The opinion of the court was delivered by: MARSH
An indictment containing five counts was returned against the defendant, Everett N. Carter. The first count charged the carrying on of the business of a distiller without having given the bond required by law, 26 U.S.C.A. § 2833. The second count charged the carrying on of the business of a distiller with intent to defraud the United States of the tax upon a certain quantity of spirits distilled by him, id. The third count charged possession of an unregistered still and distilling apparatus, 26 U.S.C.A. § 2810. The fourth count charged the making and fermenting of a certain quantity of mash fit for distillation and production of alcohol in a building and on premises other than a duly authorized distillery, 26 U.S.C.A. § 2834. The fifth count charged the depositing and concealing of a certain quantity of distilled spirits with intent to defraud the United States of the tax imposed thereon, 26 U.S.C.A. § 3321.
Carter presented a petition to suppress evidence seized in a shed on his property by revenue agents without a search warrant following alleged illegal entry upon his property. After hearing, the court makes the following.
1. In January, 1953, an investigator of the Alcohol and Tobacco Tax Division of the United States Treasury received general information concerning illegal manufacture of liquor and other violations allegedly taking place in the vicinity of Webster Village, Rostraver Township, Westmoreland County, Pennsylvania. Six months later all the leads had been run down with the exception of investigating two abandoned coal mine openings for a still.
2. Two of the agents had previously observed these coal mine openings in the vicinity of the property of the defendant, Everett N. Carter.
3. The defendant's property consisted of 4 acres of land, having thereon erected his dwelling, the adjacent dwelling of an adult son, a small frame shed, and other outbuildings. The neighborhood was sparsely settled.
4. On June 29, 1953, about 12:15 P.M., three agents of the Division, John C. Clifford, Alva D. Stutler and Joseph N. Sample, for the purpose of investigating these old coal mine openings, drove their car off the public highway into defendant's driveway in front of his dwelling.
5. On this trip there were three agents instead of the usual detail of two agents because all the other leads had been eliminated and a discovery of a still in a mine opening was anticipated.
6. In the driveway the agents inquired of the eight-year old son of the defendant whether his father was at home, and followed the lad up the driveway to the rear of defendant's dwelling house, then to the rear of his son's dwelling house, then to the shed which was a few feet from the latter.
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 ...