Will Parks Clay, Appellant, v. United States of America, Appellee, 239 F.2d 196 (5th Cir. 1956)

The question is not whether conviction of a person whose prior criminal record, reputation and papers in his possession at the time of seizure, support the view that he may be a gambler engaged in the numbers racket, outweighs the risk to freedom if the search and seizure of these papers is sustained. If the search and seizure was unreasonable, then, according to constitutional standards, the fundamental law established to protect the good and the bad, the wicked and the righteous, from the historical hazards to genuine liberty, compels corrective judicial action if properly invoked.

Clay is no stranger¹  to us, or to the law, or to excesses in the process of search and seizure in law enforcement. Concerning the papers seized January 28, 1954, he sought, by motion, to suppress their use in future prosecution which, save for a Complaint filed before the Commissioner, Fed.Rules Crim.Proc., rule 3, 18 U.S.C.A., has not been instituted by Information or Indictment, Fed. R. Crim. P. 7.

Whether the supposed crime was of misdemeanor or felony grade, cf. Mosely v. United States, 5 Cir., 207 F.2d 908, certiorari denied 347 U.S. 933, 74 S. Ct. 626, 98 L. Ed. 1084; Contreras v. United States, 5 Cir., 213 F.2d 96; Clay v. United States, 5 Cir., 218 F.2d 483; Reynolds v. United States, 5 Cir., 225 F.2d 123, certiorari denied 350 U.S. 914, 76 S. Ct. 197, 100 L. Ed. 801, it was one involving merely the failure to pay an occupation and excise tax²  as a gambler and the possible carrying on of that business before registering and paying the stamp tax. United States v. Kahriger, 345 U.S. 22, 73 S. Ct. 510, 97 L. Ed. 754; Lewis v. United States, 348 U.S. 419, 75 S. Ct. 415, 99 L. Ed. 475. The significant thing is that the taking, placing or handling of wagers or conducting a lottery is not a Federal crime unless registration and payment of taxes is not made. Transportation,³  as such, is not a crime. All of this is important since the mere act of a known gambler driving an automobile on a public highway will not justify an officer forcing him to stop to be searched or arrested for a suspected violation of the Federal Wagering Tax Act.

And yet that is all that occurred on January 28. Revenue Agents in two passenger cars, one privately owned, one Government owned but with no identification of its official status discernible to passing or overtaken vehicles, took up a concealed vigil on the Macon-Columbus highway about a mile east of Hester's store-residence in anticipation that, following his frequent pattern, Clay would go there for a brief stay about 2:00 o'clock in the afternoon. Clay passed this point in his Buick, driving in a normal manner at moderate speed. The two cars fell in behind him, but on attempting to overtake and stop him, Clay, saying that he was apprehensive of highway robbery, shot up his speed to 60 to 70 m. p. h., allowed his car to slip partially over in the left-hand lane across the center stripe to force the Agents' cars back, but almost immediately returned to his own lane. The Government car came abreast of Clay and the Agent pounding on the right-hand front door of the Government car (with a pistol, Clay said; by bare hand according to the Agent) ordered Clay to pull over. As Clay commenced to obey this peremptory command, the Government car cut in front of him so that, fore and aft, he was hemmed in by Revenue Agents. When the vehicles stopped, an Agent ordered Clay out of his car and then, with the first show of gentle concern, asked if they could search the car, to which Clay offered no objection. Within about two minutes, the search was made but revealed nothing. While Clay was standing near the front fender, the Agent-in-Charge, "asked him if he would permit us to search his person." Clay, without answering, reached in his pocket, took out some money, laid it on the fender of the automobile, and, about that time, while he was fumbling with his shirt pocket which contained a package of cigarettes, a small Manila-backed booklet in the shirt pocket was moved sufficiently for the Agent-in-Charge to see that it contained a row of three-digit numbers in pencil. Reacting as though he had found a strike, the Agent then announced that Clay was under arrest,⁴  demanded possession of the booklet, and after admitting that he had no search warrant, forceable took it from Clay's hand. The further search of Clay's person uncovered five adding machine tapes⁵  (called lottery ribbons) in the upper lapel pocket of his coat. One Agent reached in a pocket and brought out a roll of bills totaling $1,438.00. Later that day, he was taken before the Commissioner on a verified Complaint⁶  of one of the Agents.

