United States v. Buel Lee Shepherd

714 F.2d 316, 1983 U.S. App. LEXIS 25181
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 4, 1983
Docket81-5074
StatusPublished
Cited by39 cases

This text of 714 F.2d 316 (United States v. Buel Lee Shepherd) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Buel Lee Shepherd, 714 F.2d 316, 1983 U.S. App. LEXIS 25181 (4th Cir. 1983).

Opinions

ERVIN, Circuit Judge: [317]*317per trip Shepherd carried.

[316]*316Buel Lee Shepherd was convicted of possessing thirty-eight gallons of moonshine whiskey on which the tax had not been paid, and of removing it from its place of manufacture and concealing it, in violation of 26 U.S.C. §§ 5205(a)(1), 5604(a)(1) and 5601(a)(12). On appeal, Shepherd contends [317]*317that his arrest and the warrantless search of his automobile were unlawful. Therefore, he urges, the fruits of the illegal arrest and search were improperly admitted at his trial. We hold that Shepherd’s arrest was supported by probable cause, and that the warrantless search was justified under the automobile exception to the fourth amendment.

I.

Late in the fall of 1980, Lester Russell, an investigator for the North Carolina liquor control board in Winston-Salem, received information from a reliable confidential informant that the defendant was engaged in an illegal whiskey enterprise at his residence in North Wilkesboro, North Carolina, located fifty miles away. According to Agent Russell, on approximately thirty earlier occasions the informant had provided information that had led to over twenty-five convictions. After receiving the informant’s report, Russell, together with North Carolina Alcohol and Beverage Control (ABC) Agent Robert Cobb and Agent Aubrey Huffman from the federal Bureau of Alcohol, Tobacco and Firearms, set up surveillance of the defendant’s residence on the morning of December 3, 1980. Russell remained in the police vehicle some distance away while Cobb and Huffman positioned themselves in woods approximately one hundred yards to the rear of Shepherd’s residence.

At about 8:15 a.m., Huffman observed Shepherd leave his residence and walk to a 1971 Mercury Cougar parked approximately seventy-five yards to the rear of the house. After opening the trunk of the automobile, Shepherd made three trips into a wooded area near the vehicle and returned carrying translucent one gallon white plastic jugs which he placed in the open trunk.1 Shepherd then closed the trunk compartment and walked to the driver’s side of the automobile. At this point Officer Russell drove up. Agent Huffman, leaving his observation point in the woods, walked up to Shepherd and asked him for the key to the trunk. Shepherd took his car keys from his pocket and handed them to Huffman. Huffman then opened the trunk. The trunk of the ear contained thirty-eight capped one gallon plastic jugs. The jugs were later opened without a warrant. Each jug contained moonshine. No tax had been paid and no tax stamps had been affixed to the jugs.

II.

We find no merit in Shepherd’s contention that the agents lacked probable cause to arrest him. The agents had been supplied a tip from a highly reliable informant whose aid in earlier cases netted over twenty-five convictions on approximately thirty tips. Upon taking up surveillance at the location advised by the informant, the agents witnessed behavior consistent with the tip and with an illegal moonshine operation. The combination of a reliable tip and first-hand corroborative observation of suspicious activity provided ample cause to suspect Shepherd was engaged in criminal activity justifying arrest. See United States v. Branch, 565 F.2d 274 (4th Cir.1977) (arrest supported by probable cause when police, acting on informant’s tip that one Branch, carrying drugs, would alight from certain air flight, arrested man matching informant’s description getting into car registered in Branch’s name).

III.

We turn now to the more difficult issue of whether the warrantless search of Shepherd’s automobile violated the fourth amendment to the United States Constitution. The fourth amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[318]*318Although by its terms the amendment does not equate unreasonable searches with warrantless ones, the Supreme Court has long held this view. In Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), for example, the Court wrote that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the fourth amendment — subject only to a few specifically established and well-delineated exceptions.”

The search in this case was, of course, carried out without a warrant. The specific exception to the warrant requirement which the government urges upon us is the so-called “automobile exception,” first announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).2 In Carroll, federal prohibition agents and a state policeman observed a car traveling on the road between Detroit and Grand Rapids, Michigan. Several factors led the agents to believe the vehicle was involved in bootlegging: illicit liquor traffic was prevalent in the area; the car’s occupants had been observed before in the vicinity; and the agents recognized the occupants as persons having previously attempted an illegal liquor sale. The vehicle was stopped, and the agents proceeded to search the interior, uncovering a cache of illegal liquor hidden in the upholstery. The occupants were then placed under arrest. At their trial they maintained that the warrantless search of their car violated the fourth amendment. On appeal, the Supreme Court rejected this claim, reasoning that the suspects and evidence might have left the jurisdiction of the authorities by the time a warrant could have been obtained. The Court made clear that it was the particular exigence of the situation that justified a warrantless search, adding that “[i]n cases where the securing of a warrant is reasonably practicable, it must be used.... ” Id. at 156, 45 S.Ct. at 286.

The automobile exception took on new aspects in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).3 There, the suspects in an armed robbery were stopped on a public street in a station wagon one hour after the crime occurred. The occupants of the car were arrested, and the station wagon was driven to the police station where an immediate search uncovered two revolvers and other items which were admitted into evidence against one defendant in his trial for armed robbery. Despite the fact that, unlike the situation in Carroll, there was no danger that the suspect vehicle would leave the jurisdiction, since its owner was in jail, the Supreme Court validated the warrantless search:

Neither Carroll ...

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Bluebook (online)
714 F.2d 316, 1983 U.S. App. LEXIS 25181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-buel-lee-shepherd-ca4-1983.