Opinion
No. 12903.
February 4, 1930.
Anthony Savage, U.S. Atty., and Tom De Wolfe, Asst. U.S. Atty., both of Seattle, Wash., for libelant.
Revelle, Simon Coles, of Seattle, Wash., for claimant.
Libel by the United States against One Ox-5 American Eagle Airplane, No. 5571, John A. Kinnear, claimant. On motion to suppress, etc.
Exceptions to libel overruled, and motion to suppress denied.
The libelant seeks condemnation and forfeiture of the above-named airplane for unlawfully bringing into the United States, without submission to inspection to any customs officer of the United States, and without paying any duty upon the liquors which were brought in, or reporting them to the United States Customs service, and without any permit for such importation.
The amended libel alleges, among other things, that on September 23, 1929, within this jurisdiction, "a certain OX-5 American Eagle Airplane, No. 5571, was seized"; that prior to September 20, 1929, at Everett, Wash., "in, on, and about said airplane," there was "possessed, deposited, * * * and transported in, on, and about said airplane * * * whisky * * * Three Star Hennessey Cognac * * * unlawfully imported into the United States from a foreign country, without submission to inspection of any customs officer of the United States, and without said liquors, which were then and there dutiable, being reported to the United States Customs service, and without payment of duties thereon, and without permit;" "that ever since said date of said seizure * * * said airplane has been and is now in the possession of the Collector of Customs. * * *"
The claimant excepts to the amended libel, in that it does not show that the seizure of the airplane therein was legal, or by duly authorized officers of the United States Customs, or that the seizure has ever been adopted by duly authorized officers of the Customs of the United States; and, further, on the ground that it does not state facts sufficient to constitute a cause of forfeiture.
A motion is made to suppress as evidence "three cases of twenty-four bottles each * * * Coon Hollow, full pints, Bourbon Whiskey, and Four cases containing twelve bottles each of Three Star Hennessey Cognac" on the ground that it was illegally seized in violation of the Fourth and Fifth Amendments to the Constitution, as to the claimant.
In support of the motion to suppress is the affidavit of the claimant, in which he says he was the owner of the liquors described, "that the bottles and contents were in sacks stored in the forward cockpit, with the canvas of said forward cockpit tightly and securely fastened; that it was impossible for any one to see said bottles and sacks without removing said canvas covering from the said cockpit;" and then states that when he landed and left the airplane to register at the office of the airport, and, while so doing, the airplane was searched by deputy sheriffs of Snohomish county, and the liquor seized without any search warrant.
The two deputy sheriffs file affidavits, in which they state they had received reports that liquor and narcotics were being smuggled by airplane and landed at Everett at the Everett airport; that on the 20th of September, about 4 p.m., they noticed "a strange plane" and decided to go to the airport; that upon arrival at the airport they watched the claimant land his plane, and when he got out affiant noticed "some cow dung on the plane, indicating that said plane had landed in some out of the way place"; that claimant went into the office and phoned the Renton airport; that affiant had information that the Renton airport was active in connection with liquor activities, "* * * affiant had been told by a third party that there was something in that ship (referring to the airplane of John Kinnear), and that said person who divulged said information knew that affiant was a deputy sheriff."
Deputy Sheriff Johnson says "that upon arriving at the airport affiant and Deputy Clark watched the defendant Kinnear land his plane, and defendant Kinnear got out of the plane and went in and registered at the office; that about this time a Mr. Scott arrived at the airport and said Scott had previously been manager of the airport; upon Scott's arrival, and seeing Deputy Sheriff Clark and affiant, said Scott looked rather surprised and did not talk to Kinnear nor go near the plane and Scott's actions were very peculiar and Scott's peculiar actions and previous reports which affiant had heard regarding Scott made affiant suspicious that something was wrong." That claimant stated, when affiant said to him: "You have got a pretty swell racket here, haven't you?" "This is no racket of mine. I just fly this for another man. Are you government men or local officers?" That affiant and Clark were deputy sheriffs who seized the intoxicating liquors in Kinnear's plane on September 20, 1929, and seized the same in their capacity as deputy sheriffs of Snohomish county; that no federal agents participated in the raid and seizure of the liquor in said plane on the day in question.
It is insisted that the libel is lacking in substance, in that it does not allege that the airplane was in the custody of the collector of customs, but, rather says, in his possession.
