defendant himself was illegally manufacturing whiskey in the shed. It is to be inferred that, as a precautionary measure, all three agents went along on the walk to the shed to make inquiries because it was a possibility that a resident of the dwellings might be operating a still in one of the coal mine openings.
8. When the agents passed to the rear of the dwelling houses and from there to the shed they detected a strong odor resembling the cooking of mash.
9. When the agent Clifford approached the shed the defendant opened its door and stepped out; upon seeing the agents he took a few quick steps in the opposite direction and then stopped and answered Mr. Clifford's questions.
10. Without touching any part of the shed and without entering therein all the agents could plainly see through the open door a still in operation in the interior of the shed. They could see the fire used to cook the mash and could smell the mash.
11. Agent Clifford exhibited to defendant his credentials and arrested him.
12. Defendant then and there frankly admitted to the agents that he owned the still and was making whiskey for his own use.
13. After the arrest the agents entered and searched the shed, destroyed the still and took samples of the mash and whiskey found therein, which items of evidence are the subject of defendant's petition to suppress.
14. The agents did not have a search warrant nor a warrant for the arrest of the defendant.
15. As a result of the seizure of the mash and whiskey defendant was indicted.
The entry upon defendant's land to make inquiries concerning a still supposedly located in an abandoned coal mine opening somewhere in the vicinity and to seek permission to inspect nearby openings on the land of the defendant was not prohibited by the Fourth Amendment, even though the agents anticipated discovery of a still in one of the latter. Hester v. United States, 1924, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898; Ellison v. United States, D.C.Cir. 1953, 206 F.2d 476; Martin v. United States, 5 Cir., 1946, 155 F.2d 503. When the defendant emerged from his shed, exposing to the agents' gaze an operating still which they could both smell and see through the open door, they not only had probable cause to arrest defendant but it was their duty to do so; and an immediate search of the shed and seizure of evidence was reasonable and proper. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653; Martin v. United States, 4 Cir., 1950, 183 F.2d 436, certiorari denied 340 U.S. 904, 71 S. Ct. 280, 95 L. Ed. 654; Fisher v. United States, D.C.Cir.1953, 205 F.2d 702; United States v. Feldman, 3 Cir., 1939, 104 F.2d 255, certiorari denied 308 U.S. 579, 60 S. Ct. 97, 84 L. Ed. 485.
As stated in the Ellison case, 206 F.2d at page 478: 'There was no intrusion into (defendant's) privacy. Nor did mere observation constitute a 'search.' If an officer sees the fruits of crime -- or what he has good reason to believe to be the fruits of crime -- lying freely exposed upon a suspect's property, he is not required to look the other way, or disregard the evidence his senses bring him. Law enforcement is difficult enough, without requiring a police officer to free his mind of clues lying flatly before him.'
Undoubtedly, revenue officers may make a valid arrest without a warrant for a crime committed in their presence, or for a felony of which they had reasonable cause to believe defendant guilty. Hester v. United States, supra; Martin v. United States, 5 Cir., 155 F.2d 503, supra. In the Martin case, 155 F.2d at page 505, the court said: 'When an officer is apprised by his senses that a crime is being committed in his presence, he may arrest and search and seize without a warrant.'
The defendant argues that the entry onto his land was an illegal trespass and vitiates the arrest, search and seizure subsequently occurring, but in Hester v. United States, supra, where the agents went upon the land in consequence of information, Mr. Justice Holmes held that even if there had been a trespass, such a conclusion would not necessarily follow. In United States v. Feldman, supra, 104 F.2d at page 256 the court held that 'The protection of the Fourth Amendment does not extend to the land surrounding the house.'
In the instant case, access to the shed and the seizure of the evidence were not gained in the first instance by color of office as in Johnson v. United States, 1948, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436, cited by defendant. There was no raid or other show of authority by the agents. The shed was entered and the evidence seized only in consequence of the prior arrest.
Kroska v. United States, 8 Cir., 1931, 51 F.2d 330, is also cited by defendant as authority for an opposite conclusion. In that case the defendant was charged with transporting moonshine whiskey in violation of the National Prohibition Act. The officers had observed the defendant's coupe turn from the public highway into his farmyard. They entered the yard not, as here, for some lawful purpose such as making inquiries, but ostensibly for the purpose of searching the coupe which they could not legally have done even on the public highway without probable cause. Carroll v. United States, 1925, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543.
In the yard they observed a keg in the partially open back deck of the coupe and detected the odor of whiskey. Thereupon one of the officers entered the defendant's dwelling uninvited and arrested him. They did not have a warrant for search or arrest. Since the record did not disclose probable cause for entering upon defendant's land and making a search the court branded the seizure and arrest as unwarranted and illegal.
We think there is an obvious distinction between the Kroska case and the instant case. There the evidence was seized by the agents without probable cause; 'The record is absolutely barren of any evidence indicating why the prohibition agents went to defendant's farm.' (51 F.2d 332.) Here the agents went upon the land to make inquiries and the evidence was seized after defendant exposed the operating still to the view of the agents; it was the act of the defendant which gave the agents reasonable grounds to suspect that a felony was being committed, probable cause to arrest him, and justification to seize the evidence.
United States v. Feldman, supra, decided in this Circuit, presents facts which are quite similar to those in the case at hand, except that there the agents suspected the defendant of making moonshine whiskey before they went upon his land and discovered the commission of felonies by looking through the windows and detecting a strong odor of cooking mash coming from the windows. The appellate court there held, as we do here, that the subsequent arrest and seizure of evidence were legal though made without warrants.
Conclusions of Law
1. On June 29, 1953, the defendant was engaged in the commission of felonies prohibited by the Internal Revenue Code, 26 U.S.C.A. §§ 2833, 2810, 2834 and 3321, by illegally operating a still in a shed located upon his land.
2. The shed formed a part of the curtilage of the defendant's dwelling house.
3. Prior to entering upon defendant's property the agents did not have probable cause upon which to base a warrant of arrest for defendant or to secure a search warrant for the shed.
4. The entry of the agents into the defendant's driveway, their walk to the door of the shed to make inquiries, and their observance of the operating still through the door opened voluntarily by the defendant, did not constitute an unreasonable search prohibited by the Fourth Amendment to the Constitution of the United States.
5. After smelling the cooking mash and observing the still in operation in the shed through its open door, the agents had probable cause to believe that a felony was being committed in their presence.
6. The arrest of defendant without a warrant was based upon probable cause and was valid.
7. The shed was under the immediate control of defendant at the time he was arrested.
8. The search of the shed and the seizure of samples of mash and whiskey for evidentiary purposes following the valid arrest of defendant and his admission of guilt constituted a reasonable search and seizure and was not within the prohibition of the Fourth Amendment.
9. The motion of defendant to suppress evidence should be denied.