Summary
In United States v. Jankowski, 2 Cir., 28 F.2d 800, state troopers who stopped a car for improper headlights found therein liquor being illegally carried, and we held that they could properly arrest the driver for this offense and retain the whiskey.
Summary of this case from Matthews v. CorreaOpinion
No. 91.
October 29, 1928.
In Error to the District Court of the United States for the Western District of New York.
Edward Jankowski was convicted of transporting intoxicating liquor, in violation of the National Prohibition Act, and he brings error. Affirmed.
The government's case was founded on the testimony of Gibbons, a New York state trooper. He said that he was patrolling the Fredonia-Jamestown Highway, in Chatauqua county, in Western New York, on the night of January 6, 1928, with another trooper named Frost. They noticed an automobile approaching with one light on and the other flickering, and stopped the car to fix the lights; that Gibbons opened the door of the car, informed the defendants that the lights were defective, asked for the registration card and operator's license, and saw across the knees of the two defendants, who were the occupants of the car, a blanket which he knew from its appearance to be the property of the state of New York used by state troopers. The defendants got out of the car, and, as they removed the blanket, the troopers saw a package on the floor of the car. The defendants were asked what it was, and replied that it was whisky that was being taken to Jamestown. Gibbons then asked them if they had any more, whereupon Jankowski opened the back part of the car, which was found to contain 16 cases of whisky. Gibbons admitted that after stopping the car he found that the lights were not defective, though he did not know this when he stopped it. He made no arrest for unlawful possession of the blanket, or for any offense against state law, and admitted that he did not need to open the door of the car in order to tell the defendants that the lights were defective, for Jankowski lowered the window on the driver's side. He said it was customary to stop drivers with defective lights, and that it was a good idea to ask them for their registration card and operator's license, because the car might be stolen.
After finding the whisky, Gibbons placed the defendants under arrest and turned over the liquor, as well as the defendants, to federal officers.
The defendants' evidence was to the effect that Binkowski was asked by Jankowski to take a drive in the latter's car, and that when he entered it there was nothing on the floor, and he brought the blanket with him which he had retained when he ceased to be a state trooper; that while Gibbons was inspecting the registration card Frost broke open the back of the car and found the liquor, which was all in that place. There was also testimony on behalf of the defendants that they did not get out of the car until after Frost had broken into the back of it and found the liquor.
Binkowski further testified that the blanket was discovered only after the troopers broke into the back end of the car; also that 12 or 14 cars were stopped and searched immediately after defendants' car was stopped; that every car that came along was stopped, and that defendants were detained in the road, after the search, so that the troopers could stop those other cars, Gibbons saying that: "It would not be long; we will get nine or ten loads, and we will go back to Jamestown together." Gibbons, however, denied searching any other cars, or even stopping more than a single car which was held up at the time defendants' car had been overhauled and was obstructing the road.
No search warrant issued and no arrest was made for violation of any state law.
A motion was made, prior to as well as during the trial, for the return of the whisky, as well as for the suppression of the evidence, and was denied. A motion was made to dismiss the information on the ground that there was no proof of trouble with the lights of the car, which was the only ground urged for originally stopping it; that there was no need of opening the car door; that not until this was done was any evidence of a federal violation discovered; and that the arrest was made without probable cause. This motion was denied.
The court charged the jury that it was not for them to decide whether the method of stopping the car was proper, and that the only question for them to determine was whether there was intoxicating liquor in the car, "did those defendants know it and did they knowingly transport it." This charge was excepted to. The jury acquitted the defendant Binkowski, and convicted Jankowski, from which conviction the latter has appealed.
Michael J. Maher, of Buffalo, N.Y. (John J. Carlo, of Buffalo, N Y, of counsel), for plaintiffs in error.
Richard H. Templeton, U.S. Atty., of Buffalo, N.Y. (Harold E. Orr, of Buffalo, N.Y., of counsel), for the United States.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
If the story of State Trooper Gibbons be taken as true, and it would seem to be more likely to be so than the interested account of the defendant Binkowski, we must assume that the troopers were patrolling the roads to secure the observance of state law and to detect its violation. A part of their duty was to see that persons driving motor vehicles complied with section 286 of the New York Highway Law (Consol. Laws, c. 25), which requires the display of proper headlights on all automobiles. Gibbons testified that the car which Jankowski drove had —
"one light on and the other flickering; * * * that they stopped this car to notify the driver to fix his lights; * * * that, after he stopped the defendant's car, he asked him for his license card and at that time saw a blanket across the knees of the defendants that he knew was the property of the state of New York; * * * that thereafter the two defendants got out of the car and * * * as they got out he noticed underneath the blanket was a package on the floor; * * * that he asked the defendant Binkowski what it was and that both defendants said `it was whisky.' * * * He then asked the defendants if they had any more than what was in the front and Jankowski then opened the back end of the coupé and there were 16 cases altogether of `Golden Wedding' whisky and that he then placed them under arrest and took them to Jamestown."
