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UNITED STATES v. WALTERS

May 2, 1961

UNITED STATES OF AMERICA, PLAINTIFF,
v.
BESSIE ANN WALTERS, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

Statement

A hearing on the motion of the defendant filed herein on January 25, 1961, to suppress the evidence and dismiss the indictment was held April 17, 1961. At the conclusion of the hearing, the court entered an order sustaining the motion and dismissing the indictment.

Because of the interest expressed by various law enforcement officers, this opinion is being filed setting forth the grounds and the reasons announced orally by the court at the conclusion of the hearing.

Opinion

The indictment charges that the defendant, Bessie Ann Walters, "did possess 50 gallons of distilled spirits, to-wit: whiskey, the immediate containers thereof not having affixed thereto stamps evidencing the payment of the tax due thereon in violation of 26 U.S.C. § 5604(a)(1) and 5205(a)(2)."

26 U.S.C. § 5205(a)(2) provides:

    "No person shall transport, possess, buy, sell, or
  transfer any distilled spirits, unless the immediate
  container thereof is stamped by a stamp evidencing
  the determination of the tax or indicating compliance
  with the provisions of this chapter."

The indictment is sufficient to charge a violation of the statute.

The penalty is prescribed by 26 U.S.C. § 5604(a)(1), which reads as follows:

    "Any person who shall (1) transport, possess, buy,
  sell, or transfer any distilled spirits, required to
  be stamped under the provisions of section 5205(a)
  (2), unless the immediate container thereof has
  affixed thereto a stamp as required by such
  section * * * shall be fined not more than $10,000 or
  imprisoned not more than 5 years, or both, for each
  such offense."

The motion of defendant, in effect, charges:

(1) That the home of the defendant was entered and searched by three police officers of the City of Hot Springs, Arkansas, before daylight between 6:00 and 6:30 a.m. on December 24, 1960; that as a result of said search the police officers found, seized, and took possession of 50 gallons of untaxpaid distilled spirits.

(2) That the place where the distilled spirits were found and seized was the home of the defendant, and had been occupied by her as her residence for a number of years, and that she was in legal possession of the premises at the time the search was made; that the 50 gallons of untaxpaid distilled spirits were her own property.

(4) That at the time the search and seizure was made, the defendant was not arrested or placed under bond; that she was not arrested upon the charge until Tuesday, January 3, 1961, ten days after the search and seizure; that on that date she was arrested by the city police officers and taken to the City Jail in the City of Hot Springs, at which time the investigators of the Alcohol, Tobacco Tax Unit were called by the said police officers, and the defendant was delivered to the custody of said federal officers who adopted the case, with the result that she was arraigned before Judge M.C. Lewis, Jr., on January 4, who was acting as United States Commissioner, and held to await the action of the grand jury for the Western District of Arkansas.

(5) No return was made upon the search warrant by the police officers and no inventory or statement was filed showing what, if anything, was found and seized as a result of the search.

Amendment Four to the Constitution of the United States provides:

    "The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no Warrants shall issue, but upon
  probable cause, supported by Oath or affirmation, and
  particularly describing the place to be searched, and
  the persons or things to be seized."

Rule 41(c) of the Federal Rules of Criminal Procedure, 18 U.S.C. provides that a search warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist, or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The warrant shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time.

Subsection (e) of Rule 41 provides that a person aggrieved by an unlawful search or seizure may move the district court for the district in which the property was seized to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) that there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) that the warrant was illegally executed.

The judge shall receive evidence on any issue of fact necessary to the decision of the motion.

The motion shall be made before trial or hearing unless opportunity therefor did not exist, or the defendant was not aware of the grounds for the motion, but the court in its discretion ...


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