Sams succeeded in reaching his parked car, driving to a phone booth, requesting the Clairton police to put Sterling's property under surveillance until federal liquor agents could arrive, and activating two such agents, and then driving to the Homestead hospital for treatment.
Stephen Adler, one of the enforcement officers Sams had called, interviewed Sams at the hospital, and on the following day procured from United States Commissioner Alex L. McNaugher a search warrant. Meanwhile Sterling had surrendered at the Clairton police station. Adler took the warrant to Sterling's house, and found no one home. He then joined other enforcement officers who were in their cars along the road keeping the premises under surveillance. A search was then made of the garage. Fifteen one-gallon plastic jugs, some of which were moist with the odor of moonshine were found. Also two sets of pipes were found, some of which smelled of moonshine. Digging disclosed a 250-gallon tank containing 104 gallons of moonshine. A tank of smaller capacity was empty.
The foregoing facts disclose that the evidence which Sterling seeks to suppress was duly obtained pursuant to a valid search warrant. Sterling seeks to go behind the warrant and establish that the whole search was the "fruit of a poisonous tree". However, the testimony shows that the officer executing the warrant (as well as Sams) had long had a tip from a reliable informer regarding the tanks, and the warrant could stand on the basis of independent information unconnected with the allegedly poisonous tree.
But we find that the fruit of the tree involved here is edible and free of venom.
Sterling's point d'appui in the attempted proof of unreasonable search and seizure is the contention that Sams committed a trespass on private property when he stationed himself on the uncultivated and unoccupied terrain from which he watched the activities under way in Sterling's garage through the open garage door. Admittedly Sams was off the public highway on vacant land, which doubtless belonged to someone.
Unless it belonged to Sterling, he is without standing to assert the owner's rights. Premier Pabst Sales Co. v. Gross-cup, 298 U.S. 226, 227, 56 S. Ct. 754, 80 L. Ed. 1155 (1936); Ex parte Albert Levitt, 302 U.S. 633, 638, 58 S. Ct. 1, 82 L. Ed. 493 (1937); Tileston v. Ullman, 318 U.S. 44, 46, 63 S. Ct. 493, 87 L. Ed. 603 (1943); Doremus v. Bd. of Education, 342 U.S. 429, 433-434, 72 S. Ct. 394, 96 L. Ed. 475 (1952); United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960); Ker v. State of California, 374 U.S. 23, 38, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).
There was no proof as to the precise dimensions of Sterling's property in relation to the adjacent terrain.
Even if it was Sterling's land on which Sams was stationed, we believe that an inadvertent and unconscious trespass is not enough to make the enforcement activities of Sams an unreasonable search. It must be remembered that the Fourth Amendment does not prohibit all searches, but only "unreasonable searches and seizures".
If the enforcement officer reasonably believes that he is not trespassing on the suspect's property, his acts are not unreasonable even if he technically violates the unmarked boundary line and subjects himself to the venerable remedy of trespass quare clausum fregit.
This is particularly true if, as here, the locale involved is unfenced, unmarked, unoccupied, undeveloped countryside in a state of nature.
A simple trespass without more will not invalidate an otherwise proper search and seizure. United States v. Lewis, 227 F. Supp. 433, 436 (S.D.N.Y.1964); United States v. Minker, 312 F.2d 632, 634 (C.A. 3, 1963).
Apart from the issue of trespass, of course, the case clearly establishes probable cause under the established federal standards. Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959); United States v. Sala, 209 F. Supp. 956, 958 (W.D.Pa.1962); United States v. Moriarity, 327 F.2d 345, 347-348 (C.A. 3, 1964).
The motion to suppress is denied.
The foregoing opinion shall be deemed to embody the Court's findings of fact and conclusions of law.
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