270 F. 578 (S.D.N.Y. 1921), United States v. Kraus

Citation:270 F. 578
Party Name:UNITED STATES v. KRAUS et al. SAME v. JOSEPH AJELLO CO., Inc., et al. SAME v. BORNSTEIN et al.
Case Date:February 01, 1921
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 578

270 F. 578 (S.D.N.Y. 1921)

UNITED STATES

v.

KRAUS et al. SAME

v.

JOSEPH AJELLO CO., Inc., et al. SAME

v.

BORNSTEIN et al.

United States District Court, S.D. New York.

February 1, 1921

Page 579

[Copyrighted Material Omitted]

Page 580

George L. Donnellan, of New York City, for petitioners.

David V. Cahill and Robert A. Peattie, both of New York City, for the United States.

LEARNED HAND, District Judge (after stating the facts as above).

Except for the character of the documents seized, the law in cases of unlawful searches is now well settled. Weeks v. U.S., 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319; Flagg v. U.S., 233 F. 481, 147 C.C.A. 367; Veeder v. U.S., 252 F. 414, 164 C.C.A. 338; United States v. Mills (C.C.) 185 F. 318. When seized, they must be returned, with them all copies taken while the officers retained their illegal possession. Furthermore, the prosecution may not use at the trial or in its preparation any information obtained from their scrutiny. Unless, therefore, the respondents can justify, the documents must be returned. They do justify: First, on the ground of the petitioners' consent, which presents an issue of fact; and, second, on the ground that, as the petitioners were wholesale liquor dealers and had taken out basic permits, the records kept by them were subject to inspection under sections 10 and 34 of title 2 of the Volstead Act and section 3318 of the Revised Statutes, and, if to inspection, then to the enforcement of that right without process, even to the extent of seizure. Farther they insist that, because the records were not properly kept, those papers were included within their powers which should have been transcribed into the records.

It is quite true that the officers had the right to inspect the records, and therefore the right to enter the place where they were kept. I shall for argument's sake further assume that, if the records were not kept as required, they had the right to inspect such other papers on the premises as recorded transactions which should have been transcribed into the records. It does not, however, follow from these

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concessions that they had the right to break and enter, though the petitioners wrongfully refused to allow them to inspect, nor does it either follow that they had the right to seize the records and papers after an inspection.

To take up the last first, it is clear that the right to inspect did not give the right to seize, and this is enough to require a return of the papers, though not of any copies taken or of any other information obtained from their custody. Since...

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