Schroeder v. United States

14 F.2d 500, 1926 U.S. App. LEXIS 2070

Opinions

RUDKIN, Circuit Judge.

The judgment in this ease cannot be sustained without overruling Temperani v. United States (C. C. A.) 299 F. 365, and Bell v. United States (C. C. A.) 9 F.(2d) 820. Adhering as we do to the views there expressed, the judgment in this case must be reversed.

To uphold an entry and search such as was here made is to entirely ignore “a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 U. S. 132, 153, 45 S. Ct. 280, 285 (69 L. Ed. 543, 39 A. L. R. 790).

This judgment cannot be upheld, if in law there is a recognized difference between the right to search a moving vehicle, such as an automobile, and the right to search a permanent structure, such as a dwelling house or the basement underneath.

Reversed and remanded.