This version of what occurred shows no illegal search, nor, indeed, any search at all. While engaged in ordinary police work for the state, the troopers saw the package which the defendants said contained whisky. Thereafter the defendants, knowing that they were caught, confessed that they had other whisky aboard the car, and opened the rear of the car and disclosed the contents.
The claim that the search was illegal can only be based on the opening of the door of the car by the trooper. But when a policeman, without any protest, opens the door of an automobile to talk to the owner, it certainly goes beyond all reason to say that he is engaged in an unlawful search. It may often be the most convenient way either to look at a registry card or to talk to the driver about the condition of his headlights.
Nor is it necessary, because the lights were not ultimately found to be defective, to assume that the motive for stopping the car was to make an unlawful search for contraband liquor. They may have temporarily been dim because of some irregularity in the electric current, or the officers may have been mistaken. The avowed purpose for stopping the car and opening the door was to enforce state regulations, and the discovery of the whisky was incidental.
In such circumstances, any officer who saw the defendants in the act of committing a crime would have the power to make an arrest.
The plaintiff in error relies on the decision in Gambino v. United States, 275 U.S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A.L.R. 1381. It was there held that, when state officers were making a search and seizure without probable cause and solely for the purpose of aiding in the enforcement of the federal law, the evidence could not be used in the federal courts, because the sole purpose of the search was to aid in the prosecution of a federal offense. Here, according to the testimony of Gibbons, the purpose of stopping the car was to enforce the observance of the state laws, and the information gained thereby was incidental and obtained without any search.
The only remaining consideration is whether the story of Gibbons, on the faith of which the trial judge admitted the evidence, was credible, and whether, even if it was prima facie credible, the jury, in view of the conflict of testimony, should not have been allowed to pass on whether the facts constituted an illegal search.
It cannot be doubted that the testimony of Gibbons was credible. It was only met by the story of one of the defendants under indictment for the offense charged. Gibbons is not shown to have had any interest in misrepresenting the facts, whereas the interest of the defendants was patent. Consequently there was sufficient ground for the admission of the testimony by the trial judge.
If, as we find, the testimony was properly admitted by the court, it would be contrary to all proper rules of evidence to allow the jury in effect to pass on its admissibility and to determine whether any legal search was made. The question as to the lawfulness of the search relates to admissibility of evidence, and was for the court only. While we are referred to no decision relating especially to the rule as to admissibility of evidence in search and seizure cases, the general rule is as we have indicated. Gila Valley G. N.R. Co. v. Hall, 232 U.S. 94, 34 S. Ct. 229, 58 L. Ed. 521; Commonwealth v. Culver, 126 Mass. 464; State v. Leo, 80 N.J. Law, 21, 77 A. 523.
We find no error in the record, and the judgment of conviction is accordingly affirmed.
Gambino v. United States, 275 U.S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A.L.R. 1381, establishes that a New York state trooper, in which state there is no enabling act for the enforcement of the Prohibition Law, may not search, without a warrant, an automobile carrying intoxicating liquors while the defendant is occupying it, and thereafter seize the liquors and turn them over to the federal authorities for prosecution under the Prohibition Act (27 USCA), for the reason that it is necessary to establish probable cause before an arrest, search, and seizure may be made on behalf of the United States. The admission in evidence of the liquors so obtained was there held to be a violation of the Fourth and Fifth Amendments. In Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790, the court pointed out the need, for a lawful seizure, of establishing probable cause, and held that section 26 of title 2 of the National Prohibition Act (27 USCA § 40), permitting seizure of the vehicle when officers discovered a person in the act of transporting in violation of the law, does not limit the officer "to what he sees, hears, or smells as the automobile rolls by," but when he identifies the car, and has convincing information that he has previously received as to the use being made of it, he may use such information as establishing the probable cause. It was a federal officer who made the seizure. In the case at bar there was no previous knowledge shown upon which to predicate probable cause. The reason given for stopping the car was said to be a possible violation of the State Motor Vehicle Law (Laws 1904, c. 538), in that lamps were not lighted as required by that act. But, when the car was stopped, no arrest was made, either for violation of the Motor Vehicle Law or the possession of a blanket which formerly belonged to state troopers. No accusation of crime was made as to either, but at once the state troopers made search of the automobile and seized the liquor. This amounted to an unlawful seizure within the Gambino Case. See, also, Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A.L.R. 409; Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654; United States v. Allen (D.C.) 16 F.2d 320; Emite v. United States (C.C.A.) 15 F.2d 623; Brown v. United States (C.C.A.) 4 F.2d 246; Snyder v. United States (C.C.A.) 285 F. 1. The only arrest made was for violation of the Prohibition Law, and the seizure of the liquor was not an incident of an arrest on a charge of violating the state law.
I dissent.