(concurring).
Agreeing, as I do, with the foregoing, I deem it proper to add that, assuming the defendants could raise the question of the legality of the search, I think the court committed no error in holding it was legally justified. The proofs of law violation by Mello and his associates were clear. • On entry into the premises a 10,000 gallon still was being operated by the defendants. They all made admission of their guilt. The evidence was:
“The men all had on working clothes, all stained with mash, and they were stripped from their waist up. It was terribly hot in this place and they just wore a pair of trouers. The clothes were dirty with soot and ■mash and we turned all the steam off, pulled the fire in the boilers and stopped the steam from going through the columns, keeping the men under guard in the meantime. And we questioned the men as to the length of the time they worked there and they all admitted that they worked there and operated the still, but they would not tell us who hired them or paid them. They said they received amounts from $39 to $49 a week in cash by some man meeting them on the corner and paying them, but they did not know who owned the still or anything. * * *
“There was in process of fermentation two 20,000 gallon vats full of fermenting mash. Another 20,000 gallon vat about one-quarter; approximately from 45,000 to 50,000 gallons of molasses mash in the process of fermentation. Another tank of about 10,000 gallon capacity was probably from one-fourth to one-half full of molasses, that is ordinary black strap cane molasses which was used in the mash. In the floor was a tank, and embedded in the floor was another which probably would hold 5,000 gallons, practically full. The plant was powered by two upright boilers of about 75 horsepower, each under high steam pressure at the time we entered and the steam was going full capacity when we entered. The hose line led from this garage, where I mentioned that we forced the door in, to a separate room. There were tracks where the truck had been backed in there and a hose line laid from there to the molasses vat. Before the men were taken to the police station they had all changed their clothes. They had their clothes hanging on hooks on the wooden' partition that separated the still room from this garage.”
And the convictions were proper -unless the court erred in refusing to suppress the evidence on the ground of the illegality of the entrance of the officers without a search warrant.
The facts in the ease are these: The prohibition agent testified that on approaching the brewery he “could distinctly hear the machinery running very plainly and the hissing of steam from the boilers, but I could not hear the talking because of that noise. * * * I did not hear anybody, but I heard the machinery running and the hissing of steam, and I took it for granted someone was there attending to the machinery.”
Another agent testified: “While approaching this building I detected a very distinct and strong odor of fermenting molasses mash, and during my investigation with Investigator Chalfant we circumnavigated this building and approached it from every *137possible angle, and in a public alleyway leading off of Main Avenue, we approached what was a rear door to these premises and there I heard the distinct noise of machinery running and the hissing of steam, and again obtained a distinct odor of fermenting mash combined with alcohol — that is a similar odor, As a result of this, under instructions from Investigator Chalfant, after a wait for Newark men to come to reinforce us, I forced the door on the McLean Street side of the building.”
It is thus, quite evident that we have before us a case not of dead or bottled liquor but of grain or mash being cooked and spreading abroad such fumes as led to a just suspicion that the law was being violated. The smell was of fermenting mash, and fermenting mash necessarily conveys the idea of very recent, or even present, cooking operations. It is quite evident that the odor emanating from the cooking of grain or cereals is an altogether different thing from tho dead smell of am uncooked article or of such articles cooked and standing cold. To use a homely illustration. If sauerkraut or cabbage is cooked in a kitchen, the smell permeates the whole house, while the same cabbage or sauerkraut, either before cooking or after it is cooked and cooled, standing on a kitchen table, sends no odor through the dwelling. Why is this so? The reason is obvious. When odor-producing articles are being cooked, the rising steam and hot air disseminate the smell on all sides. Cooking is an agitator of air.
With all these facts before him, was the officer to betake himself to a United States Commissioner to get a search warrant to enter premises on which he had physical proof' by his own senses that the law was being violated? The prohibition officer summed the whole thing up in his answer to the question, “Why didn’t you go get a search warrant if you knew so surely? A. 1 didn’t figure I needed a search warrant. If I had the evidence to get a search warrant, I had the evidence to seize it without.” It seems to me this sums up the situation. On the exterior of the door of the premises was the evidence of tho operations within. If this evidence was created by those who were heard moving around inside and as a result of their operations the evidence was conveyed out of the building in the shape of noise and odors, that afforded evidence of a just suspicion which they themselves had created. To throw a shield over these men who had themselves made the interior of their building a place of suspicion, and to envelop them in the panoply of constitutional protection w’hen they themselves furnished evidence on the outside of the building entered that they were breaking the law within, is a misapplication of a provision that was embodied in the Constitution to insure the privacy of a man’s person and dwelling from illegal inquiry. The acts of those within the building caused and created a just suspicion in the minds of those outside the building. See Pong Ying v. United States (C. C. A.) 66 F.(2d) 67.