating a motor vehicle, trespass or

anything else but receiving stolen

property. Any charge against Shad or any

reason against Shad was as a result of

this search; is that correct?

A. That’s correct.

Q. Okay. You didn’t have any warrant at

the time that you searched his car?

A. No, I did not.

Q. You had not sought any warrant that

time?

100

A. No, I did not.

Q. And every item that was in the Bill

of Particulars was seized actually at the

time that the car was taken from the

scene?

A. Yes, that’s correct.

Q. And even seized before Shad Lynds was

taken?

A. Yes.

Q. And probably seized from the few

minutes that you saw Shad Lynds?

A. Several minutes.

Q. Okay.

MR. GUSTAFSON: have no further

questions.

THE COURT: Redirect?

BY MR. MCCLAREN:

Q. Officer Lemley, why did you secure

Shad before searching the car?

A. Both Officer Butler and I entered the

car from the side and I didn’t know if he

101

Re NO EON

tl aie dR lal tte ideale cunenoe ee eee

tn eee.

would take off on me and I secured him in

there to stay.

MR. MCCLAREN: Thank you.

THE COURT: Recross?

MR. GUSTAFSON: Nothing.

THE COURT: Thank you. State have

anything further?

MR. MCCLAREN: No, Your Honor.

THE COURT: Defense want to present any

evidence?

MR. GUSTAFSON: Nothing, Your Honor.

THE COURT: Summation.

THEREUPON, Counsel presented closing

arguments.

THE COURT: I find there was legitimate

search made and the motion to suppress

the evidence is denied. That is it.

CERTIFICATF

This is to certify that the foregoing is

a true and accurate transcript of the

102

aforementioned matter as taken by Linda

S. McGee in stenotype and later

transcribed by a Computer Aided

Transcription System.

Lsl

SUSAN J. SWIND

Stenotype Reporter

225 Orange Street

Ashland, OH 44805

103

267 U.S. 132

CARROLL et al. v. UNITED STATES

(Reargued and Submitted March 14, 1924.

Decided March 2, 1925.)

Error to the District Court of the

United States for the Western District of

Michigan.

George Carroll and John Kiro were

convicted of transporting intoxicating

liquor, and they bring error. Affirmed.

This is a writ of error to the

District Court under section 238 of the

Judicial Code (Comp. St. Section 1215).

The Plaintiffs in error, hereafter to be

called the defendants, George Carroll and

John Kiro, were indicted and convicted

for transporting in an automobile

intoxicating spirituous liquor, to wit,

104

68 quarts of so called bonded whisky and

gin, in violation of the National

Prohibition Act (Comp. St. Ann. Supp.

1923, Section 10138 1/4 et seq.). The

ground on which they assail the

conviction is that the trial court

admitted in evidence two of the 68

bottles, one of whisky and one of gin,

found by searching the automebile. It is

contended that the search and seizure

were in violation of the Fourth

Amendment, and therefore that use of the

liquor as evidence was not proper.

Before the trial a motion was made by the

defendants that all the liquor seized be

returned to the defendant Carroll, who

owned the automobile. This motion was

denied.

The search and seizure were made by

Cronenwett, Scully, and Thayer, federal

prohibition agents, and one Peterson, a

state officer, in December, 1921, as the

105

car was going westward on the highway

between Detroit and Grand Rapids at a

point 16 miles outside of Grand Rapids.

The facts leading to the search and

seizure were as follows: On September

29th, Cronenwett and Scully were in an

apartment in Grand Rapids. Three men

came to that apartment, a man named

Kruska, and the two defendants, Carroll

and Kiro. Cronenwett was introduced to

them as one Stafford working in the

Michigan Chair Company in Grand Rapids,

who wished to buy three cases of whisky.

The price was fixed at $130 a case. The

three men said they had to go to the east

end of Grand Rapids to get the liquor and

that they would be back in half or three-

quarters of an hour. They went away, and

in a short time Kruska came back and said

they could not get it that night, that

the man who had it was not in, but that

they would deliver it the next day. They

106

had come to the apartment in an

automobile known as an Oldsmobile

roadster, the number of which Cronenwett

then identified, as did Scully. The

proposed vendors did not return the next

day, and the evidence disclosed no

explanation of their failure to do so.

One may surmise that it was suspicion of

the real character of the proposed

purchaser, whom Carroll subsequent called

by his first name when arrested in

December following. Cronenwett and his

subordinates were engaged in patrolling

the road leading from Detroit to Grand

Rapids, looking for violations of the

Prohibition Act. This seems to have been

their regular tour of duty. On the 6th

of October, Carroll and Kiro going

eastward from Grand Rapids in the same

Oldsmobile roadster, passed Cronenwett

and Scully some distance out from Grand

Rapids. Cronenwett call to Scully, who

107

was taking lunch, that the Carroll boys

had passed them going toward Detroit, and

sought with Scully to catch up with them

to see where they were going. The

officers followed as far as East Lansing,

half way to Detroit, but there lost trace

of them. On the 15th of December, some

two months later, Scully and Cronenwett,

on their Caguias tour of duty with

Peterson, the state officer, were going

from Grand Rapids to Ionia, on the road

to Detroit, when Kiro and Carroll met and

passed them in the same automobile,

coming from the direction of Detroit to

Grand Rapids. The government agents

turned their car and followed the

defendants to a point some 16 miles east

of Grad Rapids, where they stopped them

and searched the car. They found behind

the upholstering of the seats, the

filling of which had been removed, 68

bottles. These had labels on them, part

108

purporting to be certificates of English

chemists that the contents were blended

Scotch whiskeys,a nd the rest that the

contents were Gordon gin make in London.

When an expert witness was called to

prove the contents, defendants admitted

the nature of them to be whisky and gin.

When the defendants were arrested,

CArroll said to Cronenwett, "Take the

liquor and give us one more chance, and I

will make it right with you," and he

pulled out a roll of bills, of which one

was for $10. Peterson and another took

the two defendants and the liquor and the

car to Grand Rapids, while Cronenwett,

Thayer, and Scully remained on the road

looking for other cars, of whose coming

they had information. The officers were

not anticipating that the defendants

would be coming through on the highway at

that particular time, but when they met

them there they believed they were

109

carrying liquor, and hence the search,

seizure, and arrest.

Messers. Thomas E. Atkinson and Clare

J. Hall, both of Grand Rapids, Mich., for

plaintiffs in error.

The Attorney General and Mr. James M.

Beck, Sol. Gen, of Washington, D.C., for

the United States.

Mr. Chief Justice TAFT, after stating

the case as above, delivered the opinion

of the Court.

The constitutional and statutory

provisions involved in this case include

the Fourth Amendment and the National

Prohibition Act.

The Fourth Amendment is in part as

follows:

"The right of the people to be

secure in their persons, houses,

papers and effects against

unreasonable searches and seizures

shall not be violated, and no

warrants shall issue but upon

probable cause, supported by the

oath or affirmation, and

particularly describing the place

to be searched, and the persons or

things to be seized."

110

Section 25, title 2, of the National

Prohibition Act, c. 85, 41 Stat. 305,

315, passed to enforce the Eighteenth

Amendment, makes it unlawful to have or

possess any liquor intended for use in

violating the act, or which has bee so

used, and provides that no property

rights shall exist in such liquor. A

search warrant may issue and such liquor,

with the containers thereof, may be

seized under the warrant and be

ultimately destroyed. The section

further provides:

"No search warrant shall issue

to search any private dwelling

occupied as such unless it is being

used for the unlawful sale of

intoxicating liquor, or unless it

is in part used for some business

purpose such as a store, shop,

saloon, restaurant, hotel, or

boarding house. The term ‘private

dwelling’ shall be construed to

include the room or rooms used and

occupied not transiently but solely

as a residence in an apartment

house, hotel, or boarding house."

