KANELLOS v. UNITED STATES, 282 F. 461

WOODS, Circuit Judge. Defendant, Louis Kanellos, was convicted of having in his possession and transporting intoxicating liquor. The conviction rested entirely on the evidence of a state constable; who testified that without a search warrant and against defendant’s protest he searched the pockets of defendant’s automobile and found two quarts of whisky. No federal officer participated in the search. There is not a particle of evidence that the search and seizure was under arrangement with a federal officer or in the enforcement of a federal law.

The state of South Carolina has its own liquor laws, enforceable, of course, by its own officers. Elrod v. Moss (C. C. A.) 278 Fed. 123. A motion was made to strike out this testimony on the ground that defendant was protected from such search and seizure by the Constitution of the United States, and that evidence obtained by means of it was incompetent. The court was asked to direct a verdict of acquittal on the same ground. We think the District Judge was right in refusing both motions. It is true we held such evidence incompetent in Dukes v. United States (C. C.

A.) 275 Fed. 142, but on the point now to be decided that case cannot be followed. The general rule is that vicious origin goes to the credibility, not to the competency, of evidence. Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575. See extended note 13 Am. St. Rep. 135; L. R. A. 1915B, 834. Rut the Supreme Court has held, as an exception to this rule, that evidence acquired in an illegal search made by a federal officer is not competent in a federal court. Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654.

The intricate distinctions and difficulties which arise in the application of this exception are illustrated in cases now before us. Even if the point were open, we should not be inclined to extend the exception beyond the express requirement of that case. The Supreme Court has held it is not to be extended to evidence obtained in an illegal search by a state officer.

If a post office is robbed, and a United States marshal, without warrant, enters the home of the thief and finds the stolen registered mail and the burglar’s tools used to enter the post office, it may be that under the rule announced in the Amos Case the marshal could not testify to the discovery. But the Supreme Court has held that such a discovery made in an illegal search by a sheriff or a policeman or a private individual is competent evidence. The point was directly involved and decided in Weeks v. United States, 232 U. S. 383, 398, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann.

Cas. 1915C, 1177, denying the right of the defendant to have returned papers seized by state officers in a search made without a search warrant, turned over to the United States marshal and held by the district attorney to be used as evidence against the defendant. The court said: “As to the papers and property seized by the policeman, it does not appear that they acted under any claim of federal authority such as would make the amendment applicable to such unauthorized seizures.

The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment of the federal court, under what supposed right or authority does not appear. What remedies the defendant may have against them we need not inquire, as the Fourth Amendment is not directed to individual misconduct of such officials. Its limitations reach the Federal Government and its agencies. Boyd Case, 116 U. S. 616. And see Twining v. New Jersey, 211 U.

S. 78.” It is to be noted that the Weeks Case arose in the state of Missouri, and the Constitution of that state contains substantially the same provisions as to unreasonable searches and seizures as the Fourth Amendment to the Constitution of the United States. Again, in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392, 40 Sup. Ct. 182, 183 (64 L.

Ed. 319), the court, speaking of papers obtained by government officers in violation of the Fourth Amendment, says: “If knowledge of them is gained from an independent source, they may be proved like any others; but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed.” In Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A. L.

R. 1159, it was again held that the security afforded by the Fourth Amendment applies solely to action taken under federal authority or by federal officers; and where papers are unlawfully taken by individuals unconnected with the federal government, and after-wards come into the possession of federal officers, they may be used as evidence against the person from whom they were taken. These cases related to seizure of incriminating private papers, not intoxicating liquors. But we are unable to distinguish this case on that ground. The significance of the second

section of the Eighteenth Amendment has not yet been accurately determined. Doubtless it does confer upon the several states power to enact legislation appropriate to the purpose of enforcement of the amendment. National Prohibition Cases, 253 U. S. 353, 391, 40 Sup. Ct. 486, 588, 64 L. Ed. 946; Vigliotti v. Pennsylvania (April 10, 1922) 258 U. S.-, 42 Sup. Ct. 330, 66 L. Ed.-. But it does not make prohibition officers of the several states, by reason of their state commissions, officers of the United States exercising federal authority. Surely it cannot be held to overthrow the long line of cases like Twining v.

New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97, holding that the Fourth Amendment does not protect the citizens against unreasonable searches by the state government and its agencies. In United States v. Falloco (D. C.) 277 Fed. 75, it was held that evidence obtained by a state officer by an unlawful search was incompetent in a federal court, if a federal officer co-operated with the state officer in the unlawful search. This doctrine has no application here, because there was an entire absence of evidence of participation or co-operation by a federal officer.

The conclusion that the evidence was competent is sustained in Youngblood v. United States (C. C. A.) 266 Fed. 795; United States v. Burnside (D. C.) 273 Fed. 603. Affirmed. other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes