Opinion
No. 370.
April 23, 1931.
Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.
J.C. Costin was convicted of transporting whisky, and he appeals.
Affirmed.
F.W. James, of Salt Lake City, Utah, for appellant.
Charles R. Hollingsworth, U.S. Atty., and George H. Lunt and Edgar C. Jensen, Asst. U.S. Attys., all of Salt Lake City, Utah.
Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.
Costin was convicted of the charge of transporting 150 gallons of whisky in an auto truck on and along a highway in Salt Lake county, Utah. Before trial he asked that evidence obtained by United States prohibition enforcement officer and deputy sheriffs who were with him, in searching the truck without a warrant, be suppressed. He also moved to quash on the ground that the officers in making search without warrant acted without probable cause to believe that the crime was being committed and the grand jury based its finding on their testimony. Error is assigned that the court held on the proof adduced there was probable cause justifying the search, seizure, and arrest without warrant.
On hearing the motion to suppress defendant called the prohibition enforcement officer as a witness, and he testified on direct examination that he did not have a search warrant when he searched the truck. On cross-examination he testified further: A few days before he searched this truck he went to Evanston, Wyo., to make investigation as to so much liquor coming into Utah from Wyoming; he met Officer Buck, night marshal of Evanston; Buck said "there is considerable of it coming through, I will do all I possibly can for you in getting information, when it is coming"; five or six days later Buck telephoned to him at Salt Lake City at 11:15 p.m. that a Graham truck was on the way to the West with a load of liquor; that two men were in the truck and it was being led by a decoy car painted green in which was a man and woman; Buck also told him the Wyoming license number on the truck. The enforcement officer on receiving this information went out on the highway in an auto with two deputy sheriffs and a prohibition agent and waited for the truck. About 2:45 a.m. the green decoy car came and a few seconds later the truck came. By throwing lights on the truck the enforcement officer saw the license number given him by Buck. Then a race ensued. The decoy car got in the way of the pursuing officers, but they finally passed it, stopped the truck, found it was carrying fifteen ten-gallon kegs of whisky, arrested Costin and the man with him, and returned to Salt Lake City. The information from Buck, its corroboration, and the circumstances immediately preceding the search, leave no doubt the enforcement officer had probable cause to make it. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790.
The judgment is affirmed. The appeal is without merit. Mandate may issue on entry of judgment here.