Opinion
No. 228, Docket 21186.
June 20, 1949.
Appeal from the United States District Court for the District of Connecticut.
Libel by the United States of America for forfeiture pursuant to 49 U.S.C.A. § 781 et seq., of an automobile claimed by Charles E. Physic and seized by the United States for alleged use to transport heroin lacking tax paid internal revenue stamps. From an adverse judgment, claimant appeals.
Judgment reversed and cause remanded.
This is an action by the United States for forfeiture, pursuant to 49 U.S.C.A. § 781 et seq., of an automobile seized by the United States on the ground that it had been used to transport heroin not bearing appropriate tax-paid internal revenue stamps. Appellant, Physic, answered the libel, claiming ownership of the automobile. At the trial before a judge without a jury, the government, as proof of the violation of the statute, offered the following evidence: Murphy, a United States Narcotic Agent for the Connecticut area, testified that, on June 27, 1947, he received a letter "from our Boston Office," informing him that this automobile, identified by its registration number and model, "might go to New York City." On June 28, he saw that automobile at the Greenwich, Connecticut, toll-gate on the Merritt Parkway. He recognized McRogers who was driving the car, which proceeded northward on the Parkway. Murphy, by telephone, notified the Connecticut State Police. State Police officers seized the car at Westport, Connecticut, and took it to the police barracks. There Murphy and one of the state policemen searched the car. In it they found the heroin as described in the libel. Neither Murphy nor the police officer had a search warrant or a warrant of arrest. Physic moved to suppress this evidence on the ground that the search was illegal. This motion was denied.
The following evidence was also introduced. On April 15, 1948, Physic, under an indictment pursuant to 21 U.S.C.A. § 174, had been tried for unlawfully transporting this same heroin; before that trial, Physic had moved to suppress the evidence obtained by the same search; that motion had been denied; he was acquitted by the jury and discharged.
The trial judge, in the forfeiture suit, made the following conclusions of law: "Having previously raised the issue in a criminal proceeding and the issue having been determined adversely to him, the claimant may not now move to suppress the evidence obtained by the search of the vehicle. * * * The acquittal of the owner of the car in the criminal case is not res adjudicata with regard to the issues of the condemnation and forfeiture proceedings, since innocence of the owner is no defense to the libel."
Adrian W. Maher, New Haven, Conn., for United States.
William H. Lewis, Jr., Boston, Mass. (Raymond H. Atamian, Boston, Mass., of counsel), for Charles E. Physic.
Before L. HAND, CLARK and FRANK, Circuit Judges.
1. Physic's acquittal in the criminal action is not an adjudication on which he can rely here; Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 82 L.Ed. 917. Nor is the ruling on the motion to suppress made in that criminal action an adjudication adverse to him on which the government can rely here; for that ruling, being interlocutory, was not appealable until final judgment, and, after Physic's acquittal, he could not appeal.
2. It has been assumed that, under Carroll v. United States, 267 U.S. 132, 160, 161, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, and Husty v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407 it was settled that such a search of an automobile, without a warrant, as occurred here, was valid even if justified solely by hearsay evidence. Remarks made in United States v. Di Re, 332 U.S. 581, 584-586, 68 S.Ct. 222, 223, 92 L. Ed. 210, without deciding the question, throw some doubt on the view that "an automobile is more vulnerable to search without warrant than is other property" when, as here, no statute (such as the National Prohibition Act, 27 U.S.C.A. § 1 et seq., expressly authorizes such a search. The Court, however, left the question open. Accordingly, we shall, although hesitantly, proceed on the assumption that the search here would have been valid if based on sufficient hearsay. But, especially in the light of the Di Re remarks, we think that the government must prove at least what the hearsay was, and that it must be such as would have led a reasonable man to believe that the car carried the contraband. Since here there was no such proof, the motion to suppress should have been granted. Accordingly, the judgment cannot stand since, except for the fruit of the search, the record is lacking in any evidence to support the forfeiture.
See also Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151.
See also Trupiano v. United States, 334 U.S. 699, 704-705, 68 S.Ct. 1229, 92 L.Ed. 1663.
It will suffice to prove that the officer's superior, who directed the officer to make the search, has such hearsay information.
Reversed and remanded.