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    United States v. J. Paul Joines and John Robert Joines. Appeal of John Robert Joines, 258 F.2d 471, 3rd Cir. (1958)

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    1) The defendant appealed his conviction for an unregistered still, mash, and nontaxpaid liquor that was discovered during a search of his home by revenue officers with an arrest warrant. 2) The Supreme Court vacated the appellate court's initial affirmation of the conviction and remanded for consideration in light of a new decision. 3) On reconsideration, the appellate court again affirmed the conviction, finding that the search was a lawful search incident to arrest, as the officers entered the home in good faith to execute the arrest warrant and discovered the illegal items in plain view during their search for the defendant.

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    United States v. J. Paul Joines and John Robert Joines. Appeal of John Robert Joines, 258 F.2d 471, 3rd Cir. (1958)

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    1) The defendant appealed his conviction for an unregistered still, mash, and nontaxpaid liquor that was discovered during a search of his home by revenue officers with an arrest warrant. 2) The Supreme Court vacated the appellate court's initial affirmation of the conviction and remanded for consideration in light of a new decision. 3) On reconsideration, the appellate court again affirmed the conviction, finding that the search was a lawful search incident to arrest, as the officers entered the home in good faith to execute the arrest warrant and discovered the illegal items in plain view during their search for the defendant.

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    Filed: 1958-11-10 Precedential Status: Precedential Citations: 258 F.2d 471 Docket: 12186_1

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    1) The defendant appealed his conviction for an unregistered still, mash, and nontaxpaid liquor that was discovered during a search of his home by revenue officers with an arrest warrant. 2) The Supreme Court vacated the appellate court's initial affirmation of the conviction and remanded for consideration in light of a new decision. 3) On reconsideration, the appellate court again affirmed the conviction, finding that the search was a lawful search incident to arrest, as the officers entered the home in good faith to execute the arrest warrant and discovered the illegal items in plain view during their search for the defendant.

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    87 views3 pages

    United States v. J. Paul Joines and John Robert Joines. Appeal of John Robert Joines, 258 F.2d 471, 3rd Cir. (1958)

    Uploaded by

    Scribd Government Docs
    1) The defendant appealed his conviction for an unregistered still, mash, and nontaxpaid liquor that was discovered during a search of his home by revenue officers with an arrest warrant. 2) The Supreme Court vacated the appellate court's initial affirmation of the conviction and remanded for consideration in light of a new decision. 3) On reconsideration, the appellate court again affirmed the conviction, finding that the search was a lawful search incident to arrest, as the officers entered the home in good faith to execute the arrest warrant and discovered the illegal items in plain view during their search for the defendant.

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    of 3

    258 F.

    2d 471

    UNITED STATES of America


    v.
    J. Paul JOINES and John Robert Joines.
    Appeal of John Robert JOINES.
    No. 12186.

    United States Court of Appeals Third Circuit.


    Reargued August 4, 1958.
    Decided August 14, 1958.
    Certiorari Denied November 10, 1958.

    See 79 S.Ct. 118.


    Judson E. Ruch, York, Pa. (Luria, Still & Ruch, York, Pa., and R. Palmer
    Ingram, Baltimore, Md., on the brief), for defendant-appellant.
    William D. Morgan, Asst. U. S. Atty., Scranton, Pa., for appellee.
    Before MARIS, KALODNER and STALEY, Circuit Judges.
    MARIS, Circuit Judge.

    This is an appeal by the defendant from a judgment of conviction in a criminal


    case. The question raised by the defendant is whether the court erred in
    admitting evidence of an unregistered still, mash and nontaxpaid liquor
    discovered and seized in the defendant's dwelling house by internal revenue
    officers when, armed with a warrant of arrest, they searched the house in an
    unsuccessful effort to find and arrest the defendant. The appeal was argued at
    the last term and this court concluded, for the reasons given in our opinion then
    filed, that the seizure was lawful under the circumstances, that the evidence
    was properly received and that the judgment should be affirmed. 3 Cir., 246
    F.2d 278.

    Thereafter the Supreme Court granted a writ of certiorari, vacated our judgment
    of affirmance and remanded the case to this court for further consideration in
    the light of Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 1256, 2

    L.Ed.2d 1514, decided by the Supreme Court on the same day. 357 U.S. 573,
    78 S.Ct. 1380, 2 L.Ed.2d 1547.
    3

    We have given the most careful consideration to the opinion of the Supreme
    Court in the Jones case but are unable to discover that it controls the case
    before us. In its opinion in that case the Supreme Court said that the search and
    seizure there involved "were considered to have been justified because the
    officers had probable cause to believe that petitioner's house contained
    contraband materials which were being utilized in the commission of a crime,
    and not because the search and seizure were incident to petitioner's arrest."
    Viewing the case in this light the court reversed the judgment of conviction
    based on the seized evidence, pointing out the settled doctrine that probable
    cause for belief that certain articles subject to seizure are in a dwelling cannot
    of itself justify a search without a warrant.

    In the case before us, however, the facts as found by the trial judge, with which
    finding we agree, are that the officers searched the defendant's dwelling house
    in a bona fide attempt to find and arrest him and that they did not know of, or
    even suspect, the existence of the still, mash and liquor in the dwelling house
    until they came upon it in the course of their search for the defendant. This,
    then, is the case which the Supreme Court took pains to point out that the Jones
    case was not, and it falls within the exception to the rule requiring a search
    warrant which the court in that case expressly pointed out, namely, a "search
    incident to a valid arrest."

    The fact that the defendant could not be found in his dwelling house did not
    render the presence of the officers there unlawful since they entered armed with
    a warrant which they were endeavoring in good faith to execute. And being
    lawfully in the house they were entitled to seize the illicit articles which met
    their eyes. Accordingly, the fact that no arrest actually then took place is
    immaterial. Indeed, if that were the decisive factor there would have been no
    purpose in remanding the case to us for further consideration. On the contrary,
    the Supreme Court, had it thought this undeniable fact controlling, would
    certainly have reversed the defendant's conviction.

    Moreover, the failure of the officers to execute the warrant for 21 days even
    though they may have had opportunities during that time to do so did not render
    the warrant invalid, as the defendant urges. For ordinarily there is no legal
    requirement that a warrant of arrest must be executed immediately or at the first
    opportunity. Kent v. Miles, 1897, 69 Vt. 379, 37 A. 1115; State v. Nadeau,
    1903, 97 Me. 275, 54 A. 725; State v. Kopelow, 1927, 126 Me. 384, 138 A.
    625. While its execution should not be unreasonably delayed there may be

    perfectly valid reasons why further investigation should be made before the
    drastic step is taken of arresting a citizen on a criminal charge. Certainly there
    is no constitutional right to be arrested promptly or otherwise.
    7

    It is true that the warrant directed the officer executing it to bring the body of
    the defendant "forthwith" before the commissioner. In this respect it was drawn
    in compliance with Rule 5(a) of the Federal Rules of Criminal Procedure, 18
    U.S.C.A., which requires that an arrested person be taken before the nearest
    available commissioner "without unnecessary delay". This refers, however, to
    delay between arrest and production before a commissioner. It has nothing
    whatever to do with the time when the arrest is to be made.

    We accordingly adhere to our previous conclusion that the judgment of


    conviction should be affirmed. It will be so ordered.

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