Bell v. United States

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment of conviction for the unlawful manufacture of intoxicating liquor in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.).

Before the trial, the plaintiff in error interposed a motion to suppress certain evidence seized by a prohibition agent under a search warrant, on the ground that the warrant was illegal and void. The motion was denied and an exception allowed. Upon the trial, an objection to the testimony was interposed after the manner in which it had been obtained was disclosed, but the objection was overruled. The denial of the motion to suppress and the admission of the testimony over objection form the basis of the principal assignment of error. The course pursued by "the plaintiff in error at the trial has the sanction of the Supreme Court in Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654.

No attempt has been made to uphold the validity of the search warrant in this court, and it was confessedly void, because issued to search a private dwelling occupied as such without any proof that the dwelling was used for the unlawful sale of intoxicating liquor. The usual attempt is made, however, to justify the search on the ground that the officer had reasonable cause to believe that a crime was being committed in his presence. In answer to a similar contention in Temperani v. United States, 299 F. 365, this court said:

“The government, as we understand it, does not claim the right to search a private dwelling or garage under the facts disclosed by this record, but an attempt is made to justify the conduct of the officers under the common-law or statutory rule permitting peace officers to make arrests for offenses committed within their presence. But here the offender was not in the presence of the officers; he was not in tho garage, and they had no reason to suspect that he was there. Laying all pretense aside, the officers entered the garage, not to apprehend ¿n offender for committing an offense within their presence, but to make a search of the premises to obtain tangible evidence to go before a jury, and, whatever necessity may exist for enforcing the National Prohibition Act or other laws, the violation of rights guaranteed by the Constitution cannot be tolerated or condoned. If present laws are deficient in not permitting the search, in a constitutional way, of homes where intoxicating liquor is known to be manufactured, the remedy is with Congress, not in subterfuge or evasion. For these reasons, the court should have kept from the jury all property found on the search and all evidence given by the officers concerning the same.”

The decision in that case is cited with approval by tho Supreme Court in the recent case of Agnello v. United States, 46 S. Ct. 4, 70 L. Ed. -, decided October 12, 1925, the court saying:

“Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And sueh searches are held unlawful, notwithstanding facts unquestionably showing probable cause.”

There is no difference or distinction between this case and the Temperani Case. In each case the husband was absent when the raid was made. In the Temperani Case the raid was without a search warrant; in this ease the raid was under a void search warrant. In the Temperani Case tho husband alone was arrested; in this case both husband and wife were arrested. "With these immaterial differences the two eases are in all respects the same.

The court below exacted from the plaintiff in error at the time of sentence an agreement to waive his right of appeal. That agreement is embodied in the judgment of the court, and is now urged by the government as a reason why this court should not consider tho writ of error or reverse the judgment. A party may, no doubt, waive his right of appeal in a civil action, but even there the waiver must be supported by an adequate consideration. 3 C. J. 662; United States Consol. Seeded Raisin Co. v. Chaddock & Co., 173 F. 577, 97 C. C. A. 527, 19 Ann. Cas. 1054. Whether the right may be waived in advance of sentence in a criminal case we need not inquire, because we are satisfied that there was no valid waiver hero.

As already stated, both husband and wife were found guilty by a jury on incompetent testimony, obtained through the wrongful invasion of their constitutional rights. Before sentence the court announced that it was the invariable rule of the court to pronounce jail sentences upon those convicted of selling or manufacturing intoxicating liquor, and that there would be no departure from the rule in this case,- unless the plaintiff in error assumed responsibility for the crime and waived his right of appeal. If he chose the latter course, a nominal fine only would be imposed on the wife. To save his wife from imprisonment under the erroneous conviction, the plaintiff in error accepted the alternative imposed by the court and waived his right of appeal. Under such circumstances, it seems almost needless to say that the government can claim no benefit or advantage from either the assumption of responsibility on the part of tho plaintiff in error or the waiver of his right of appeal.’ The duress imposed would invalidate a civil contract, and more especially would it invalidate an agreement to waive an important right accorded to one convicted of crime.

Had the plaintiff in error agreed to waive his right of appeal in consideration of the imposition of a fine against himself, or for some like lawful consideration moving to him, there might be force in the argument of tho government; but an agreement exacted from him, having no other or further consideration than a promise on the part of the court not to imprison his wife under an illegal conviction, cannot be used against him for any purpose.

The judgment is reversed, and the cause is remanded for a new trial.

A similar order will be entered in Collura v. United States, No. 4526, submitted herewith.