Opinion
No. 9040.
Argued November 5, 1963.
Decided November 14, 1963.
Monroe M. Redden, Hendersonville, N.C. (W. Roy Francis, Waynesville, N.C., on the brief), for appellants.
William Medford, U.S. Atty., and Robert J. Robinson, Asst. U.S. Atty. (James O. Israel, Jr., Asst. U.S. Atty., on the brief), for appellee.
Before BOREMAN and BELL, Circuit Judges, and BUTZNER, District Judge.
The defendants seek reversal of their conviction for the unlawful possession of nontaxpaid whiskey on the ground that the Trial Court erred in failing to grant their motion to suppress evidence seized from the car in which they were riding.
The case was first tried in May 1962, the jury failed to agree and the Court declared a mistrial. At that trial the arresting officer testified concerning the search and seizure.
At the second trial of the case in May 1963 objection was made for the first time to the admissibility of evidence seized by the officer.
The defendants failed to comply with Rule 41(e), which provides in part that the motion to suppress "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 may entertain the motion at the trial or hearing."
We find that the Court did not abuse its discretion in denying the motion at the trial. United States v. Milanovich, 303 F.2d 626 (4th Cir. 1962).
The judgment of conviction is affirmed.
Affirmed.