Before KALODNER, STALEY and ORMAN, Circuit Judges.
This appeal requires us to determine both the appealability and correctness of a district court's order refusing to suppress the use of property as evidence and to direct its return, where such property was seized by arresting agents as the result of a search allegedly made in violation of the Constitution.
Appellant Mercer and one Zilka were arrested by agents of the Treasury Department at a railroad siding where sugar was being unloaded from a boxcar into a tractor-trailer. The agents searched Mercer and the tractor-trailer and seized the following property: four hundred bags of sugar, one hand truck, one dock ramp, the tractor-trailer, and currency that was on Mercer's person. Murphy, the other appellant, voluntarily surrendered a few days after these arrests. The agents did not have warrants to make the arrests or conduct the searches.
After waiving a hearing before a Commissioner on a complaint charging them with possession of sugar and other property in violation of 26 U.S.C. § 5686(a),*fn1 a misdemeanor, appellants were held over to await action of the grand jury. Thereafter, while on bail and before indictment, appellants filed a motion under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C., in the district court to suppress the use of the seized property as evidence and to order its return, alleging that it was seized in violation of the Constitution. The motion was denied and this appeal followed.
During argument on the merits, this court, sua sponte, raised the question of the appealability of the order, i.e., was it a final decision under 28 U.S.C. § 1291. Appellants contend that the order is final because the motion was filed before an indictment was returned. The government contends, however, that the order is interlocutory on the ground that the primary purpose of the motion was to suppress use of the property as evidence, and that its return is only sought incidentally. We think that our prior holdings in United States v. Bianco, 3 Cir., 1951, 189 F.2d 716, and In re Sana Laboratories, Inc., 3 Cir., 1940, 115 F.2d 717, certiorari denied Sana Laboratories, Inc. v. United States, 1941, 312 U.S. 688, 61 S. Ct. 615, 85 L. Ed. 1125, support appellants' position and are binding on us.*fn2
Appellants and the government recognize, as indeed they must, that the legality of the search and seizure depends upon the validity of the arrests. The appellants contend that the arrests were unlawful because, as they say, the arresting agents did not have probable cause to believe that a misdemeanor was being committed in their presence. The government contends, and the district court found, that probable cause existed.
The authority of the arresting agents is contained in 26 U.S.C. § 7608, which reads as follows:
"Authority of internal revenue enforcement officers.
"Any investigator, agent, or other internal revenue officer by whatever term designated, whom the Secretary or his delegate charges with the duty of enforcing any of the criminal, seizure, or forfeiture provisions of Subtitle E or any other law of the United States * * * may -
"(3) in respect to the performance of such duty, make arrests without warrant for any offense against the United States committed in his presence * * *."
Enacted in 1958, this provision was not meant to change or in any way limit the then existing authority of internal revenue agents to make arrests or conduct searches as an incident thereto.*fn3
The Court made it clear in Carroll v. United States, 1925, 267 U.S. 132, 156-157, 45 S. Ct. 280, 69 L. Ed. 543, that an officer can make an arrest without first securing a warrant where he has probable cause to believe that a misdemeanor is being committed in his presence.*fn4 Probable cause does not require, as the Supreme Court has so frequently said, that the arresting officers have evidence to establish criminal guilt. Brinegar v. United States, 1949, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879. On the other hand, a mere inkling or suspicion is not enough. United States v. Walker, 7 Cir., 1957, 246 F.2d 519. "Probable cause," Justice Douglas said in Henry v. United States, 1959, 361 U.S. 98, 102, 80 S. Ct. 168, 171, 4 L. Ed. 2d 134, "exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." We turn, then, to determining whether the arresting officers here knew and saw enough at the time of the arrests to permit them, as prudent men, to believe that a misdemeanor was being committed in their presence. Based on the uncontradicted facts in the record, we think that the answer is yes.
On August 26, 1960, Jennis, an investigator for the Alcohol and Tobacco Tax Unit of the Treasury Department, took a position from which he observed a boxcar, containing sugar, that was standing on a railroad siding in Forestville, Pennsylvania. The shipment was consigned to the "Murphy Products Company, Harrisville, Pa. (Sub Zilka Flour Co.)", meaning, thereby, that the ...