Section 26, title 2, under which the

seizure herein was made, provides in part

as follows:

When the commissioner, his

assistants, inspectors, or any

officer of the law shall discover

any person in the act of

transporting in violation of the

law, intoxicating liquors in any

wagon, buggy, automobile, water or

air craft, or other vehicle, it

shall be his duty to seize any and

all intoxicating liquors found

therein being transported contrary

to law. Whenever intoxicating

liquors transported or possessed

illegally shall be seized by an

officer ne shall take possession of

the vehicle and team or automobile,

boat, air or water craft, or any

other conveyance, and shall arrest

any person in charge thereof."

The section then provides that the

court upon conviction of the person so

arrested shall order the liquor

destroyed, and except for good cause

shown shall order a sale by public

auction of the other property seized, and

that the proceeds shall be paid into the

Treasury of the United States. By

section 6 of an act supplemental to the

112

National Prohibition Act (42 Stat. 222,

223, Cc. 134 [Comp. St. Ann. Supp. 1923,

Section 10184a]) it is provided that if

any officer or agent or employee of the

united States engaged in the enforcement

of the Prohibition Act or this Amendment,

"shall search any private dwelling,’ as

defined in that act, "without a warrant

directing such search,’ or "shall without

a search warrant maliciously and without

reasonable cause search any other

building or property,’ he shall be guilty

of a misdemeanor and subject to fine or

imprisonment or both.

In the passage of the supplemental act

through the Senate, amendment No. 32,

known as the Stanley Amendment, was

adopted, the relevant part of which was

as follows:

"Sec. 6. That any officer, agent or

employee of the United States

engaged in the enforcement of this

act or the United States, who shall

search or attempt to search the

property or premises of any person

without previously securing a

113

search warrant, as provided by law,

shall be guilty of a misdemeanor

and upon conviction thereof shall

be fined not to exceed $1,000, or

imprisoned not to exceed one year,

or both so fined and imprisoned in

the discretion of the court."

This amendment was object to in the

HOuse, and the judiciary committee, to

whom it was referred, reported to the

House of Representatives the following

a substitute:

"Sec. 6. That no officer, agent or

employee of the United States,

while engaged in the enforcement of

this act, the National Prohibition

Act, or any law in reference to the

manufacture or taxation of, or

traffic in, intoxicating liquor,

shall search any private dwelling

without a warrant directing such

search, and no such warrant shall

issue unless there is reason to

believe such dwelling is used as a

place in which liquor is

manufactured for sale or sold. The

term ‘private dwelling’ shall be

construed to include the room or

rooms occupied not transiently, but

solely as a residence in an

apartment house, hotel, or boarding

house. Any violation of any

provision of this paragraph shall

be punished by a fine of not to

exceed $1,000 or imprisonment not

to exceed one year,:.or both such

find and imprisonment, in the

discretion of the court."

114

In its report the committee spoke in

part as follows:

"It appeared to the committee that

the effect of the Senate amendment

No. 32, if agreed to by the House,

would greatly cripple the

enforcement of the National

Prohibition Act and would otherwise

seriously interfere with the

government in the enforcement of

many other laws, as its scope is

not limited to the prohibition law,

but applies equally to all laws

where prompt action is necessary.

There are on the statute books of

the united States a number of laws

authorizing search without a search

warrant. Under the common law and

agreeable to the Constitution

search may in many cases be legally

made without a warrant. The

Constitution does not forbid

search, as some parties contend,

but it does forbid unreasonable

search. This provision in regard

to search is as a rule contained in

the varicus state Constitutions,

but notwithstanding that fact

search without a warrant is

permitted in many cases, and

especially is that true in the

enforcement of liquor legislation.

"The Senate amendment prohibits all

search or attempt to search any

property or premises without a

search warrant. The effect of that

would necessarily be to prohibit

all search, as no search can take

place if it is not on some property

or premises.

115

"Not only does this amendment

prohibit search of any lands but it

prohibits the search of all

property. It will prevent the

search of the common bootlegger and

his stock in trade, though caught

and arrested in the act of

violating the law. But what is

perhaps more serious, it will make

it impossible to stop the run-

running automobiles engaged in like

illegal traffic. It would take

from the officers the power that

they absolutely must have to be of

any service, for if they cannot

search for liquor without a warrant

they might as well be discharged.

It is impossible to get a warrant

to stop an automobile. Before a

warrant could be secured the

automobile would be beyond the

reach of the officer with its load

of illegal liquor disposed of."

The conference report resulted, so far

as the difference between the two houses

was concerned, in providing for the

punishment of any officer, agent, or

employee of the government who searches a

"private dwelling" without a warrant, and

for the punishments of any such officer,

etc., who searches any "other building or

property’ where, and only where, he makes

the search without a warrant "maliciously

116

and without probable cause." In other

words, it left the way open for searching

an automobile or vehicle of

transportation without a warrant, if the

search was not malicious or without

probable cause.

[1] The intent of Congress to make a

distinction between the necessity for a

search warrant in the searching of

private dwellings and in that of

automobiles and other road vehicles in

the enforcement of the Prohibition Act is

thus clearly established by the

A legislative history of the Stanley

Amendment. Is such a distinction

consistent with the Fourth Amendment? We

think that it is. The Fourth Amendment

does not denounce all searches or

seizures, but only such as are

unreasonable.

The leading case on the subject of

search and seizure is Boyd v. United

117

States, 116 U.S. 616, 6 S. Ct. 524, 29 L.

Ed. 746. An Act of Congress of June 22,

1874 (18 Stat. 187), authorized a court

of the untied States in revenue cases, on

motion of the government attorney, to

require the defendant to produce in court

his private books, invoices, and papers

on pain in case of refusal of having the

allegations of the attorney in his motion

taken as confessed. This was held to be

unconstitutional and void as applied to

suits for penalties or to establish a

forfeiture of goods, on the ground that

under the Fourth Amendment the compulsory

production of invoices to furnish

evidence for forfeiture of goods

constituted an unreasonable search even

where made upon a search warrant, and was

also a violation of the Fifth Amendment,

in that it compelled the defendant in a

criminal case to produce evidence against

118

himself or be in the attitude of

confessing his guilt.

In Weeks v. United States, 232 U. S.

383, 34 S. Ct. 341, 58 L. EG. 652, Le R-

A. 19158, 837, Ann. Cas. 219168C, 1177, it

was held that a court in a criminal

prosecution could not retain letters of

the accused seized in his house, in his

absence and without his authority, by a

United States marshal holding no warrant

for his arrest and none for the search of

his premises, te be used as evidence

against him, the accused having made

timely application to the court for an

order for the return of the letters.

In Silverthorne Lumber Co. v. United

States, 251 U. S&S. 385, 40 S. Ct. 182, 64

L. Ed. 319, a writ of error was brought

to reverse a judgment of contempt of the

District Court, fining the company and

imprisoning one Silverthorne, its

president, until he should purge himself

119

of contempt in not producing books and

documents of the company before the grand

jury to prove violation of the statutes

of the United States by the company and

Silverthorne. Silverthorne had been

arrested, and while under arrest the

marshall had gone to the office of the

company without a warrant and made a

clean sweep of all books, papers, and

documents found there and had taken

copies and photographs of the papers.

The District court ordered the return of

the originals, but impounded the

photographs and copies. This was held to

be an unreasonable search of the property

and possessions of the corporation and a

violation of the Fourth Amendment and the

judgment for contempt reversed.

In Gouled v. United States, 255 U. S.

298, 41 S. Ct. 261, 65 L. Ed. 647, the

obtaining through stealth by a

representative of the government from the

120

office of one suspected of defrauding the

government of a paper which had not

pecuniary value in itself, but was only

to be used as evidence against its owner,

was held to be a violation of the Fourth

Amendment. It was further held that when

the paper was offered in evidence and

duly objected to it must be ruled

inadmissible because obtained through an

unreasonable search and seizure and also

in violation of the Fifth Amendment

because working compulsory incrimination.

