1. The Fourth Amendment does not prohibit the search, without
warrant, of an automobile, for liquor illegally transported or
possessed, if the search is upon probable cause, and arrest for the
transportation or possession need not precede the search. P.
282 U. S.
700.
Page 282 U. S. 695
2. To show probable cause, it is not necessary that the
arresting officer should have had before him legal evidence of the
suspected act. It is enough if the apparent facts which have come
to his attention are sufficient, in the circumstances, to lead a
reasonably discreet and prudent man to believe that liquor is
illegally possessed in the automobile to be searched. P.
282 U. S.
700.
3. Acting on information, reasonably believed by him to be
reliable, that one of the defendants herein, known to him to have
been engaged in the illegal liquor traffic, possessed liquor in an
automobile of particular description and location, a prohibition
officer went to the place and found the automobile and the
defendant in company with other, who, upon being hailed by the
officer, tried to escape.
Held:
(1) That there were reasonable grounds for the officer's belief
that liquor illegally possessed would be found in the car. P.
282 U. S.
701.
(2) The search was not unreasonable because sufficient time
elapsed between the receipt by the officer of the information and
the search of the car to have enabled him to procure a search
warrant, since he could not know how soon the defendant would come
to the car or how soon it would be removed. P.
282 U. S.
701.
4. Rulings of the trial court excluding questions seeking to
establish the name and identity of one who gave information to a
prohibition officer upon which he based a search of defendant's
automobile are not considered here, because not assigned as error
and, so far as appears, not presented or passed upon, in the court
of appeals. P.
282 U. S.
701.
5. Where an indictment charged the transportation of
intoxicating liquor, as a first offense by two defendants, and in
another count, possession of intoxicating liquor as a first offense
by one of them and as a third offense by the other, naming in each
count a time and place within the jurisdiction of the court,
held, that failure to state more specifically the amount
of the liquor, and the time and place of the offenses, did not
affect the validity of the indictment, but, at most, furnished
ground for demanding a bill of particulars. P.
282 U. S.
702.
6. The Act of March 2, 1929, known as the Jones Act, which
increased the penalty for illegal manufacture, sale, etc., of
intoxicating liquor, with the proviso
"that it is the intent of Congress that the court, in imposing
sentence hereunder, should discriminate between casual or slight
violations and habitual sales of intoxicating liquor, or attempts
to commercialize violations of the law,"
added no new criminal offense to those enumerated and defined in
the National Prohibition
Page 282 U. S. 696
Act, and therefore added nothing to the material allegations
required to be set out in indictments for those offenses. P.
282 U. S.
702.
7. The proviso mentioned is only a guide to the discretion of
the court in imposing the increased sentences for those offenses
for which a increased penalty is authorized by the Act. P.
282 U. S.
702.
8. The maximum penalty for illegal possession of intoxicating
liquor, under § 29 of the National Prohibition Act, was not
increased by the Jones Act. P.
282 U. S.
703.
9. Possession of intoxicating liquor in connection with its
illegal transportation does not, in itself, justify a heavy
sentence under the Jones Act for the illegal transportation, and
does not necessarily justify such sentence, when there has been a
former conviction for illegal possession only. P.
282 U. S.
703.
Certiorari,
post, p. 831, to review conviction on two
counts, for unlawful possession and for unlawful transportation of
intoxicating liquor.
Reversed.
Page 282 U. S. 699
MR. JUSTICE STONE delivered the opinion of the Court.
Petitioners were convicted in the District Court for Western
Michigan upon two counts of an indictment, the first for
transporting, and the second for possessing, intoxicating liquors
in violation of the National Prohibition Act. They had been
apprehended while in an automobile, and arrested without warrant.
The officers had searched the automobile, without warrant, and
found a quantity of intoxicating liquor, which they had seized. A
motion by petitioners to suppress the use as evidence of the
information thus acquired, on the ground that the arrest and the
search and seizure were illegal, was denied. Each count of the
indictment set forth a single offense, and the second, that for
possession, alleged two prior convictions of petitioner Husty for
unlawful possession. Petitioners were sentenced generally on the
indictment, without reference to either court, Husty to five years'
imprisonment and to pay a fine of $3,000 and Laurel to imprisonment
for one year and six months.
In the course of the proceedings before the district court,
petitioners, by appropriate motions and exceptions, challenged the
correctness of the order denying the motion to suppress evidence;
the sufficiency of the indictment, and the legality of the
sentences, the last on the grounds that they were not authorized by
the Jones Act of March 2, 1929, c. 473, 45 Stat. 1446, and exceeded
the maximum penalties which could be imposed under § 29 of the
National Prohibition Act.
The Court of Appeals for the Sixth Circuit, without opinion,
affirmed the convictions under both counts and held the sentences
to be supported by the convictions upon the second count -- that
for possession -- alone. This Court granted certiorari on a
petition which asked review of the rulings of the district court
which have been
Page 282 U. S. 700
mentioned; the government opposing on the ground, among others,
that the sentences were proper under the possession count.
1. In the proceeding to suppress evidence, one of the
prohibition officers who made the arrest testified that he had
known Husty to be a "bootlegger" for a number of years before the
arrest, and had arrested him in 1922 and 1928 for violations of the
National Prohibition Act, both arrests resulting in conviction and
the second in imprisonment. On the day of petitioners' arrest, the
witness had received information over the telephone that Husty had
two loads of liquor in automobiles of a particular make and
description, parked in particular places on named streets. The
witness was well acquainted with his informant, having known him
for about eight years, and had come in frequent contact with him in
business and socially. The same person had given similar
information to the witness before, which had always been found to
be reliable. The officer believed the information, and, acting upon
it, found one of the cars described at the point indicated, and
unattended. Later, petitioners and a third man entered the car.
