Forman, Freedman and Seitz, Circuit Judges. Forman, Circuit Judge (concurring).
The appellant ("defendant") was convicted by a jury of possessing distilled spirits without the required stamp, in violation of 26 U.S.C. § 5205(a) (2), and contrary to 26 U.S.C. § 5604(a) (1), and of assaulting an officer of the United States in violation of 18 U.S.C. § 111.
As stated in defendant's brief, "the basis for [the] appeal in this case is that [the] motion to suppress should have been granted." The court below denied defendant's pre-trial motion to suppress evidence seized pursuant to a search warrant. The first issue is whether the facts disclosed at the hearing on the motion to suppress evidence demonstrate that the search warrant was validly issued. We proceed to summarize them as found by the court below.
On January 19, 1965, Sams, a government agent, while driving along a road at night on another mission, saw defendant pull out in front of him from a side street. Because he knew defendant to be a previous violator of liquor laws and because he had heard from a usually reliable source that defendant might have underground tanks on his property for the storage of unstamped moonshine whiskey, Sams decided to investigate. He watched defendant pull into his driveway. He drove on past defendant's house and turned around, drove back past defendant's house again, parked his car on a side street a block away, walked back past defendant's house, and then stepped a few feet from the sidewalk onto a piece of vacant land (the ownership of which is not shown in this record) adjacent to defendant's property and laid down among some shrubs. From this vantage point Sams saw the car defendant had driven into his separate garage and also observed a man moving about inside the open door. Although the nearby street lights and a light from the house plus whatever natural lighting there may have been did not permit Sams to be sure that the man approximately fifteen yards distant was the defendant, he could see objects being taken from the car and placed on the garage floor, could hear a loud gurgling noise, and could smell the distinctive odor of moonshine whiskey.
After observing the man's activity for ten minutes Sams stood up and walked toward the garage with the intention of placing him under arrest. Upon recognizing the defendant, Sams identified himself and asked what was going on. Defendant replied that he was not doing anything. During a conversation which lasted five or six minutes Sams from outside observed liquid being poured into an opening in the garage floor. Up to this point Sams did not announce that the defendant was under arrest.
Suddenly defendant struck Sams, knocking him to the ground. As he struggled to his feet Sams told defendant that he was crazy to strike a federal officer and that he would have to be taken into custody. Defendant responded by striking Sams again, rendering him temporarily unconscious in the driveway. Sams rolled out of the way just before defendant backed the car out into the street and drove off. Later at the hospital Sams related the incident to a fellow agent who signed the affidavit upon which the search warrant was issued.*fn1 The next morning the search warrant was served. Two large tanks were dug up from under the garage, one of which contained 104 gallons of unstamped liquor. Over a dozen plastic jugs were also seized.
It is clear from a reading of the affidavit that the agent's knowledge concerning the defendant when combined with what he saw, heard, and smelled before leaving his vantage point on the vacant land was legally sufficient to support the "probable cause" prerequisite to the issuance of the warrant.*fn2 Recognizing that the absence of an established trespass upon defendant's property at this time may not in and of itself be determinative of the reasonableness of the search, see McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948); Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), we find nothing which might be said to have been constitutionally unreasonable in the agent's actions in so observing defendant. Certainly defendant cannot complain that, solely because of a possible technical trespass to property not shown to be owned by him, the information which the agent acquired through observations before walking toward the garage was illegally obtained. United States v. Romano, 330 F.2d 566 (2nd Cir. 1964), cert. den. 380 U.S. 942, 85 S. Ct. 1020, 13 L. Ed. 2d 961, reh. den. 381 U.S. 921, 85 S. Ct. 1530, 14 L. Ed. 2d 441, aff. 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210. We, of course, need not decide whether our decision would be different had the evidence shown that the agent made these observations while a trespasser on defendant's property.
The affidavit also included information which the agent procured after walking toward defendant's garage, including the positive identification of defendant and the observation that liquid was being poured into an opening in the garage floor. The affidavit in addition described the assault. While we are disposed to believe that the agent's entry on to the property admittedly owned by defendant was justified under the circumstances, let us assume that the entry was illegal and that the information obtained at that time was improperly included in the affidavit for the search warrant. Nevertheless, the law is quite clear that the inclusion of illegally obtained evidence does not vitiate a search warrant which is otherwise validly issued upon probable cause reflected in the affidavit and based on proper sources. Clay v. United States, 246 F.2d 298 (5th Cir. 1957), cert. den. 355 U.S. 863, 78 S. Ct. 96, 2 L. Ed. 2d 69; Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1963). Here the evidence sufficient to support "probable cause" was not procured as a result of the allegedly illegal activity, and thus could not be said to be the fruit of a poisoned tree. Nor could the allegedly improper material in the affidavit have affected the scope of the warrant issued. We believe that the following language from United States v. Epstein, 240 F. Supp. 80 (D.C.S.D.N.Y.1965), is pertinent to the present case:
"This is not to say that law enforcement officials may with impunity include impermissible matter in applications for search warrants in the hope that a Commissioner might thereby be persuaded to find probable cause where otherwise none exists or the issue is in doubt; * * *. But in a case like the present one, where the challenged matter is merely cumulative, no such danger is run and the warrant may be upheld." 240 F. Supp. 80, 83.
We conclude that the search warrant was legally issued.
We turn to the second issue concerning the assault. Not having the trial transcript before us, we assume along with counsel for both sides that the evidence presented at trial relevant to the present issue was essentially the same as that adduced at the hearing on the motion to suppress. We find that the agent when he approached the defendant's garage, having heard of his reputation and having observed suspicious activity from an adjacent lot, was acting in the performance of official duties. He engaged the defendant in conversation without attempting to apprehend him or to break into any structures on his property. "When the performance of his duty requires an officer of the law to enter upon private property, his conduct, otherwise a trespass, is justifiable". Giacona v. United States 257 F.2d 450, 456 (5th Cir. 1958). This issue was for the jury. Foster v. United States, 296 F.2d 65 (5th Cir. 1962). There is no evidence that the agent refused to leave defendant's property after defendant told him to do so.
Although the agent testified that he approached defendant with the intention to arrest him, he did not immediately do so. Nevertheless, it must have been obvious to defendant that the agent was present in an official capacity and not as an ordinary trespasser. The agent did not engage in an unreasonable search prior to the attempted arrest. Thus, there was no arguable basis ...