In Amos v. United States, 255 U. S.

243, 41°83. Ct. 366, 65 L. BA. 694, it was

held that where concealed liquor was

found by government officers without a

search warrant in the home of the

defendant, in his absence, and after a

demand made upon his wife, it was

inadmissible as evidence against the

121

defendant, because acquired by an

unreasonable seizure.

In none of the cases cited is there

any ruling as to the validity under the

Fourth prenieners of a seizure without a

warrant of contraband goods in the course

of the transportation and subject to

forfeiture or destruction.

[2] On reason and authority the true

rule is that if the search and seizure

without a warrant are made upon probable

cause, that is, upon a belief, reasonably

arising out of circumstances known to the

seizing officer, that an automobile or

other vehicle contains that which by law

is subject to seizure and destruction,

the search and seizure are valid. The

Fourth Amendment is to be construed in

the light of what was deemed an

unreasonable search and seizure when it

was adopted, and in a manner which will

conserve public interests as well as the

122

interests and rights of individual

citizens.

In Boyd v. United States, 116 U. S.

616, 6 S. Ct. 524, 29 Le. EG. 746, as

already said, the decision did not turn

on whether a reasonable search might be

made without a warrant; but for the

purpose of showing the principle one

which the Fourth Amendment proceeds, ad

to avoid any misapprehension of what was

decided, the court, speaking through Mr.

Justice Bradley, used language which is

of particular significant and

applicability here. It was there said

(page 623 [6 S. Ct. 528]):

"The search for and seizure of

stolen or forfeited goods, or goods

liable to duties and concealed to

avoid the payment thereof, are

totally different things from a

search for and seizure of a man’s

private books and papers for the

purpose of obtaining information

therein contained, or of using them

as evidence against him. The two

things differ toto coelo. In the

one case, the government is

entitled to the possession of the

property; in the other it is not.

The seizure of stolen goods is

123

authorized by the common law; and

the seizure of goods forfeited for

a breach of the revenue laws, or

concealed to avoid the duties

payable on them, has been

authorized by English statutes for

at least two centuries past; and

the like seizures have been

authorized by our own revenue acts

from the commencement of the

government. The first statute

passed by Congress to regulate the

collection of duties, the Act of

July 31, 1789, 1 Stat. 29, 43,

contains provision to this effect.

As this act was passed by the same

Congress which proposed for

adoption the original amendments to

the Constitution, it is clear that

the members of that body did not

regard searches and seizures of

this kind as ‘unreasonable,’ and

they are not embraced within the

prohibition of the amendment. So,

also, the supervision authorized to

be exercised by officers of the

revenue over the manufacture or

custody of excisable articles, and

the entries thereof in books

required by law to be kept for

their inspection, are necessarily

excepted out of the category of

unreasonable searches and seizures.

So, also, the laws which provide

for the search and seizure of

articles and things which it is

unlawful for a person to have in

his possession for the purpose of

issue or disposition, such as

counterfeit coins, lottery tickets,

implements of gambling, etc., are

not within this category.

Commonwealth v. Dana, 2 Metc.

(Mass.) 329. Many other things of

124

this character might be

enumerated."

It is noteworthy that the twenty-

fourth section of the act of 1789 to

which the court there refers provides:

"That every collector, naval

officer and surveyor, or other

person specially appointed by

either of them for that purpose,

shall have full power and .

authority, to enter any ship or

vessel, in which they shall have

reason to suspect any goods, wares

or merchandise subject to duty

shall be concealed; and therein to

search for, seize, and secure any

such goods, wares or merchandise;

and if they shall have cause to

suspect a concealment thereof, in

any particular dwelling house,

store, building, or other place,

they or either of them shall, upon

application on oath or affirmation

to any justice of the peace, be

entitled to a warrant to enter such

house, store, or other place (in

the daytime only) and there to

search for such goods, and if any

shall be found, to seize and secure

the same for trial; and all such

goods wares and merchandise, on

which the duties shall not have

been paid or secured, shall be

forfeited." 1 Stat. 43.

Like provisions were contained in the

Act of August 4, 1790, c. 35, Sections

48-51, 1 Stat. 145, 170; in section 27 of

125

the Act of February 18, 1793, c. 8, 1

Stat. 305, 315; and in sections 68-71 of

the Act of March 2, 1799, c. 22, 1 Stat.

627, 677, 678.

Thus contemporaneously with the

adoption of the Fourth Amendment we find

in the First Congress, and in the

following Second and fourth Congresses, a

difference made as to the necessity for a

search warrant between goods subject to

forfeiture, when concealed in a dwelling

house or similar place, and like goods in

the course of transportation and

concealed in a movable vessel where they

readily could be put out of reach of a

search warrant. Compare Hester v. United

States, 265 U. S. 57, 44 S. Ct. 445, 68

L. Ed. 898.

Again, by the second section of the

Act of March 3, 1815, 3 Stat. 231, 232,

it was made lawful for customs officers,

not only to board and search vessels

126

within their own and adjoining districts,

but also to stop, search, and examine any

vehicle, beast, or person on which or

whom they should suspect there was

merchandise which was subject to duty or

had been introduced into the United

States in any manner contrary to law,

whether by the person in charge of

vehicle or beast or otherwise, and if

they should find any goods, wares or

merchandise thereon, which they had

probable cause to believe had been so

unlawfully brought into the country, to

seize and secure the same, and the

vehicle or beast as well, for trial and

forfeiture. This act was renewed April

27, 1816 (3 Stat. 315), for a year and

expired. The Act of February 28, 1865,

revived section 2 of the Act of 1815,

above described, 13 Stat. 441, C. 67.

The substance of this section was re-

enacted in the third section of the Act

127

of July 18, 1866, C. 201, 14 Stat. 178,

and was thereafter embodied in the

Revised Statutes as section 3061 (Comp.

St. Section 5763). Neither section 3061

nor any of its earlier counterparts has

ever been attacked as unconstitutional.

In deed, that section was referred to and

treated as operative by this court in

Cotzhausen v. Nazro, 107 U. S. 215, 219,

2S. Ct. 503, 27 1. EG. 540. See also,

United States v. One Black Horse (D C.)

129 F. 167.

Again by section 2140 oft he REvised

Statutes (Comp. St. Section 4141) any

Indian agent, subagent or commander of a

military post in the Indian country,

having reason to suspect or being

informed that any white person or Indian

is about to introduce, or has introduced,

any spirituous liquor or wine into the

Indian country, in violation of law, may

cause the boats, stores, packages,

128

wagons, sleds and places of deposit of

such person to be searched and if any

liquor is found therein, then it,

together with the vehicles, shall be

seized and and proceeded against by libel

in the proper court and forfeited.

Section 2140 was the outgrowth of the Act

of May 6, 1822, c. 58, 3 Stat, 682,

authorizing Indian agent to cause the

goods of traders in the Indian country to

be searched upon suspicion or information

that ardent spirits were being introduced

into the Indian country to be seized and

forfeited if found, and of the Act of

June 30, 1834, Section 20, c. 161, 4

Stat. 729, 732, enabling an Indian agent

having reason to suspect any person of

having introduced or being about to

introduce liquors into the Indian country

to cause the boat, stores or places of

deposit of such person to be searched and

the liquor found forfeited. This court

129

recognized the statute of 1822 as

justifying such a search and seizure in

American Fur Co. v. United States, 2 Pet.

358, 7 L. Ed. 450. By the Indian

Appropriation Act of March 2, 1917, c.

146, 39 Stat. 969, 970, automobiles used

in introducing or attempting to introduce

intoxicants into the Indian territory may

be seized, libeled, and forfeited as

provided in the REvised Statutes, Section

2140.

