(dissenting).
I dissent from the holding in the majority opinion that the search was an incident to an arrest which was lawfully made because of a crime committed in the presence of the officers.
To my mind, the evidence shows that the arrest was a mere pretext for making the search. The premises in question were a residence. The evidence indicates that the purpose of the prohibition agents in going to the premises was to make a' search. This is shown by the fact that the agents armed themselves with a search warrant specifying the place and the articles to> be seized. They had no warrant of arrest. They showed the search warrant to defendant, whom they found on tho premises, and then made the search. They made a return, on the search warrant of the articles seized.
Having prior knowledge that the premises constituted a residence, and having no proof of sales of liquor on the premises, the agents could not obtain a search warrant under the Prohibition Act. Accordingly, they procured a search warrant upon an affidavit of one of them, alleging that he believed that a fraud upon the revenue of the United States was being committed upon the premises by the manufacture of distilled spirits subject to payment of a tax, but upon which no tax was paid.
It is conceded in the majority opinion that the search warrant was void; but it is contended that upon arrival at the premises, tho agents obtained knowledge of facts which showed that a crime was being committed in their presence, and that therefore the arrest was legal, and also the search as incident thereto.
Assuming, but without deciding, that, notwithstanding the express provisions of section 25, title 2, of the National Prohibition Act, a search of a residence may he carried out as incident to an arrest made because of a crime committed in the presence of the officer, yet in my judgment no- such situation is presented by the facts in the ease at bar.
The facts of which the prohibition agents obtained knowledge were two*: (1) They smelled -an odor of mash coming from the house; (2) they saw a man enter the house, and in the house, who- later told them that he lived there.
As to the first, the statement by Mr. Justice McReynolds in Taylor v. United States, 280 U. S. 1, 6, 52 S. Ct. 466; 467, 76 L. Ed. 951, seems pertinent: “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.”
As to the second, there is no evidence that they knew who the man was, his name or business; or that they knew he was the owner of the house or in possession thereof; or that they knew that there was a still in the house; or, if there was, that they knew that the man had anything to do with it. So far as the knowledge of the agents went, the man whom they found in the house was not then committing a crime in their presence; and, so-far as the knowledge of! the agents went, no one had committed a crime in their presence.
This being the state of the record, I think there was no foundation shown for a legal arrest, and that the arrest made was simply a pretext for a search.
In United States v. Lefkowitz, 285 U. S. 452, 467, 52 S. Ct. 420, 424, 76 L. Ed. 877, Mr. Justice Butler said: “An arrest may not bo used as a pretext to search for evidence.”
The search under the circumstances disclosed was not, in my judgment, valid; and it is elementary that subsequent developments would not legalize a search, if it was invalid when made.
In addition to the authorities above cited, the reasoning in the following cases, in my judgment, supports tho conclusion I have reached: Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409, Henderson v. United States (C. C. A.) 12 F.(2d) 528, 51 A. L. R. 420; Raniele v. United States, 34 F.(2d) 877 (C. C. A. 8); United States v. McCunn (D. C.) 40 F.(2d) 295; United States v. 1013 Crates of Whiskey Bottles (C. C. A.) 52 F.(2d) 49.
I think the judgment should be reversed.