BRINEGAR v. UNITED STATES, 165 F.2d 512

PHILLIPS, Circuit Judge. This is an appeal by Brinegar from a judgement of conviction for a violation of the Liquor Enforcement Act of 1936, § 3, 27 U. S. C. A. § 223. The sole ground for reversal urged is the denial of a motion to suppress evidence obtained by a search and seizure.

At the hearing on the motion, Brinegar testified that on March 3, 1947, while driving a 1946 Ford coupe, he was apprehended by two investigators of the Alcohol Tax Unit about three miles east of Quapaw, Oklahoma; that the investigators searched the coupe and found a number of cases of whisky therein; that they seized the coupe and the whisky; that no search warrant was served upon him, and that he did not consent to the search; that one case of whisky was in the front seat, but was covered with a lap robe; that the remainder of the whisky was back of the front seat but could be exposed to view by raising the seat.

The following facts were established by the testimony of Malsed and Creehan, investigators for the Alcohol Tax Unit, at the hearing on the motion to suppress: On March 3, 1947, the investigators were working on the north boundary line of Oklahoma. Malsed knew Brinegar.

He had arrested him on September 30, 1946, “for hauling liquor.” On other occasions, he had seen him loading intoxicating liquor into an automobile at Joplin, Missouri, and for some time he had known him as a “liquor hauler.” The investigators were in an automobile parked on the side of the road about one-fourth of a mile east of the Qua-paw bridge. The road there runs east and west. The investigators observed a Ford coupe approaching from the east. Malsed recognized Brinegar as the driver of the coupe as it passed the point where the investigators were stationed. The coupe appeared to be heavily loaded.

Upon passing the investigators, Brinegar increased his speed and the investigators started in pursuit of him. After it had crossed the bridge, the coupe began skidding on a curve and Brinegar slowed down. Up to the time the coupe skidded, the investigators, although traveling at the maximum speed of their automobile, were unable to gain on Brine-gar. When Brinegar slowed down, the investigators drove up alongside the coupe and Creehan sounded the siren. Brinegar then stopped on the side of the road.

The investigators alighted from their automobile and Malsed asked Brinegar, “How much liquor have you got in the car this time?” Brinegar replied, “Oh, not so much.” In response to further questioning, Brinegar stated there were about 12 cases of whisky in the coupe. Brinegar further stated that he had both a wholesale and a retail liquor dealer’s stamp and asked if that would help him. The investigators then searched the car and found 13 cases of whisky.

One case of Schenley’s was on the floor to the right of the driver’s seat in full view of the investigators; the remainder of the whisky, except a partially consumed bottle on the seat, was back of the seat. The search in its entirety took place after the incriminating statements had been made by Brinegar. The investigators testified that such statements were made by Brinegar before they placed him under arrest.

The testimony of the investigators with respect to the statements made by Brinegar was not obj ected to on the ground that they were not voluntary nor on any other ground; neither did Brinegar testify or otherwise assert at the hearing on the motion to suppress that such statements were hot voluntary. At the conclusion of the testimony, the trial court made an oral finding that such statements were voluntary and that finding was not challenged below. The motion to suppress was denied. Whether there was a technical arrest before the statements were made by Brinegar may be doubted. In Jenkins v.

United States, 10 Cir., 161 F.2d 99, 101, the court said: “To constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.” But we deem it unnecessary to decide whether there had been a technical arrest at the time the statements were made. At least, the investigators had pursued Brine-gar, sounded their siren, and had caused him to stop, and they were questioning him as a suspect when the statements were made.

We are of the opinion that the facts within the knowledge of the investigators and of which they had reasonable trustworthy information prior to the time the incriminating statements were made by Brinegar were not sufficient to lead a reasonably discreet and prudent man to believe that intoxicating liquor was being transported in the coupe, and did not constitute probable cause for a search.

Neither were such facts sufficient, in our opinion, to induce an ordinarily prudent and cautious person, under the circumstances, to believe in good faith that Brinegar had committed a felony so as to constitute probable cause for the investigators arresting Brinegar without a warrant.

However, the statements made by Brinegar, together with the facts theretofore known by the investigators, if the investigators were warranted in acting upon such statements, were sufficient to lead a reasonably discreet and prudent man to believe that intoxicating liquor was being transported by Brinegar into Oklahoma and, since it was not practicable for the investigators to obtain a search warrant, justified the search and seizure of the whisky and the arrest of Brinegar.