This analysis then brings the case to the point where the Government, for misdemeanor or felony, not only may but must find support for the seizure in the pre-January 28 activities. For there was nothing about his conduct on the highway that day, at that time, to indicate that he was then in the act of committing either misdemeanor or felony. He might have been going to, or coming from, a place where he had or would accept a wager. He might have been going to a place to pay over, or receive, money to or from the banker or pickup man in a lower or higher echelon of this vicious hierarchy. But at the moment he was not taking or receiving, collecting or paying wagers. And if the act of driving from one place to the other was to "be engaged in or carry on [the] trade or business * * *," 26 U.S.C.A. § 3271; Lewis v. United States, supra, this was not evident or discernible from what could then be seen or known. Moring v. United States, 5 Cir., 40 F.2d 267; Emite v. United States, 5 Cir., 15 F.2d 623.

Nothing discernible to the senses taught reasonably that crime was then being done until the Agent saw, and demanded, the lottery booklet. But this was too late, for the strong arm of the law had peremptorily stopped this traveler and placed him under evident, immediate command of Government officers. Clay was not only permitted to submit to this demonstrated show of force, but maintenance of law and order, avoidance of outright physical challenge of the authority of a policeman, a decent respect for the settlement of such controversies by orderly judicial processes, all justified Clay's acquiescence in their commands and requests, United States v. Di Re, 332 U.S. 581, 594, 68 S. Ct. 222, 92 L. Ed. 210, 220; United States v. Rembert, D.C.S.D. Tex., 284 F. 996. A citizen was forceably run down and driven off the highway. If officers have the right to interfere with that essential pursuit of a nation of automobilists, it must be based on what is known or reasonably believed before the commandeering starts. To allow justification to rest on discovery after intrusion would permit "the Government * * * to justify the arrest by the search and at the same time to justify the search by the arrest," Johnson v. United States, 333 U.S. 10, 16, 68 S. Ct. 367, 370, 92 L. Ed. 436, 442. United States v. Frisch, 5 Cir., 140 F.2d 660, 662.

So, whether, as claimed by the Agents, the little booklet came to light as Clay was apparently complying with a mere request to disgorge his personal effects or, as claimed by him, it was done by peremptory command, if it was unlawful to stop him, the "conclusion is inescapable that the same unwarranted and unlawful force and compulsion, which attended and vitiated the stopping of the automobile * * *, attended and vitiated * * *," Ray v. United States, 5 Cir., 84 F.2d 654, 656, the production of the lottery booklet, the arrest and seizure of the other papers; Ward v. United States, 5 Cir., 96 F.2d 189.

Was the knowledge of prior events⁷  sufficient to make an apparently innocuous use of a free highway, Emite v. United States, supra, a telltale of a past or current crime? The inquiry eliminates the question of misdemeanor since, for the misdemeanor to have been committed in the presence of the officer, it is necessary that "the officer has evidence by his senses sufficient to induce a belief in him * * *," United States v. Rembert, supra [284 F. 1006]; McBride v. United States, 5 Cir., 284 F. 416, certiorari denied 261 U.S. 614, 43 S. Ct. 359, 67 L. Ed. 827, and what they could see or sense was the movement of a car on a highway.

Examining it from the standpoint of a felony, there are two points: (1) did the officers actually believe that a felony had been committed, and (2) was there a reasonable probable ground for that conclusion?

The first is of extreme importance for if an officer does not in fact at the moment entertain a genuine good faith belief of this fact (or legal conclusion), then the action taken is itself unlawful because lacking in the indispensable ingredient which excused the issuance of a warrant by a magistrate. Johnson v. United States, supra; United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59. All that protects the citizen from unwarranted intrusion is the expectation that an officer, zealous and energetic as he may be, will nonetheless feel restrained by law and act only where his belief is genuine and in good faith. If he may act without it, liberty is exposed to the peril of a police state in which high-handed acts of the policemen consciously undertaken in indifference to law, may yet turn out to be justified by the leisurely post-event inquiry and investigation made, not by the officer, but by Government lawyers defending his acts.

