United States v. Physic

Second Circuit

United States v. Physic

175 F.2d 338, 38 A.F.T.R. (P-H) 73, 1949 U.S. App. LEXIS 4350

CourtCourt of Appeals for the Second Circuit

DecidedJune 20, 1949

Docket228, Docket 21186

StatusPublished

Cited by27 cases

This text of 175 F.2d 338 (United States v. Physic) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Physic, 175 F.2d 338, 38 A.F.T.R. (P-H) 73, 1949 U.S. App. LEXIS 4350 (2d Cir. 1949).

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Opinion

FRANK, Circuit Judge.

1. Physic’s acquittal in the criminal action is not an adjudication on which he can rely here; Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 82 L.Ed. 917. Nor is the ruling on the motion to suppress made in that criminal action an adjudication adverse to him on which the government can rely here; for that ruling, being interlocutory, was not appealable until final judgment, and, after Physic’s acquittal, he could not appeal.

2. It has been assumed that, under Carroll v. United States, 267 U.S. 132, 160, 161, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, and Husty v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407 it was settled that such a search of an automobile, without a warrant, as occurred here, was valid even if justified solely by hearsay evidence. 1 Remarks made in United States v. Di Re, 332 U.S. 581, 584-586, 68 S.Ct. 222, 223, 92 L.Ed. 210, without deciding the question,, throw some doubt on the view that “an automobile is more vulnerable to search without warrant than is other property” when, as here, no statute (such as the National Prohibition Act, 27 U.S.C.A. § 1 et seq., expressly authorizes such a search. 2 The Court, however, left the question open. Accordingly, we shall, although hesitantly,, proceed on the assumption that the search here would have been valid if based on sufficient hearsay. But, especially in the light of the Di Re remarks, we think that the government must prove at least what the hearsay was, and that it must be such as would have led a reasonable man to believe that the car carried the contraband. 3 Since here there was no such proof, the motion to suppress should have been granted. Accordingly, the judgment cannot stand since, except for the fruit of the search, the record is lacking in any evidence to support the forfeiture.

Reversed and remanded.

1

See also Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151.

2

See also Trupiano v. United States, 334 U.S. 699, 704-705, 68 S.Ct. 1229, 92 L.Ed. 1663.

3

It will suffice to prove that the officer’s superior, who directed the officer to make the search, has such hearsay information.

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FRANK, Circuit Judge.

1. Physic’s acquittal in the criminal action is not an adjudication on which he can rely here; Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 82 L.Ed. 917. Nor is the ruling on the motion to suppress made in that criminal action an adjudication adverse to him on which the government can rely here; for that ruling, being interlocutory, was not appealable until final judgment, and, after Physic’s acquittal, he could not appeal.

2. It has been assumed that, under Carroll v. United States, 267 U.S. 132, 160, 161, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, and Husty v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407 it was settled that such a search of an automobile, without a warrant, as occurred here, was valid even if justified solely by hearsay evidence. 1 Remarks made in United States v. Di Re, 332 U.S. 581, 584-586, 68 S.Ct. 222, 223, 92 L.Ed. 210, without deciding the question,, throw some doubt on the view that “an automobile is more vulnerable to search without warrant than is other property” when, as here, no statute (such as the National Prohibition Act, 27 U.S.C.A. § 1 et seq., expressly authorizes such a search. 2 The Court, however, left the question open. Accordingly, we shall, although hesitantly,, proceed on the assumption that the search here would have been valid if based on sufficient hearsay. But, especially in the light of the Di Re remarks, we think that the government must prove at least what the hearsay was, and that it must be such as would have led a reasonable man to believe that the car carried the contraband. 3 Since here there was no such proof, the motion to suppress should have been granted. Accordingly, the judgment cannot stand since, except for the fruit of the search, the record is lacking in any evidence to support the forfeiture.

Reversed and remanded.

1

See also Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151.

2

See also Trupiano v. United States, 334 U.S. 699, 704-705, 68 S.Ct. 1229, 92 L.Ed. 1663.

3

It will suffice to prove that the officer’s superior, who directed the officer to make the search, has such hearsay information.

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175 F.2d 338, 38 A.F.T.R. (P-H) 73, 1949 U.S. App. LEXIS 4350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-physic-ca2-1949.

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