of these premises had been received, the agents had made no effort to obtain a warrant for making a search. They had abundant opportunity so to do and to proceed in an orderly way even after the odor had emphasized their suspicions; there was no probability of material change in the situation during the time necessary to secure such warrant. Moreover, a short period of watching would have prevented any such possibility.
'Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guaranties * * * against unreasonable search. This record does not make it necessary for us to discuss the rule in respect of searches in connection with an arrest. No offender was in the garage; the action of the agents had no immediate connection with an arrest. The purpose was to secure evidence to support some future arrest.' 286 U.S. 1, 6, 52 S. Ct. 466, 467, 76 L. Ed. 951.
To the above authority petitioners have added In re Milburne, 2 Cir., 1935, 77 F.2d 310, and United States v. Edelson, 2 Cir., 1936, 83 F.2d 404, for the proposition that where the government agents have ample opportunity to procure a search warrant they must do so. These cases relied upon the Taylor case, supra.
In this Circuit in the case of Pong Ying v. United States, 3 Cir., 66 F.2d 67, the court stated that the Supreme Court has not varied the law of the right to search without a warrant when a crime is being committed in the presence of government officers. Therein, the government had information that opium was being smoked at the premises in question, and narcotic agents proceeded to the place where they smelled fumes from burning opium, heard voices inside, and gained admission by breaking the door. They searched the premises without a warrant, and obtained evidence against the defendant. On motion to suppress the evidence, the court observed that there was no constitutional privilege, and that the narcotic officers would have been derelict in their duty had they not acted promptly and effectively to enter and search the apartment. In Strauss v. United States, 3 Cir., 1933, 66 F.2d 786, the court stated that the officers had reasonable grounds for believing the distillery was then being operated, and it was their duty to enter, and that the lower court was right in refusing to suppress the proofs of lawbreaking found therein.
In the case of United States v. Feldman, 3 Cir., 1939, 104 F.2d 255, the court quoted with approval the syllabus in Rocchia v. United States, 9 Cir., 78 F.2d 966, as follows:
'Officers who detected strong odor of fermenting mash and distillation, and who heard still in operation before entering building, had reasonable cause for believing that crime was being committed in their presence and could enter building and arrest defendant without first obtaining warrant, and as incident thereto could search premises and seize property used in commission of crime.' 104 F.2d 255, 257.
Cases in this Circuit bearing on this problem were reviewed in United States v. Esposito, D.C.E.D. Pa., 1942, 45 F.Supp. 39, wherein government agents who made the search and seizure complained of had had the garage under observation from July 30 to November 13, 1941, the date of the arrest. The court stated:
'If the facts observed by the government agents were such as to justify a reasonably prudent person in believing that the law had been or was being violated in the premises afterward searched, then there was probable cause for the search and seizure, and the petitions should be denied -- and vice versa.' 45 F.Supp. 39, 40.
The government agents herein were not pressed for time but we do not think that their failure to procure a search warrant during this period requires the suppression of the evidence they found. They were drawn to the scene of the alleged crime by one of their own number allegedly working with the suspects. This was good policemanship and efficient crime detection. They were obviously waiting for the proper moment to strike. Before their entry they smelled the distinctive odors, saw the still, and heard a motor running. They apprehended the defendants involved and placed them under arrest. The test of reasonableness that must be applied in all such cases results in the disclosure of no fracture of the defendants' constitutional privileges and the motion to suppress will be denied.
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