Custody, as distinguished from legal possession, may be said to be a charge to keep subject to order or direction. Cutter v. Howe, 122 Mass. 541, 543; People v. Burr, 41 How. Prac. (N.Y.) 293, 296. While the terms "custody" and "possession" are not convertible, temporary custody does not constitute possession, it is a qualified possession, and, by the charge of possession in the amended libel by the collector, the clear purport is custody within the intent of the statute. See Emmerson v. State, 33 Tex.Crim. R., 25 S.W. 289.
A reading of the indictment forces the inevitable conclusion that the plane is in the custody of the collector to await disposition according to law, as provided by section 605, Tariff Act 1922 (19 USCA § 512).
The Court of Appeals of the Second Circuit in The Underwriter, 13 F.2d 433, 434, said: "The learned District Judge was in error in holding that the seizure must be lawful in its origin. * * * As it appears that the res was in the possession of the collector when the libel was filed, it is sufficient to support the jurisdiction of the libel" — citing a number of cases.
The exceptions confess the seizure and the possession of the plane, the unlawful importation as charged, and, obviously, the exceptions must be denied. In United States v. One Studebaker, etc. (C.C.A.) 4 F.2d 534, 535, Judge Rudkin for the court said: "At the common law any person may, at his peril, seize for a forfeiture to the government, and, if the government adopts his seizure, and institutes proceedings to enforce the forfeiture, and the property is condemned, he will be completely justified. So that it is wholly immaterial in such a case who makes the seizure, or whether it is irregularly made or not, or whether the cause assigned originally for the seizure be that for which the condemnation takes place, provided the adjudication is for a sufficient cause." See, also, United States v. One Ford, etc. (D.C.) 3 F.2d 64.
The claimant's citations: Ghisolfo v. United States (C.C.A.) 14 F.2d 389, was a procedure under section 26, tit. 2, of the National Prohibition Act (27 USCA § 40) and the holding follows United States v. Loomis (C.C.A.) 297 F. 359, where the District Court was reversed on its conclusion here asserted by claimants. United States v. Certain Malt (D.C.) etc., 23 F.2d 879; Castro v. United States (C.C.A.) 23 F.2d 263; In re Oryell (D.C.) 28 F.2d 639; Talent v. United States (C.C.A.) 32 F.2d 630; are also national prohibition cases.
This court in United States v. Hydes, 267 F. 470, held that forfeiture under the National Prohibition Act must be strictly followed, and that the res must be arrested in the illegal act of transportation, and that case has been cited with approval many times.
Section 3450 [26 USCA § 1181] applies to vehicles "whether used for removal, deposit, or concealment, and even although the vehicle is not in motion and movement was never contemplated; section 26 [tit. 2 (27 USCA § 40)] applies only to a vehicle used in transporting contrary to law." United States v. One Ford, etc., 272 U.S. 321, 331, 47 S. Ct. 154, 157, 71 L. Ed. 279, 47 A.L.R. 1025.
Forfeiture may be made: Under the National Prohibition Act, tit. 2, § 26 (title 27, § 40, USCA); customs tariff laws (Rev. St. 3062, Tariff Act 1922, §§ 593, 594; Title 19, USCA, §§ 483, 496-498); the internal revenue laws (section 3450, R.S., title 26, USCA § 1181). See, also, narcotic and distillery statutes. The procedure in each case is in rem, but, under the National Prohibition Act, the thing may be convicted only on conviction of the offending person.
No representative of the United States participated in the search. Hence, the Fourth Amendment has no application. The facts, however, are fully as strong to show reasonable grounds for search as appear in King v. United States, affirmed on appeal from this court (C.C.A.) 1 F.2d 931. The officers had information that liquor and narcotics were being smuggled to the Everett airport, and were informed on the day previous to Kinnear's arrest that something interesting was going to "happen at the Everett airport"; they saw a strange plane, went to the airport and saw the plane land, and noticed "cow dung" on the plane, indicating the plane had landed at an unusual place. Kinnear got out of the plane, registered, and phoned the Renton airport, which port, affiants were informed, was active in liquor and narcotic activities; saw Scott, former manager of the airport, who had just arrived; Scott looked surprised when he saw the officers, whom he knew, and acted peculiar and avoided Kinnear; a third party said to the officers, knowing their official relation, "There is something in that ship." The officer lifted the canvas cover slip in the cockpit, saw, and seized the liquor.
The state officers had reason to believe that Kinnear had been, and was, committing a felony, and had a right to search without any paper warrant.
The exceptions are overruled. The motion to suppress is denied.