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UNITED STATES v. DAVIS

March 13, 1967

UNITED STATES of America
v.
Ernest DAVIS



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 The defendant, Ernest Davis, was indicted for possession and transportation of distilled spirits, to-wit, 25 gallons, the immediate containers thereof not having been stamped as required by law in violation of § 5205(a)(2) of Title 26, U.S.C., contrary to § 5604(a)(1) of Title 26 U.S.C. He has moved to suppress and for return of evidence seized by an agent of the Alcohol and Tobacco Tax Division of the Internal Revenue Service for the reason that the search and seizure of his motor vehicle was made without a warrant and in absence of probable cause.

 At the hearing on the motion, the only witness called by the defendant was Charles L. Daverio, the agent who had executed the search and seizure. From his testimony, we find the following facts:

 On Sunday, September 11, 1966, at approximately 9:00 o'clock in the morning, Agent Daverio received information via telephone from a reliable informer *fn1" that the defendant Davis would be transporting moonshine whiskey that morning in his 1960 Oldsmobile, and that he thought Davis would be driving on the Parkway East toward Pittsburgh. Acting on this information, the agent drove his car onto the ramp leading to the Squirrel Hill entrance to the Parkway East where he stopped at a point where he could observe the traffic on the Parkway.

 Since 1958, the defendant had been personally known to the agent who had arrested him for liquor violations and knew that he had been arrested on other occasions by state and local authorities for liquor violations.

 For a period prior to September 11th, he had been keeping the defendant's home on Rowley Street in the Hill District of Pittsburgh under surveillance, where on 5 or 6 occasions he observed the 1960 Oldsmobile parked in front of the house and was familiar with its characteristics. He had checked its license number and found that it was registered to the defendant.

 At approximately 9:40 A.M., while watching the Parkway traffic, the agent saw the defendant's Oldsmobile travelling on the Parkway headed toward Pittsburgh. The agent followed. He observed that the front of defendant's car was in a raised position, and that the rear end was in a low position, indicating something heavy in the trunk. As he drew closer, he recognized the driver as the defendant.

 At the Parkway's Bates Street exit, the agent sounded his siren and stopped defendant's car on the berm. The agent approached the defendant's car, greeted the defendant, who said: "Oh Chuck! Oh Chuck!" The agent inquired what he was carrying. The defendant replied: "You know what I've got." The agent asked: "How much?" The defendant replied: "25 gallons". The agent observed a plastic jug of the type known to be used in transporting moonshine on the rear floor of the vehicle. No Miranda warnings were given to the defendant.

 Upon request, the defendant opened the trunk of the car. In the trunk the agent found 19 glass and 6 plastic unstamped one-gallon jugs containing moonshine whiskey. He thereupon placed defendant under arrest and seized the moonshine and the car.

 Although the agent testified that he arrested the defendant after the search revealed the moonshine, we think, and so hold, that the arrest took place the moment the agent stopped the defendant's car. Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134. *fn2" At that time the accusatory stage had been reached and the defendant as a practical matter was "deprived of his freedom of action in a significant way" ( Miranda v. State of Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694). After the search, of course, the defendant was placed under formal arrest and taken into custody.

 An Internal Revenue agent is authorized to make an arrest without a warrant for any offense against the United States committed in his presence, or for any felony cognizable under the laws of the United States "if he has reasonable grounds to believe that the person to be arrested has committed, or is committing, such felony", and in respect to the performance of such duty "make seizures of property subject to forfeiture to the United States." Section 7608(a), 26 U.S.C.A.

 "The 'reasonable ground' requirement of the statute is equivalent to the 'probable cause' requirement of the Fourth Amendment." United States v. LaMacchio, 362 F.2d 383, 384 (3d Cir. 1966). LaMacchio reiterates that the legality of a warrantless arrest must be tested by this standard because if made without probable cause the subsequent search and seizure was illegal.

 Agent Daverio had a solid basis for believing that the defendant would traverse the Parkway East with a load of moonshine. Any doubt he might have had was dispelled when he observed the defendant's car pass the Squirrel Hill entrance appearing to be heavily loaded. The arrest of defendant was based upon four factors: (1) information received by the agent from a reliable informant; (2) the confirmation of that information received from the informant, viz.: that defendant would be driving his car on the ...


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