And again in Alaska, by section 174 of

the Act of March 3, 1899, c. 429, 30

Stat. 1253, 1280, it is provided that

collectors and deputy collectors or any

person authorized by them in writing

shall be given power to arrest persons

and seize vessels and merchandise in

Alaska liable to find, penalties, or

forfeiture under the act and to keep and

deliver the same, and the Attorney

130

General, in construing the act, advised

the government:

"If your agents reasonably suspect

that a violation of law has

occurred, in my opinion they have

power to search any vessel within

the three-mile limit according to

the practice of customs officers

when acting under section 3059 of

the REvised Statutes [Comp. St.

Section 5761], and to seize such

vessels." 26 Op. Attys. Gen. 243.

We have made a somewhat extended

reference to these statutes to show that

the guaranty of freedom from unreasonable

searches and seizures by the Fourth

Amendment has been construed, practically

Since the beginning of the government, as

recognizing a necessary difference

between a search of a store, dwelling

house, or other structure in respect of

which a proper official warrant readily

may be obtained and a search of a ship,

motor boat, wagon, or automobile for

contraband goods, where it is not

practicable to secure a warrant, because

the vehicle can be quickly moved out of

131

the locality or jurisdiction in which the

warrant must be sought.

Having this established that

contraband goods concealed and illegally

transported in an automobile or other

vehicle may be searched for without a

warrant, we come now to consider under .

what circumstances such search may be

made. It would be intolerable and

unreasonable if a prohibition rn were

authorized to stop every automobile on

the chance of finding liquor, and thus

subject all persons lawfully using the

highways to the inconvenience and

indignity of such a search. Travelers

may be so stopped in crossing an

international boundary because of

national self-protection reasonably

requiring one entering the country to

identify himself as entitled to come in,

and his belongings as effects which may

be lawfully brought in. But those

132

lawfully within the country, entitled to

use the public highways, have a right to

free passage without interruption or

search unless there is known to a

competent official authorized to search,

probable cause for believing that their

vehicles are carrying contraband or

illegal merchandise. Section 26, title

2, of the National Prohibition Act, like

the second section of the act of 1789,

for the searching of vessels, like the

provisions of the act of 1815, and

section 3601, Revised Statutes, for

searching vehicles for smuggled goods,

and like the act of 1822, and that of

1834 and section 2140, R. S., and the act

of 1917 for the search of vehicles and

automobile for liquor smuggled into the

INdian country, was enacted primarily to

accomplish the seizure and destruction of

contraband goods; secondly, the

automobile was to be forfeited; and,

133

. *

thirdly, the driver was to be arrested.

Under section 29, title 2, of the act the

latter might be punished by not more than

$500 find for the first offense, not more

than $1,000 find and 90 days’

imprisonment for the third offense. Thus

he is to be arrested for a misdemeanor

for his first and second offenses, and

for a felony if he offend the third time.

[3] The main purpose of the act

obviously was to deal with the liquor and

its transportation, and to destroy it.

The mere manufacture of liquor can do

little to defeat the policy of the

Eighteenth Amendment and the Prohibition

Act, unless the forbidden product can be

distributed for illegal sale and use.

Section 26 was intended to reach and

destroy the forbidden liquor in

transportation and the provisions for

forfeiture of the vehicle and the arrest

of the transporter were incidental. The

134

rule for determining what may be required

before a seizure may be made by a

competent seizing official is not to be

determined by the character of the

penalty to which the transporter may be

subjected. Under section 28, title 2, of

the Prohibition Act, the Commissioner of

Internal Revenue, his assistants, agents

and inspectors are to have the power and

protection in the enforcement of the act

conferred by the existing laws relating

to the manufacture or sale of

intoxicating liquors. Officers who seize

under section 26 of the Prohibition Act

are therefore protected by section 970 of

the Revised Statutes (Comp. St. Section

161), providing that:

"When, in any prosecution commenced

on account of the seizure of any

vessel, goods, wares, or

merchandise, made by any collector

or other officer, under any act of

Congress authorizing such seizure,

judgment is rendered for the

claimant, but it appears to the

court that there was reasonable

cause of seizure, the court shall

cause a proper certificate thereof

135

to be entered, and the claimant

shall not, in such case, be

entitled to costs, nor shall the

person who made the seizure, nor

the prosecutor, be liable to suit

or judgment on account of such suit

or prosecution: Provided, that the

vessel, goods, wares, or

merchandise be, after judgment,

forthwith returned to such claimant

or his agent."

[4] It follows from this that, if an

officer seizes an automobile or the

liquor in it without a warrant, and the

facts as subsequently developed do not

justify a judgment of condemnation and

forfeiture, the officer may escape costs

or a suit for damages by a showing that

he had reasonable or probable cause for

the seizure. Stacey v. Emery, 97 U. S.

642, 24 L. Ed. 1035. The measure of

legality of such a seizure is, therefore,

that the seizing officer shall have

reasonable or probable cause for

believing that the automobile which he

stops and seizes has contraband liquor

136

therein which is being illegally

transported.

We here find the line of distinction

between legal and illegal seizures of

liquor in transport in vehicles. It is

certainly a reasonable distinction. It

gives the owner of an automobile or other

vehicle seized under section 26, in

absence of probable cause, a right to

have restored to him the automobile, it

protects him under the Weeks and Amos

Cases form use of the liquor as evidence

against him, and it subjects the officer

making the seizures to damages. On the

other hand, in a case showing probable

cause, the government and its officials

are given the opportunity which they

should have, to make the investigation

necessary to trace reasonably suspected

contraband goods and to seize then.

Such a rule fulfills the guaranty of

the Fourth Amendment. In cases where the

137

securing of a warrant is reasonably

practicable, it must be used and when

properly supported by affidavit and

issued after judicial approval protects

the seizing officer against a suit for

damages. In cases where seizure is

impossible except without warrant, the

seizing officer acts unlawfully and at

his peril unless he can show the court

probable cause. United States v. Kaplan

(D. CC.) 286 F. 963, 972.

[5] But we are pressed with the

argument that if the search of the

automobile discloses the presence of

liquor and leads under the statute to the

arrest of the person in charge of the

automobile, the right of seizure should

be limited by the common law rule as to

the circumstances justifying an arrest

without a warrant for a misdemeanor. The

usual rule is that a police officer may

arrest without warrant one believed by

138

the officer upon reasonable case to have

been guilty of a felony, and that he may

only arrest without a warrant one guilty

of a misdemeanor if committed in his

presence. Kurtz v. Moffitt, 115 u. S.

487, 6 S. Ct. 148, 29 L. Ed. 458; John

Bad Elk v. United States, 177 U. S. 529,

20 S. Ct. 729, 44 L. Ed. 874. The rule

is sometimes expressed as follows:

"In cases of misdemeanor, a peace

officer like a private person has

at common law no power of arresting

without a warrant except when a

breach of the peace has been

committed in his presence or there

is reasonable ground for supposing

that a breach of peace is about to

be committed or renewed in his

presence." Halsbury’s Laws of

England, vol. 9, part. III, 612.

The reason for arrest for misdemeanors

without warrant at common law was

promptly to suppress breaches of the

peace (1 Stephen, History of Criminal

Law, 193), while the reason for arrest

without warrant on a reliable report of a

felony was because the public safety and

139

the due apprehension of criminals charged

iwth heinous offenses required that such

arrests should be made at once without

warrant (Rohan v. Sawin, 5 Cush. [Mass.]

281). The argument for defendants i

that, as the misdemeanor to justify

arrest without warrant must be committed

in the presence of the police officer,

the offense is not committed in his

presence unless he can by his senses

detect that the liquor is being

transported, no matter how reliable his

previous information by which he can

identify the automobile as loaded with

it. Biss v. Bose (Cc. Cc. As) 276. PF. 1233

Hughes v. State, 145 Tenn. 544, 238 S. W.

