Schulte v. United States , 11 F.2d 105 ( 1926 )

BRYAN, Circuit Judge.

Fred Schulte was convicted of manufacturing liquor and having in his possession apparatus designed for the manufacture thereof, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 1013814 et seq.).

He assigns as error the court’s refusal to suppress the testimony of two prohibition officers, who went upon his premises without a search warrant and there found where he had been operating a still and manufacturing whisky in one end of a small building, the other end of which was cut off by a partition and used as a garage. This building was separate and apart from defendant’s dwelling house. The officers testified that they detected the odor of mash before they entered defendant’s premises; that they then went into his back yard, where he was, and where they found a pool of mash; that one of them asked defendant what he was doing there, and he replied that he “was making whisky,” and voluntarily took them into the building where the still was. No search of defendant’s dwelling house was made or even attempted.

Under these eireiimstanees, proof of the search and seizure was admissible, even though the doubtful concession be made that the officers were trespassers. Hester v. United States, 44 S. Ct. 445, 265 U. S. 57, 68 L. Ed. 898. Defendant relies on Agnello v. United States, 46 S. Ct. 4, 70 L. Ed. 1. In that case it was held that the search of Agnello’s premises without a search warrant was unlawful. But the officers invaded Agnello’s dwelling house without á search warrant and without themselves having witnessed a violation of the law. However, the right of the officers to enter without a search warrant the home of Alba, one of the defendants in the cited case, and to seize cocaine the illegal sale of which they saw take place while they were looking through a window of Alba’s house, was upheld, the court saying: “Such searches and seizures naturally and usually appertain to and attend such arrests.” If Alba’s home could be entered without a search warrant and cocaine there found be used as evidence, it must necessarily follow that defendant’s garage could be entered without a search warrant by the officers who caught him violating the prohibition law.

There is an assignment of error which complains that jurors who heard the testimony of the officers upon a hearing preceding the trial, upon the question whether the officers would be permitted to testify, were allowed to serve on the jury. But this assignment must fall" for lack of support in the bill of exceptions, because it is not shown thereby that the jurors heard that testimony. Besides defendant admitted his guilt on the preliminary hearing. His only hope .of acquittal was that the search would be held illegal.

The judgment is affirmed.