If that is so, then all of the acts of these officers indicated that they did not entertain a belief that a felony had been committed. First, nothing they saw that day, gave them the right to draw an inference not held the day before. Despite the long and careful surveillance, the plan for the trap of January 28 was evidently thought to be essential to them in the making of a successful case. Running Clay off the highway, peremptorily ordering him about, subjecting his automobile to a "voluntary" search was in no way precipitated because of flight, hot pursuit, or the likely loss of evidence. Indeed, if the knowledge of prior events justified inferences of likely violation of the Wagering Tax Act, the pattern of Clay's actions demonstrated that near 2:00 o'clock each day, he would make this trip toward Hester's store and shortly return to Macon. Nothing about Clay's conduct on January 28 or evidence gleaned from other sources, confidential or otherwise, afforded any basis for believing that this was the last and only chance to catch him. The trap was, therefore, presumably set to obtain⁸  evidence, the absence of which made their case and belief incomplete. Nothing new having come from the event of January 28 except the fruits of the forceable search, the failure to apprehend this well-known, dissolute, small-time gambler at his known residences undermines any possible claim that at that time they concluded that he had committed a felony. And this was corroborated beyond all doubt by the contemporaneous Complaint filed before the Commissioner (see note 6, supra). At most, it charged only a misdemeanor since an allegation that the accused failed to register and failed to purchase an occupational tax stamp is completely lacking in the essential allegation of the commission of affirmative acts, as distinguished from a mere negative omission, in the establishment of a scheme having as its purposeful objective the deliberate and intentional evasion of the taxing act, Spies v. United States, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418; Clay v. United States, supra; Contreras v. United States, supra; Mosely v. United States, supra; cf. Reynolds v. United States, supra.

And if it is assumed that the officers genuinely entertained a belief of probable cause, these same factors make these circumstances insufficient to justify a belief that a felony, not a previous misdemeanor, had taken place.

Of course, we are dealing here not with the sufficiency of evidence to sustain a felony conviction, or problems of criminal pleading, cf. Reynolds v. United States, supra; Clay v. United States, supra; Contreras v. United States, supra; Mosely v. United States, supra, or that which would permit a magistrate to determine whether probable cause existed in advance for warrant of arrest or to search. We are dealing with that situation in which the person claiming the right to draw the inference is the law enforcing officer whose zeal unfits him as a safe, impartial arbiter.⁹ 

As our decisions indicate, drawing the line between § 2707(b) and 2707(c) is difficult at best. To change the very act which is a misdemeanor into a felony requires a charge and proof of facts which "`lifts the offense to the degree of felony.' Spies v. United States * * *," and "* * * some affirmative act on the part of the defendant showing an attempt to evade the imposition of the tax * * *," and conduct, "* * * the likely effect of which would be to mislead or conceal * * *," Clay v. United States, supra [218 F.2d 485, 486]. And since, "The addition of mere legal conclusions, unaided by essential allegations of fact to support [this inference] will not supply this ingredient," Clay v. United States, supra, then the mere assertion¹⁰  now by the seizing officers of the legal conclusion that the circumstances known to them (note 7, supra) amounted to an attempt to evade is insufficient. To justify arrest for a felony, the officer must have grounds for believing the existence of facts of "* * * the knowledge and intent required as elements of the felony under the statute," United States v. Di Re, 332 U.S. 581, 592, 68 S. Ct. 222, 227, 92 L. Ed. 210, 219.

Finally, while the ease and practicability of obtaining the warrant of arrest or to search, Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663, is no longer an invariable rule of thumb, United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653, availability of the safeguards afforded by an impartial, judicial magistrate is a factor bearing on reasonable, probable cause. That the subject of the search is an automobile (or an occupant) does not let down the bars altogether, Shurman v. United States, 5 Cir., 219 F.2d 282, certiorari denied 349 U.S. 921, 75 S. Ct. 661, 99 L. Ed. 1253; Rent v. United States, 5 Cir., 209 F.2d 893, especially where the automobile is not the present means of flight, of likely destruction of evidence, or where the transportation¹¹  itself is not a crime. Paradoxically, all of the information now claimed to have justified the conclusion that a crime had been committed demonstrated that Clay's actions followed an almost fixed, habitual pattern of time, place and movement. In that, the use of the automobile was purely incidental. And, viewed from the vantage of knowledge held either January 27 or the forenoon of January 28, there was nothing to indicate that procuring warrants of arrest or search would thwart, or impede the efficient enforcement of law, or intrude upon the "* * * judgment of the officers as to when to close the trap * * *," United States v. Rabinowitz, 339 U.S. 56, 65, 70 S. Ct. 430, 435, 94 L. Ed. 653, 660. Apparently the officers thought the time to close in was the afternoon of January 28. In planning the catch, they were confident that he would be at his usual spots. And, of course, he was. If the officers thought that it would be best to apprehend him on the highway to, rather than from, Hester's store, or on the road instead of at Hester's store or his Macon house or place of business, resort to a Commissioner would have required no alteration in their plan of attack. Compliance with and enforcement of laws intended to secure basic freedoms to the citizen is as much the duty of the officer, Miller v. United States, 5 Cir., 230 F.2d 486, as is the successful making and prosecution of cases under those Federal statutes committed to his agency.

Reversed.