588, 20 A. L. R. 639.

[6] So it is that under the rule

contended for by defendants the liquor if

carried by one who has been already twice

convicted of the same offense may be

seized on information other than the

140

senses, while if he has been only once

convicted it may not be seized unless the

presence of the liquor is detected by the

senses at the automobile concealing it

rushes by. This is certainly a very

unsatisfactory line of difference when

the main object of the section is to

forfeit and suppress the liquur, the

arrest of the individual being only

incidental as shown by the lightness of

the penalty. See Commonwealth v. Street,

3 Pa. Dist. and Co. Ct. Rep. 783. In

England at the common law the differences

in punishment between felonies and

misdemeanors was very great. Under our

present federal statutes, it is much less

important and Congress may exercise a

relatively wide discretion in classing

particular offenses as felonies or

misdemeanors. As the main purpose of

section 26 was seizure and forfeiture, it

is not so much the owner as the property

141

that offends. Agnew V. Haymes, 141 F.

631, 641, 72 C. C. A. 325. The language

of the section provides for seizure when

the officer of the law "discovers" any

one in the act of transporting the liquor

by automobile or other vehicles.

Certainly it is a very narrow and

technical construction of this word which

would limit it to what the officer sees,

hears or smells as the automobile rolis

by and excludes therefrom when he

identifies the car the convincing

information that he may previously have

received as to the use of being made of

it.

[7, 8] We do not think such a nice

distinction is application in the present

case. When a man is legally arrested for

an offense, whatever is found upon his

person or in his control which it is

unlawful for him to have and which may be

used to prove the offense may be seized

142

and held as evidence in the prosecution.

Weeks v. United States, 232 U.S. 383,

392, 34 S. Ct. 341, 58 L. EG. 652, Le R.

A. 1915B, 834, Ann. Cas. 1915C, 1177;

Dillon V. O’Brien and Davis, 16 Cox, C.

C. 245; Getchell v. Page, 103 Me. 387, 69

A. 624, 18 L. R. A. (N. S.) 253, 125 Am.

St. Rep. 307; Kneeland v. Connally, 70

Ga. 424; 1 Bishop, Criminal Procedure,

Section 211; 1 Wharton, Criminal

Procedure (10th Ed.) Section 97. When

argument of defendants is based on the

theory that the seizure in this case can

only be thus justified. If their theory

were sound, their conclusion would be.

The validity of the seizure then would

turn wholly on the validity of the arrest

without a seizure. But the theory is

unsound. The right to search and the

validity of the seizure are not dependent

on the right to arrest. They are

dependent on the reasonable cause the

143

seizing officer has for belief that the

contents of the automobile offend against

the law. The seizure in such a

proceeding comes before the arrest as

section 26 indicates. It is true that

section 26, title 2, provides for

immediate proceedings against the person

arrested and that upon conviction the

liquor is to be destroyed and the

automobile or other vehicle is to be

sold, with the saving of the interest of

a lienor who does not know of its

unlawful use; but it is evident that if

the person arrested is ignorant of the

contents of the vehicle, or if he

escapes, proceedings can be had against

the liquor for destruction or other

disposition under section 25 of the same

title. The character of the offense for

which, after the contraband liquor is

found and seized, the driver can be

144

prosecuted does not affect the validity

of the seizure.

This conclusion is in keeping with the

requirements of the Fourth Amendment and

the principles of search and seizure of

contraband forfeitable property; and it

is a wise one because it leaves the rule

one which is easily applied and

understood and is uniform. Houck v.

State, 106 Ohio St. 195, 140 N. E. 112,

accords with this conclusion. Ash v.

United States (C. C. A.) 299 F. 277, and

Milam v. United States (C. C. A.) 296 F.

629, decisions by the Circuit Court of

Appeals for the Fourth Circuit take the

same view. The Ash Case is very similar

in its facts to the case at bar, and both

were by the same court which decided

Snyder v. United States (C. C. A.), 285

F. 1, cited for the defendants. See,

also, Park V. United States (lst C. C.

145

A.) 294 F. 776, 783, and Lambert v.

United States (9th C. C. A.) 282 F. 413.

[9] Finally, was there probable

cause? In The Apollon, 9 Wheat. 362, 6

L. Ed. 111, the question was whether the

seizure of a French vessel at a

particular place was upon probable cause

that she was there for the purpose of

smuggling. In this discussion Mr.

Justice Story, who delivered the judgment

of the court, said (page 374):

"It has been very justly

observed at the bar that the court

is bound to take notice of public

facts and geographical positions,

and that this remote part of the

country has been infested, at

different periods, by smugglers, is

matter of general notoriety, and

may be gathered from the public

documents of the government."

We know in this way that Grand Rapids

is about 152 miles from Detroit, and that

Detroit and its neighborhood along the

Detroit river, which is the international

boundary, is one of the most active

centers for introducing illegally into

146

this country spirituous liquors for

distribution into the interior. It is

obvious from the evidence that the

prohibition agents were engaged in a

regular patrol along the important

highways from Detroit to Grand Rapids to

stop and seize liquor carried in

automobiles. They knew or had convincing

evidence to make them believe that the

Carroll boys, as they called them, were

so-called "bootleggers" in Grand Rapids;

i.e., that they were engaged in plying

the unlawful trace of selling such liquor

in that city. The officers had soon

after noted their going from Grand Rapids

half way to Detroit, and attempted to

follow them to that city to see where

they went, but they escaped observation.

Two months later these officers suddenly

met the same men on their way westward

presumably from Detroit. The partners in

the original combination to sell liquor

147

in Grand Rapids were together in the same

automobile they had been in the night

when they tried to furnish the whisky to

the officers, which was thus identified

as part of the firm equipment. They were

coming from the direction of the great

source of supply for their stock to Grand

Rapids, where they plied their trade.

That the officers, when they saw the

defendants, believed that they were

carrying liquor, we can have no doubt,

and we think it is equally clear that

they had reasonable cause for thinking

so. Emphasis is put by defendants’

counsel on the statement made by one of

the officers that they were not looking

for defendants at the particular time

when they appeared. We do not perceive

that it has any weight. As soon as they

did appear, the officers were entitled to

use their reasoning faculties upon all

148

the facts of which they had previous

knowledge in respect to the defendants.

The necessity for probable cause in

justifying seizures on land or sea, in

making arrests without warrant for past

felonies, and in malicious prosecution

and false imprisonment cases has lead to

frequent definition of the phrase. In

Stacey v. Emery, 97 U. S. 642, 645 (24 L.

Ed. 1035), a suit for damages for seizure

by a collector, this court defined

probable cause as follows:

"If the facts and

circumstances before the officer

are such as to warrant a man of

prudence and caution in believing

that the offense has been

committed, it is sufficient."

See Locke v. United States, 7 Cranch,

339, 3 L. Ed. 364; The Geoerge, 1 Mason,

24, Fed. Cas. No. 5328; The Thompsons, 3

Wali. i55, 18 L. Ea. 55.

It was laid down by Chief Justice

Shaw, in Commonwealth vy. Carey, 12 Cush,

246, 251, that:

149

"Tf a constable or other peace

officer arrest a person without a

warrant, he is not bound to show in

his justification a felony actually

committed, to render the arrest

lawful; but if he suspects one on

his own knowledge of facts, or on

facts communicated to him by

others, and thereupon he has

reasonable ground to believe that

the accused has been guilty of

felony, the arrest is not

unlawful." Commonwealth v. Phelps,

209 Mass. 396, 95 N. E. 868, Ann.

Cas. 1912B, 566; Rohan v. Sawin, 5

Such. 261,: 265.

In McCarthy v. De Armit, 99 Pa. 63,

the Supreme Court of Pennsylvania sums up

the definition of probable cause in this

way (page 69):

"The substance of all the

definitions is a reasonable ground

for belief of guilt."

