United States v. Gerald Malone Van Horn , 396 F.2d 505 ( 1968 )

396 F.2d 505

UNITED STATES of America, Appellee,
v.
Gerald Malone VAN HORN, Appellant.

No. 11824.

United States Court of Appeals Fourth Circuit.

Argued March 4, 1968.
Decided June 7, 1968.

Joe K. Byrd, Morganton, N.C. (Byrd, Byrd & Ervin, Morganton, N.C., on brief), for appellant.

Wm. Medford, U.S. Atty., (William M. Styles, Asst. U.S. Atty., on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, CRAVEN, Circuit Judge, and MacKENZIE, District Judge.

PER CURIAM:

1

Appellant Gerald Malone Van Horn attacks the sufficiency of the affidavit upon which was issued on May 3, 1967 a search warrant authorizing the search of appellant's residence and the seizure of certain incriminating evidence found therein. We find the affidavit sufficient to establish the validity of the warrant.

2

The affiant, an Alcoholic Beverage Control officer, stated in the affidavit, (1) that an informant who had given him reliable information in the past had on April 12, 1967 informed him that he had observed 'non-taxpaid whiskey' at appellant's residence and also had seen a truck loaded with sugar go to the residence; (2) the officer had on several occasions observed appellant's residence and had seen an 'unusual amount of traffic' entering and leaving; and (3) that on one occasion the officer had detected the odor of whiskey and mash coming from the residence. Under the principles enunciated in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, and McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, these statements provided the magistrate with probable cause for the issuance of the warrant. Therefore, the evidence obtained by means of a search pursuant to the warrant was properly admitted into evidence.

3

Upon notice of appeal appellant's sentence was amended by the District Court. On motion of appellant with the concurrence of appellee and the District Court, the amendment is vacated and the original sentence is hereby reinstated.

4

Conviction affirmed; amendment of original sentence vacated.