The question presented then is whether the investigators, having sufficient information to suspect Brinegar, but not sufficient information to constitute .probable cause for a search of the coupe and the arrest of Brinegar, could, after stopping him and interrogating him with respect to whisky in the coupe, lawfully act upon the information obtained as a basis for probable cause for the search and seizure.

If the statements made by Brinegar to the investigators could have been properly introduced in evidence against Brinegar at a trial on the criminal charge, then we think they, with the other facts known to the investigators, constituted adequate basis for probable cause for search and seizure by the investigators.

A confession or an incriminating statement made by a person is not involuntary merely because made while such person is in custody after arrest. “The mere questioning of a suspect while in the custody of police officers is not prohibited either as a matter of common law or due process.” Neither will the fact that the arrest, under which the person was taken into custody, was illegal, in and of itself render a confession or an incriminating statement involuntary. The test is whether, under all the facts and circumstances, the confession or incriminating statement was voluntarily made. We do not regard McNabb v.

Unitec States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed 819, to hold otherwise. In United States v. Mitchell, 322 U.S. 65, 67, 64 S.Ct. 896, 897, 88 L.Ed. 1140, the court said : “In the circumstances of the McNabb case we found such an appropriate situation, in that the defendants were illegally detained under aggravating circumstances: one of them was subjected to unremitting questioning by half a dozen police officers for five or six hours and the other two for two days.

We held that ‘a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in wilful disobedience of law. * * *’ Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case which led us to rule that a conviction on such evidence could not stand.” Concluding, as we feel we are compelled to do, because of the findings of the trial court and the facts disclosed by this record that the statements made by Brine-gar were not coerced by the action of the officers, but were voluntarily made, we hold that such statements would have been admissible against Brinegar on a trial on the criminal charge and that such statements, together with other facts known to the investigators, constituted probable cause for a search of the coupe and, since it was impracticable for the officers to obtain a search warrant, that the search was lawful.

Affirmed. In their brief, counsel have contended that the conviction could not stand because of the repeal of 37 O. S. A. §§ 41-48, but that ground was abandoned at the oral argument. Von Patzoll v. United States, 10 Cir., 163 F.2d 216, 220, and cases there cited. Papani v. United States, 9 Cir., 84 F.2d 160, 163; Wisniewski v. United States, 6 Cir., 47 F.2d 825; Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035; United States v. One 1941 Oldsmobile Sedan, 10 Cir., 158 F.2d 818, 819. Pierce v. United States, 160 U.S. 355, 357, 16 S.Ct. 321, 40 L.Ed. 454; Ziang Sung Wan v.

United States, 266 U.S. 1, 14, 45 S.Ct. 1, 69 L.Ed. 131; Lyons v. Oklahoma, 322 U.S. 596, 601, 64 S.Ct. 1208, 88 L.Ed. 1481; Lisenba v. California, 314 U.S. 219, 240, 62 S.Ct. 280, 86 L.Ed. 166. Cf. United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140. Lyons v. Oklahoma, 322 U.S. 596, 601, 64 S.Ct. 1208, 1212, 88 L.Ed. 1481. Gilmore v. State, 3 Okl.Cr. 434, 106 P. 801, 803, 27 L.R.A.,N.S., 151; People v. Klyczek, 307 Ill. 150, 138 N.E. 275, 277; People v. Vinci, 295 Ill. 419, 129 N.E. 193, 195; Hicks v. State, 213 Ind. 277, 11 N.E.2d 171, 177; Quan v.

State, 185 Miss. 513, 188 So. 568, 569; State v. Hoskins, 327 Mo. 313, 36 S.W.2d 909, 910; Balbo v. People, 80 N.Y. 484, 499; People v. McFarland, 386 Ill. 122, 53 N.E.2d 884, 887. See, also, State v. Zukauskas, 132 Conn. 450, 45 A.2d 289, 293; Sykes v. United States, App.D.C., 143 F.2d 140. Cf. R. v. Thornton, 1 Moody, C.C. 27. Young v. United States, 5 Cir., 107 F.2d 490, 492; Ruhl v. United States, 10 Cir., 148 F.2d 173, 176; Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 42 L.Ed. 568. See Morgan v. United States, 10 Cir., 159 F.2d 85.