In the case of the Director General v.

Castenbaum, 263 U. S. 25, 44 S. Ct. 52,

68 L. Ed. 146, which was a suit for false

imprisonment, it was said by this court

(page 28 [44 S. Ct. 53]):

"But, as we have seen, good

faith is not enough to constitute

probable cause. That faith must be

grounded on facts within knowledge

of the Director General’s agent,

150

which in the judgment of the court

would make his faith reasonable."

See, also, Munn v. De Nemours, 3 Wash.

Cc. C. 37, Fed. Cas. Bo. 9926.

In the light of these authorities, and

what is shown by this record, it is clear

that the officers here had jurisdiction

for the search and seizure. This is to

say that the facts and circumstances

within their knowledge and of which they

had reasonably trustworthy in formation

were sufficient in themselves to warrant

a man of reasonable caution in the belief

that intoxicating liquor was being

transported in the automobile which they

stopped and searched.

[10] Counsel finally argue that the

defendants should be permitted to escape

the effect of the conviction because the

court refused on motion to deliver them

the liquor when, as they say, the

evidence adduced on the motion was much

less than that shown on the trial, and

151

did not show probable cause. The record

does not make it clear what evidence was

produced in support of or against the

motion. But, apart from this, we think

the point is without substance here. If

the evidence given on the trial was

sufficient, as we think it was, to

sustain the introduction of the liquor as

evidence, it is immaterial that there was

an inadequacy of evidence when

application was made for its return. A

conviction on adequate and admissible

evidence should not be set aside on such

a ground. The whole matter was gone into

at the trial, so no right of the

defendants was infringed.

Counsel for the government contend

that Kiro, the defendant who did not own

the automobile, could not complain of the

violation of the Fourth Amendment in the

use of the liquor as evidence against

him, whatever the view taken as to

152

Carroll’s rights. Our conclusion as to

the whole case makes it unnecessary for

us to discuss this aspect of it.

The judgment is affirmed.

Mr. Justice MCKENNA, before his

retirement, concurred in this option.

The separate option of Mr. Justice

MCREYNOLDS.

1. The damnable character of the

"bootlegger’s" business should not close

our eyes to the mischief which will

surely follow any attempt to destroy it

by unwarranted methods. "To press

forward to a great principle by breaking

through every other great principle that

stands in the way of its establishment; *

* * in short, to procure an eminent good

by means that are unlawful is as little

consonant to private morality as to

public justice." Sir William Scott, The

Le Louis, 2 Dodson, 210, 257.

1$3

While quietly driving an ordinary

automobile along a much frequented public

road, plaintiffs in error were arrested

by federal officers without a warrant and

upon mere suspicion - ill-founded, as I

think. The officers then searched the

machine and discovered carefully secreted

whisky, which was seized and thereafter

used as evidence against plaintiffs in

error when on trial for transporting

intoxicating liquor contrary to the

Volstead Act. 41 Stat. 305, c. 85. They

maintain that both arrest and seizure

were unlawful and that use of the liquor

as evidence violated their constitutional

rights.

This is not a proceeding to forfeit

seized goods; nor is it an action against

the seizing officer for a tort. Cases

like the following are not controlling:

Crowell v. McFadon, 8 Cranch, 94, 98, 3

L. Ed. 499; United States v. 1960 Bags of

154

Coffee, 8 Cranch, 398, 403, 405, 3 L. Ed.

602; Otis v. Watkins, 9 Cranch, 339, 3 L.

Ed. 752; Gelston v. Hoyt, 3 Wheat, 245,

310, 318, 4 L. Ed. 381; Wood v. United

States, 16 Pet. 342, 10 381; Wood v.

United States, 16 Pet. 342, 10 L. Ed.

987; Taylor v. United States, 3 How. 197,

205, 11 L. Ed. 559. They turned upon

express provisions of applicable acts of

Congress; they did not involve the point

now presented and afford little, if any,

assistance toward its proper solution.

The Volstead Act does not, in terms,

authorize arrest or seizure upon mere

suspicion.

Whether the officers are shielded from

prosecution or action by Rev. Stat.

Section 970, is not important. That

section does not undertake to deprive the

citizen of any constitutional right or to

permit the use of evidence unlawfully

obtained. it does, however, indicate the

155

clear understanding of Congress that

probable cause is not always enough to

justify a seizure.

Nor are we now concerned with the

question whether by apt words Congress

might have authorized the arrest without

a warrant. It has not attempted to do

this. On the contrary, the whole history

of the legislation indicates a fixed

purpose not so to do. First and second

violations are declared to be

misdemeanors - nothing more - and

Congress, of course, understood the rule

concerning arrests for such offenses.

Whether different penalties should have

been prescribed or other provisions added

is not for us to inquire; nor do

difficulties attending enforcement give

us power to supplement the legislation.

2. As the Volstead Act contains no

definite grant of authority to arrest

upon suspicion and without warrant for a

156

first offense, we come to inquire whether

such authority can be inferred from this

provisions.

Unless the statute which creates a

misdemeanor contains some clear provision

to the contrary, suspicion that it is

being violated will not justify an

arrest. Criminal statutes must be

strictly construed and applied, in

harmony with rules of the common law.

United States v. Harris, 177, U. S. 305,

310, 20 S. Ct. 609, 44 L. Ed. 780. And

the well-settled doctrine is that an

arrest for a misdemeanor may not be made

without a warrant unless the offense is

committed in the officer’s presence.

Kurtz v. Moffitt, 115 U. S. 487, 498,

6 S. Ct. 148, 152 (29 L. Ed. 458):

"By the common law of England,

neither a civil officer nor a

private citizen had the right

without a warrant to make an arrest

for a crime not committed in his

presence, except in the case of

felony, and then only for the

purpose of bringing the offender

before a civil magistrate."

157

Ss.

Ed.

John Bad Elk v. United States, 177 U.

$29, 534, 20 S. Ct. 729, 731 (44 L.

874):

"An officer, at common law,

was not authorized to make an

arrest without a warrant, for a

mere misdemeanor not committed in

his presence."

Commonwealth v. Wright, 158 Mass. 149,

158, 33 N. E. 92, 95 (19 L. R. A. 206, 35

Am. St. Rep. 475):

"It is suggested that the

statutory misdemeanor of having in

one’s possession short lobsters

with intent to sell them is a

continuing offence, which is being

committed while such possession

continues, and that therefore an

officer who sees any person in

possession of such lobsters with

intent to sell them can arrest such

person without a warrant, as for a

misdemeanor committed in his

presence. We are of opinion,

however, that for statutory

misdemeanors of this kind, not

amounting to a breach of the peace,

there is no authority in an officer

to arrest without a warrant, unless

it is given by statute. * * *

The Legislature has often empowered

officers to arrest without a

warrant for similar offenses, which

perhaps tends to show that, in its

158

opinion, no such right exists at

common law."

Pinkerton v. Verberg, 78 Mich, 573,

584, 44 N. W. 579, 582 (7 L. R. A. 507,

18 Am. St. Rep. 473):

"Any law which would place the

keeping and safe-conduct of another

in the hands of even a conservator

of the peace, unless for some

breach of the peace committed in

his presence, or upon suspicion of

felony, would be most oppressive

and unjust, and destroy all the

rights which our Constitution

guarantees. These are rights which

existed long before our

Constitution, and we have taken

just price in their maintenance,

making them a part of the

fundamental law of the land." "If

persons can be restrained of their

liberty, and assaulted and

imprisoned, under such

circumstances, without complaint or

warrant, then there is no limit to

the power of a police officer."

3. The Volstead Act contains no

provision which annuls the accepted

common-law rule or discloses definite

intent to authorize arrests without

warrant for misdemeanors not committed in

the officer’s presence.

