United States v. Dossi

• Decision Date: 10 February 1926
• Citation: 12 F.2d 956
• Parties: UNITED STATES v. DOSSI.
• Court: U.S. District Court — Western District of New York

12 F.2d 956 (1926)

UNITED STATES v. DOSSI.

District Court, W. D. New York.

February 10, 1926.

Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (John S. McGovern, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for the United States.

Samuel M. Fleischman, of Buffalo, N. Y., for defendant.

HAZEL, District Judge.

By title 2, § 25 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½m) search warrants to search private dwellings, occupied as such, may only issue in case the dwelling is used for the unlawful sale of intoxicating liquor, or any part thereof used for some business purpose, such as a store, shop, saloon, restaurant, hotel, or boarding house, and by section 33 (section 10138½t) it is expressly declared that the possession of liquor without a permit after February, 1920, shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, or otherwise disposed of in violation of the provisions of this title. But in the same section it is provided that it shall not be unlawful to possess liquor in one's private dwelling while the same is occupied and used as such, if the liquors are for the consumption of the owner, his family, and bona fide guests, "and the burden of proof is upon the possessor, in any action concerning the same, to prove that such liquor was lawfully acquired, possessed and used."

In this case the police officers entered the private home of defendant without a search warrant, or any evidence that an offense had been committed in their presence. The liquor in his possession was not observed by them, nor did they sense any odor of unlawful manufacture. In fact, no reason was apparent for suspecting that he kept liquors at his home, and the sole reason for the forcible entry was to make a search for the purpose of securing evidence upon which to accuse him. Can such a search and seizure be sustained under the doctrine of Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159, wherein the Supreme Court held that an entry into a private office without a search warrant, and abstracting from a safe private papers, would not estop the government from using such papers as evidence upon the trial of the person from whose custody they were taken?

An examination of the affidavit in support of this motion impels a negative answer. It appears that one Randall was instructed by the mayor of Olean to raid the private dwelling of defenda...