James D. Atwell and Melvin Edmon Surrett v. United States

THORNBERRY, Circuit Judge:

This is an appeal from a conviction by jury under the second count of a two-count indictment. 1 The count charged a violation of 26 U.S.C. § 5179(a), unlawful possession of an unregistered distilling apparatus. We affirm as to appellant Surrett, but reverse as to appellant Atwell.

I

The record shows that the still in question was located approximately 250 yards from the back of a house in the open land beyond the curtilage of the house. Appellants argue that the Government should have proved that there was not an unlawful search or seizure before being allowed to…