159

To support the contrary view section

is relied upon:

"When * * * any officer of the

law shall discover any person in

the act of transporting in

violation of the law, intoxicating

liquors in any wagon, buggy,

automobile, water or air craft, or

other vehicle, it shall be his duty

to seize any and all intoxicating

liquors found therein being

transported contrary to law.

Whenever intoxicating liquors

transported or possessed illegally

shall be seized by an officer he

shall take possession of the

vehicle and team or automobile,

boat, air or water craft, or any

other conveyance, and shall arrest

any person in charge thereof."

Let it be observed that this section

has no special application to

automobiles; it includes any vehicle -

buggy, wagon, boat, or air craft.

Certainly, in a criminal statute, always

to be strictly construed, the words

"shall discovery * * * in the act of

transporting in violation of the law"

cannot mean shall have reasonable cause

transportation is being carried on.

suspect or believe that such

160

discover and to suspect are wholly

different things. Since the beginning

apt words have been used when Congress

intended that arrests for misdemeanors or

seizures might be made upon suspicion.

It has studiously refrained from making a

felony of the offense here charged; and

it did not undertake by any apt words to

enlarge the power to arrest. It was not

ignorant of the established rule on the

subject, and well understood how this

could be abrogated, as plainly appears

from statutes like the following:

"An act to regulate the

collection of duties on imports and

tonnage," approved March 2, 1789, 1

Stat. 627, 677, 678, c. 22; "An act

to provide more effectually for the

collection of the duties imposed by

law on goods, wares and merchandise

imported into the United States,

and on the tonnage of ships or

vessels," approved August 4, 1790,

1 Stat. 145, 170, c. 35; "An act

further to provide for the

collection of duties on imports and

tonnage," approved March 3, 1815, 3

Stat. 231, 232, ¢. 9.

161

These and similar acts definitely

empowered officers to seize upon

suspicion and therein radically differ

from the Volstead Act, which authorized

no such thing.

"An act supplemental to the National

Prohibition Act," approved November 23,

1921, 42 Stat. 222, 223, c. 134,

provides:

"That any officer, agent, or

employee of the United States

engaged in the enforcement of this

act, or the National Prohibition

Act, or any other law of the United

States, who shall search any

private dwelling as defined in the

National Prohibition Act, and

occupied as such dwelling, without

a warrant directing such search, or

who while so engaged shall without

a search warranty maliciously and

without reasonable cause search any

other building or property, shall

be guilty of a misdemeanor and upon

conviction thereof shall be fined a

first offense not more than $1,000,

and for a subsequent offense not

more than $1,000 or imprisoned not

more than one year, or both such

fine and imprisonment."

And it is argued that the words and

history of this section indicate the

162

intent of Congress to distinguish between

the necessity for warrants in order to

search private dwelling and the right to

search automobiles without one.

Evidently Congress regarded the searching

of private dwellings as matter of much

graver consequence than some other

searches and distinguished between them

by declaring the former criminal. But

the connection between this distinction

and the legality of plaintiffs in error’s

arrest is not apparent. Nor can I find

reason for inquiring concerning the

validity of the distinction under the

Fourth Amendment. Of course, the

distinction is valid, and so are some

seizures. But what of it? The act made

nothing legal which theretofore was

unlawful, and to conclude that by

declaring the unauthorized search of a

private dwelling criminal Congress

intended to remove any ancient

163

restrictions from other searches and from

arrests as well, would seem impossible.

While the Fourth Amendment denounces

only unreasonable seizures

unreasonableness often depends upon the

means adopted. Here the seizure followed

an unlawful arrest, and therefore became

itself unlawful - as plainly unlawful as

the seizure within the home so vigorously

denounced in Weeks v. United States, 232

U. S. 383, 391, 392, 393, 34 S. Ct. 341,

58 L. Ed. 652, L. R. A. 1915B, 834, Ann.

Cas. 1915C, i177.

In Snyder v. United States, 285 F. 1,

2, the Court of Appeals, Fourth Circuit,

rejected evidence obtained by an

unwarranted arrest, and clearly announced

some very wholesome doctrine:

"That an officer may not make

an arrest for a misdemeanor not

committed in his presence, without

a warrant, has been so frequently

decided as not to require citation

of authority. It is equally

fundamental that a citizen may not

be arrested on suspicion of having

committed a misdemeanor and have

164

his person searched by force,

without a warrant of arrest. If,

therefore, the arresting officer in

this case had no other

justification for the arrest than

the mere suspicion that a bottle,

only the neck of which he could see

protruding from the pocket of

defendant’s coat, contained

intoxicating liquor, then it would

seem to follow without much

question that the arrest and

search, without first having

secured a warrant, were illegal.

And that his only justification was

his suspicion is admitted by the

evidence of the arresting officer

himself. If the bottle had been

empty or if it had contained any

one of a dozen innoxious liquids,

the act of the officer would,

admittedly, have been an unlawful

invasion of the personal liberty of

the defendant. That it happened in

this instance to contain whisky, we

think, neither justifies the

assault nor condemns the principle

which makes such an act unlawful."

The validity of the seizure under

consideration depends on the legality of

the arrest. This did not follow the

seizure, but the reverse is true.

Plaintiffs in error were first brought

within the officers’ power, and, while

therein, the seizure took place. If an

officer, upon mere suspicion of a

165

misdemeanor, may stop one on the public

highway, take articles away from him and

thereafter use them as evidence to

convict him of crime, what becomes of the

Fourth and Fifth Amendments?

In Weeks v. United States, supra,

through Mr. Justice Day, this court said:

"The effect of the Fourth

Amendment is to put the courts of

the United States and federal

officials, in the exercise of their

power and authority, under

limitations and restrains as to the

exercise of such power and

authority, and to forever secure

the people, their persons, houses,

papers and effects against all

unreasonable searches and seizures

under the guise of law. This

protection reaches all alike,

whether accused of crime or not,

and the duty of giving to it force

and effect is obligatory upon all

entrusted under our federal system

with the enforcement of the laws.

The tendency of those who execute

the criminal laws of the country to

obtain conviction by means of

unlawful seizures and enforced

confessions, the latter often

obtained after subjecting accused

persons to unwarranted practices

destructive of rights secured by

the federal Constitution, should

find no sanction in the judgments

of the courts which are charged at

all times with the support of the

Constitution and to which people of

166

all- conditions have a right to

appeal for the maintenance of such

fundamental rights. * * * The

efforts of the courts and their

officials to bring the guilty to

punishment, praiseworthy as they

are, are not to be aided by the

sacrifice of those great principles

established by years of endeavor

and suffering which have resulted

in their embodiment in the

fundamental law of the land."

Silverthorne Lumber Co. v. United

States, 251 U. S. 385, 40 S. Ct. 182, 64

L. Ed. 319:

"The proposition could not be

presented more nakedly. It is that

although of course its seizure was

an outrage which the government now

regrets, it may study the papers

before it returns them, copy then,

and then may use the knowledge that

it has gained to call upon the

owners in a more regular form to

produce them; that the protection

of the Constitution covers the

physical possession but not any

advantages that the government can

gain over the object of its pursuit

by doing the forbidden act. Weeks

v. United States, 232 U. S. 383, to

be sure, had established that

laying the papers directly before

the grand jury was unwarranted, but

it is taken to mean only that two

steps are required instead of one.

In our opinion such is not the law.

It reduces the Fourth Amendment to

a form of words. 232 U. S. 393.

The essence of a provision

forbidding the acquisition of

167

evidence in a certain way is that

not merely evidence so acquired

shall not be used before the court

but that it shall not be used at

all. Of course this does not mean

that the facts thus obtained become

sacred and inaccessible. If

knowledge of them is gained from an

independent source they may be

proved like any others, but the

knowledge gained by the

government’s own wrong cannot be

used it in the way proposed."

Gouled v. United States, 255 U. S.