Husty had started it when he was stopped by the officers. Laurel
and the third man fled, and the latter escaped. The officers,
believing that the car contained intoxicating liquor, searched it
and found eighteen cases of whisky.
The Fourth Amendment does not prohibit the search, without
warrant, of an automobile, for liquor illegally transported or
possessed, if the search is upon probable cause, and arrest for the
transportation or possession need not precede the search.
Carroll v. United States, 267 U.
S. 132. We think the testimony which we have summarized
is ample to establish the lawfulness of the present search. To show
probable cause, it is not necessary that the arresting officer
should have had before him
Page 282 U. S. 701
legal evidence of the suspected illegal act.
Dumbra v.
United States, 268 U. S. 435,
268 U. S. 441;
Carroll v. United States, supra. It is enough if the
apparent facts which have come to his attention are sufficient, in
the circumstances, to lead a reasonably discreet and prudent man to
believe that liquor is illegally possessed in the automobile to be
searched.
See Dumbra v. United States, supra; Stacey v.
Emery, 97 U. S. 642,
97 U. S.
645.
Here, the information, reasonably believed by the officer to be
reliable, that Husty, known to him to have been engaged in the
illegal traffic, possessed liquor in an automobile of particular
description and location, the subsequent discovery of the
automobile at the point indicated, in the control of Husty, and the
prompt attempt of his two companions to escape when hailed by the
officers, were reasonable grounds for his belief that liquor
illegally possessed would be found in the car. The search was not
unreasonable, because, as petitioners argue, sufficient time
elapsed between the receipt by the officer of the information and
the search of the car to have enabled him to procure a search
warrant. He could not know when Husty would come to the car, or how
soon it would be removed. In such circumstances, we do not think
the officers should be required to speculate upon the chances of
successfully carrying out the search, after the delay and
withdrawal from the scene of one or more officers which would have
been necessary to procure a warrant. The search was therefore on
probable cause, and not unreasonable, and the motion to suppress
the evidence was rightly denied.
Carroll v. United States,
supra.
In the course of the hearing on the motion, questions by
petitioners seeking to establish the name and identity of the
officer's informant were excluded. Petitioners ask review of these
rulings on the evidence, but we do not consider them, since they
were not assigned as error on the appeal
Page 282 U. S. 702
to the court of appeals, and it does not appear that they were
presented or passed upon there.
Duignan v. United States,
274 U. S. 195,
274 U. S. 200.
2. The indictment is in the form authorized by § 32 of the
National Prohibition Act. It charges the transportation of
intoxicating liquor as a first offense by both petitioners, and
possession as a first offense by Laurel, and as a third offense by
Husty at a named time, and at a place within the jurisdiction of
the court. Failure to state more specifically the amount of the
liquor and the time and place of the offenses charged does not
affect the validity of the indictment. It was, at most, ground for
a bill of particulars if timely application had been made.
See
Durland v. United States, 161 U. S. 306,
161 U. S.
315.
It is urged that the indictment is defective because it fails to
state whether the offenses charged were felonies or misdemeanors,
and whether the petitioners were charged with casual or slight
violations, or habitual sales of intoxicating liquor, or attempts
to commercialize violations of the law, which, petitioners argue,
were made new or aggravated offenses by the Jones Act.
But the Jones Act created no new crime. It increased the
penalties for "illegal manufacture, sale, transportation,
importation, or exportation," as defined by § 1, title II of the
National Prohibition Act, to a fine not exceeding $10,000, or
imprisonment not exceeding five years, or both, and added as a
proviso,
"that it is the intent of Congress that the court, in imposing
sentence hereunder, should discriminate between casual or slight
violations and habitual sales of intoxicating liquor, or attempts
to commercialize violations of the law."
As the Act added no new criminal offense to those enumerated and
defined in the National Prohibition Act, it added nothing to the
material allegations required to be set out in indictments for
those offenses. The proviso is only a
Page 282 U. S. 703
guide to the discretion of the court in imposing the increased
sentences for those offenses for which an increased penalty is
authorized by the Act.
See Ross v. United States, 37 F.2d
557,
cert. denied, 281 U.S. 767;
McElvogue v. United
States, 40 F.2d 889,
cert. denied, 282 U.S. 845.
3. The sentence imposed on each of the petitioners exceeded the
maximum penalty for illegal possession under § 29 of the National
Prohibition Act, which is, for a first offense, $500 fine, and for
a third offense, "not less than $500" fine and not more than two
years' imprisonment. As illegal possession is not one of the
offenses enumerated in the Jones Act for which increased penalties
are provided, and as the sentences imposed exceed any authorized by
§ 29 of the National Prohibition Act, the court below was in error
in holding that they were supported by convictions on the second
count, that for possession.
Since the convictions were upheld under the first count,
sentences under the Jones Act were authorized, transportation being
one of the offenses enumerated in that Act. But the possession
alleged in the second count was not, in itself, necessarily an
aggravation of the transportation charge which would warrant heavy
sentences under the Jones Act, as to either petitioner, and could
not be as to Laurel, who, so far as the evidence shows, was a first
offender both as to the transportation and possession. While the
district court may have had before it facts other than those
appearing of record which it was entitled to consider in imposing
sentence under the Jones Act, we think, in view of the confusion
which has arisen with respect to the propriety of the sentences
under the possession count, that the district court should be
afforded an opportunity in its discretion to resentence the
petitioners in the view of the applicable statutes, as stated.
Page 282 U. S. 704
The judgment will be reversed and the cause remanded to the
district court for further proceedings in conformity with this
opinion.
Reversed.
