Appeal from the District Court of the United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges. ALSCHULER, Circuit Judge.
Heller alone appeals from a judgment of conviction against Cohen, Craney, and himself, charging them in four counts with (1) manufacturing liquor, (2) possessing it, (3) maintaining a common nuisance, and (4) possessing certain property designed for use in the manufacture of intoxicating liquor, all in contravention of the National Prohibition Law (27 USCA).
The assigned error mainly relied on is in the court's denial of the motion to suppress evidence seized by the government on search without warrant of Heller's residence and his store. On hearing of this motion evidence was given of these facts:
The prohibition agents had received information respecting a certain automobile which had been carrying packing cases marked with a fictitious name and a fictitious address, and had learned that Cohen had previously been arrested while driving an automobile having therein some boxes so labeled, and also carrying whisky. On the morning of December 29, 1930, the agents went to Heller's store, conversed with him, and there found some of the boxes so labeled. They drove thence to Heller's home, and in its driveway there was a car having the license number whereof they had been notified. Craney and Cohen were taking from the car, and into the basement of the house, boxes having the same label. The door leading into the house and thence to the basement entrance was open, being so held by the close proximity of the car. Cohen came up from the basement and was asked whether he lived there, to which he answered, "No"; and when asked, "Where is the boss?" he said, "In the basement."
Looking through a window the agents saw in the basement twenty or twenty-five five-gallon glass bottles along the wall. Some of the bottles were full of brown colored liquid, and the others appeared empty. They saw a large number of boxes, some of which bore the same fictitious label, "S. B. Paper Co., 2019 Vliet St.," and also a filtering machine. The agents testified that what they observed from the window was similar to equipment in "cutting" plants. These are plants wherein alcohol is "cut" or modified and colored and flavored to resemble whisky, and then bottled and labeled. Before they entered there came very noticeably from the basement and through the hallway door fumes of alcohol. The agents then went through the open door, and on reaching the foot of the basement stairs a fully equipped cutting plant was visible. On the laundry tubs were boards upon which stood twelve five-gallon bottles of whisky. The boxes, labeled as stated, contained whisky labels and fictitious strip stamps.
On the hearing of the motion to suppress, Heller himself testified he was there running a cutting plant. This is "manufacturing" in contravention of the law. Danovitz v. United States, 281 U.S. 389, 396, 50 S. Ct. 344, 74 L. Ed. 923.
It seems plain enough that what the agents saw through the basement window before they entered the building, in conjunction with the odor coming to them at the same time from the basement, was all-sufficient indication to them that the law was being violated, in that articles especially adapted and designed for the manufacture of intoxicating liquor intended for use in violating the law were possessed within that basement. Palazini v. United States (C.C.A.) 14 F.2d 886; Klein v. United States (C.C.A.) 14 F.2d 35. These facts are further evidence that the articles were then in actual use for the purpose of manufacturing liquor contrary to the statute, and so it is that before entering the building the agents became aware that in their presence a crime was then actually in course of commission. This justified their entrance into the basement through the open door and their search of the basement, and the arrest of the persons there found in actual charge of these concededly unlawful operations. Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A.L.R. 409.
The above recited facts, adduced on the hearing of the motion to suppress, justified the denial of the motion.
Heller, who resided upon the premises, was not present while the agents were there. The agents took from Cohen and the other man whom they arrested a key to a side entrance to Heller's store, and they then went to the store, which was locked, and opened the side door with the key. Going into the store they found and seized more bogus stamps, labels, and paraphernalia for carrying on such unlawful traffic, also a small quantity of whisky.
The evidence sufficiently showed that the unlawful operations were carried on in the store as well as in the basement of the residence -- not as separate units, but as parts of the same business. Cohen was active in both places, and carried the key to the store. Upon the lawful search of him the key was taken, and in the indicated circumstances there was no impropriety on the part of the agents in employing the key to enter the store wherein the agents had previously seen the same suspicious boxes which bore the same fictitious labels, and where they had conversed with Heller, in whose residence they had just found the unlawful cutting plant.
The holding in the Agnello Case, supra, that the entry of Agnello's residence without warrant was unlawful, was upon facts quite different from those here. The only asserted justification for entering the residence was that Agnello had been arrested with others whom the agents said they saw in possession of narcotic packages in another building. There was not, as here, any reason to believe there existed any relation between the two places. Indeed, Agnello testified denying he knew what was in the packages found in the place where he was arrested.
But if the search of the store were conceded to be unlawful, the evidence thereby obtained was not harmfully consequential to appellant, considering what was discovered at the house. As to the latter, there was no question or contradiction and, once the evidence of what there occurred was admitted, there was no possible escape from conviction.
Heller complains of the admission against him on the trial of the evidence he gave on the hearing of the motion, to the effect that the house which was searched was his residence. This evidence was offered by the government for the purpose of showing Heller's relation to the house, since nothing had theretofore appeared on the trial to indicate his connection with it. It is contended for Heller that evidence ...