298, 41 3. Ces 261, 6S L. BA. 647, and

Amos v. United States, 255 U. S. 313, 41

S. Ct. 266, 65 L. Ed. 654, distinctly

point out that property procured by

unlawful action of federal officers

cannot be introduced as evidence.

The arrest of plaintiffs in error was

unauthorized, illegal, and violated the

guaranty of due process given by the

Fifth Amendment. The liquor offered in

evidence was obtained by the search which

followed this arrest and was therefore

obtained in violation of their

constitutional rights. Articles found

168

upon or in the control of one lawfully

arrested maybe used as evidence for

certain purposes, but not at all when

secured by the unlawful action of a

federal officer.

4. The facts known by the officers

who arrested plaintiffs in error were

wholly insufficient to create a

reasonable belief that they were

transporting liquor contrary to law.

These facts were detailed by Fred

Cronenwett, chief prohibition officer.

His entire testimony as given at the

trial follows:

"I am in charge of the federal

prohibition department in this

district. I am acquainted with

these two respondents, and first

saw them on September 29, 1921, in

Mr. Scully’s apartment on Oakes

street, Grand Rapids. There were

three of them that came to Mr.

Scully’s apartment, one by the name

of Kruska, George Kiro, and John

Carroll. I was introduced to them

under the name of Stafford, and

told them I was working for the

Michigan Chair Company, and wanted

to buy three cases of Whisky, and

the price was agreed upon. After

they thought I was all right, they

169

said they would be back in half or

three-quarters of an hour; that

they had to go out to the east end

of Grand Rapids to get this liquor.

They went away and came back in a

short time, and Mr. Kruska came

upstairs and said they couldn’t get

it that night; that a fellow by the

name of Irving, where they were

going to get it, wasn’t in, but

they were going to deliver it the

next day, about ten. They didn’t

deliver it the next day. I am not

positive about the price. It seems

to me it was around $130 a case.

It might be $135. Both respondents

took part in this conversation.

When they came to Mr. Scully’s

apartment they had this came car.

While it was dark and I wasn’t able

to get a good look at this car,

later, on the 6th day of October,

when I was out on the road with Mr.

Scully, I was waiting on the

highway while he went to Reed’s

Lake to get a light lunch, and they

drove by, and I had their license

number and the appearance of their

car, and knowing the two boys,

seeing them on the 29th day of

September, I was satisfied when I

seen the car on December 15th it

was the same car I had seen on the

6th day of October. On the 6th day

of October it was probably twenty

minutes before Scully got back to

where I was. I told him the

Carroll boys had just gone toward

Detroit and we were trying to catch

up with them and see where they

were going. We did catch up with

them somewhere along by Ada, just

before we got to Ada, and followed

them to East Lansing. We gave up

the chase at East Lansing.

170

"On the i5th day of December,

when Peterson and Scully and I

overhauled this car on the road, it

was in the country, on Pike 16, the

road leading between Grand Rapids

and Detroit. When we passed the

car we were going toward Ionia, or

Detroit, and the Kiro and Carroll

boys were coming towards Grand

Rapids when Mr. Scully and I

recognized them and said, ‘There

goes the Carroll brothers,’ and we

were going and turned around and

went back to them - drove up to the

side of them. Mr. Scully was

driving the car; I was sitting in

the front seat, and I stepped out

on the running board and held out

my hand and said, ‘Carroll, stop

that car,’ and they did stop it.

John Kiro was driving the car.

After we got them stopped, we asked

them to get out of the car, which

they did. Carroll referred to me,

and called me by the name of

‘Fred.’ just as soon as I got up to

him. Raised up the back part of

the roadster; didn’t find any

liquor there; then raised up the

cushion; then I struck at the

lazyback of the seat and it was

hard. I then started to open it

up, and I did tear the cushion

some, and Carroll said, ‘Don’t tear

the cushion; we have only got six

cases in there,’ and I took out two

bottles and found out it was

liquor; satisfied it was liquor.

Mr. Peterson and a fellow by the

name of Gerald Donker came in with

the two Carroll boys and the liquor

and the car to Grand Rapids. They

brought the two defendants and the

car and the liquor to Grand Rapids.

171

ee, ee UTNE: (RRS cern

I and the other men besides

Peterson stayed out on the road,

looking for other cars that we had

information were coming in. There

was conversation between me and

Carroll before Peterson started for

town with the defendants. Mr.

Carroll said, ‘Take the liquor, and

give us one more chance, and I will

make it right with you.’ At the

same time he reached in one of his

trousers pickets and pulled out

money; the amount of it I don’t

know. I wouldn’t say it was a

whole lot. I saw a $10 bill and

there was some other bills; I don’t

know how much there was; it wasn’t

a large amount.

"As I understand, Mr. Hanley

helped carry the liquor from the

car. On the next day afterwards,

we put this liquor in boxes, steel

boxes, and left it in the marshal’s

vault, and it is still there now.

Mr. Hanley and Chief Deputy

Johnson, some of the agents and

myself were there. Mr. Peterson

was there the next day that the

labels were signed by the different

officers; those two bottles,

Exhibits A and B.

"QO. Now, those two bottles,

Exhibits A and B, were those the

two bottles you took out of the car

out there, or were those two

bottles taken out of the liquor

after it got up here? A. We

didn’t label them out on the road;

Simply found it was liquor and sent

it in; and this liquor was in Mr.

Hanley’s custody that evening and

during the middle of the next day

when we checked it over to see the

172

amount of liquor that was there.

Mr. Johnson and I sealed the

bottles, and Mr. Johnson’s name is

on the label that goes over the

bottle with mine, and this liquor

was taken out of the case today.

It was taken out for the purpose of

analyzation. The others were not

broken until today.

"QO. And are you able to tell

us, from the label and from the

bottles, whether it is part of the

same liquor taken out of the car?

A. It has the appearance of it;

yes, sir. Those are the bottles

that were in there that Mr. Hanley

said was gotten out of the Carroll

car.*:3

Cross-examination: ‘

"I think I was the first one

to get back to the Carroll car

after it was stopped. I had a gun

in my pocket; I didn’t present it.

I was the first one to the car and

raised up the back of the car, but

the others were there shortly

afterward. We assembled right

around the car immediately.

"QO. And whatever examination

and what investigation you made you

went right ahead and did it in your

own way? A. Yes, sir.

"Q. And took possession of

it, arrested them, and brought

them? A. Yes, sir.

"QO. And at that time, of

course, you had no search warrant?

A. No, sir. We had no knowledge

173

that this car was coming through at

that particular time.

Redirect examination:

"The lazyback was awfully hard

when I struck it with my fist. It

was harder than upholstery

ordinarily is in those backs; a

great deal harder. It was

practically solid. Sixty-nine

quarters of whisky in one

lazyback."

The negotiation concerning three cases

of whisky on September 29th was the only

circumstance which could have subjected

plaintiffs in error to any reasonable

Suspicion. No whisky was delivered, and

it is not certain that they ever intended

to deliver any. The arrest came 2 1/2

months after the negotiation. Every act

in the meantime is consistent with

complete innocence. Has it come about

that merely because a man once agreed to

deliver whisky, but did not, he may be

arrested whenever thereafter he ventures

to drive an automobile on the road to

Detroit!

174

———

5. When Congress has intended that

seizures or arrests might be made upon

suspicion it has been careful to say so.

The history and terms of the Volstead Act

are not consistent with the suggestion

that it was the purpose of Congress to

grant the power here claimed for

enforcement officers. The facts known

when the arrest occurred were wholly

insufficient to engender reasonable

belief that plaintiffs in error were

committing a misdemeanor, and the

legality of the arrest cannot be

supported by facts ascertained through

the search which followed.

To me it seems clear enough that the

judgment should be reversed.

I am authorized to say that Mr.

Justice SUTHERLAND concurs in this

opinion.

175

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