SNYDER v. UNITED STATES, 285 F. 1

GRONFR, District Judge. This is a writ of error to the District Court of the United States for the Northern District of West Virginia, at Parkersburg. Plaintiff in error, Snyder (hereinafter spoken of as defendant) was convicted in the District Court at Parkersburg, W. Va., on the 30th day of January, 1922, of a violation of the National Prohibition Law (41 Stat 305).

The principal ground upon which we are asked to reverse the judgment is that the lower court erred in admitting, over defendant’s objection, certain evidence against him which he insists was inadmissible and should have been suppressed because unlawfully obtained. The if acts, briefly, are these: Defendant, about 2 o’clock in the afternoon of the 5th of November, 1921, while standing in one of the public streets in the city of Wheeling, W.

Va., was approached by a federal prohibition officer, who, observing the inside pocket of his overcoat bulged out and the neck of a bottle protruding therefrom, walked up to him, placed one hand on his shoulder, remarked that he “had beat him to it,” forcibly lifted the bottle halfway out of the pocket with the other, and, finding it to contain a liquid of the appearance of whisky, placed him under arrest, and took him, in spite of his protest, and a demand for a warrant, into a nearby store, searched him, finding three other similar bottles, afterwards found to contain whisky, and then took him before a United States commissioner, by whom he was bailed for his appearance at a subsequent date.

After the hearing before the commissioner, but in advance of the trial in the District Court, defendant filed a petition, duly verified, showing the circumstances of his arrest and search, claiming that the same were unlawful and in violation of his constitutional rights, and praying that the evidence obtained by the arrest and search be suppressed.

To this petition the district attorney filed an answer for the United States, admitting the arrest and search without warrant, but denying its unlawful nature upon the ground th'at the offense charged, i. e., transportation of liquor, was committed in the presence of the officer. The arresting officer admitted at the trial that he did not know the nature of the contents of the bottle until after he had forcibly taken the same from defendant’s pocket.

The lower court denied the petition, and in the trial that was subsequently fiad before a jury the whisky was admitted in evidence, and the question of the legality of the manner in which it was secured foreclosed by a ruling of the court that that question had already been passed upon and was no longer open. What we are therefore called on to determine is whether evidence of a misdemeanor obtained under the circumstances hereinabove enumerated is, where seasonable motion for its suppression has been made, admissible at the trial.

That an officer may not make an arrest for a misdemeanor not committed in his presence, without a warrant, has been so frequently decided as not to require citation of authority. It is equally fundamental that a citizen may not be arrested on suspicion of having committed a misdemeanor and have his person searched by force, without a warrant of arrest.

If, therefore, the arresting officer in this case had no other justification for the aírest than the mere suspicion that a bottle, only the neck of which he could see protruding from the pocket of defendant’s coat, contained intoxicating liquor, then it would seem to follow without much question that the arrest and search, without first having secured a warrant, were illegal. And that his only justification was his suspicion is admitted by the evidence of the arresting officer himself.

If the bottle, had been empty or if it had contained any one of a dozen innoxious liquids, the act of the officer would, admittedly, have been an unlawful invasion of the personal liberty of the defendant. That it happened in this instance to contain whisky, we think, neither justifies the assault nor condemns the principle which makes such

an act unlawful. “ * * * Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it must do so in conformity to the laws of the land. There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.” Beam Case, 104 S. C. 146, 88 S. E. 441, L. R. A. 1916E, 714.

It follows from what has been said that the evidence of the misdemeanor charged in this case was illegally acquired; and this brings us to the question in the case, namely, whether evidence so illegally acquired should have been excluded in the trial subsequently had. In some of the state courts evidence thus obtained has been admitted, such courts holding that its admissibility is not affected by the illegality of the means through which it was obtained, or, as was said by the Supreme Court of Illinois, in Gindrat v.

People, 138 111. 103, 27 IE E. 1085: “Courts, in the administration of the criminal law, are not accustomed to be over sensitive in regard to the sources from which evidence comes.” In the courts in which this rule prevails the only remedy of the injured person is an action — too frequently bootless — against the offending official. In the courts of the United States a different rule prevails.

The rights guaranteed under the Fourth and Fifth Amendments of the Constitution are declared to be important to the political liberty of the citizen and to the welfare of the country. “ * * * They a,re to he regarded as of the very essence of constitutional liberty, and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right, to trial by jury, to the writ of habeas corpus, and to due process of law.” Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647.

The federal courts have therefore adopted the policy of excluding evidence illegally obtained by a federal officer, whether the evidence so obtained was by unlawful invasion of his home or of his person, on the ground that to hold otherwise would be to require him to supply evidence again'st himself. So fully have these questions been discussed in recent opinions of the Supreme Court that we regard anything more than a reference to the cases useless, as well as wholly out of place. Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R.

A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Amos v. U. S., 255 U. S. 313,41 Sup. Ct. 266, 65 L. Ed. 654. For the reasons stated, the judgment of the lower court should be, and is, reversed, with instructions to grant a new trial in accordance with this opinion. Reversed. <@^For other cases see same topic & KEY-NUMBER in .all Key-Numbered Digests & Indexes