283 F.Supp. 746 (N.D.Ga. 1968), Crim. A. 25259, United States v. Sessions

Docket Nº:Crim. A. 25259
Citation:283 F.Supp. 746
Party Name:United States v. Sessions
Case Date:January 29, 1968
Court:United States District Courts, 11th Circuit, Northern District of Georgia
 
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Page 746

283 F.Supp. 746 (N.D.Ga. 1968)

The UNITED STATES

v.

Evelyn Headrick SESSIONS.

Crim. A. No. 25259.

United States District Court, N.D. Georgia

Jan. 29, 1968

Page 747

Charles B. Lewis, Jr., Asst. U.S. Atty., Atlanta, Ga., for plaintiff.

Paul Myers, Atlanta, Ga., for defendant.

ORDER

EDENFIELD, District Judge.

Defendant, an operator of an Atlanta night club, known as 'The Nitery Club', has been indicted on one count for having added distilled spirits and other substances to liquor bottles, which altered the original contents, in violation of 26 U.S.C. § 5301(c), and also on a second count for having been in possession of liquor bottles whose contents had been so altered, in violation of the same section. She has also been indicted on a third count for having carried on the business of a retail liquor dealer

Page 748

and having wilfully failed to pay the special tax levied on such dealers in accord with 26 U.S.C. § 5121.

Defendant has made several pretrial motions, the first of which requests that the evidence of the first two counts, namely, some ten bottles of allegedly adulterated liquor, be suppressed as having been seized during an illegal search. The evidence shows that while the club was open for business at 4:00 o'clock in the afternoon on December 13, 1966, investigators of the Alcohol and Tobacco Tax Division of the Internal Revenue Service entered the premises for the purpose of inspecting and examining the records and documents required to be kept by a retail liquor dealer and to inspect the distilled spirits kept and stored on the premises. This inspection was not made under authority of any search warrant but was made solely under the authority of26 U.S.C. § 5146. 1 Defendant's attack on the search is essentially based on the alleged unconstitutionality of that section. This question was expressly considered in Peeples v. United States, 341 F.2d 60 (5th Cir., 1965). It was found there that a search under authority of the provisions of Section 5146 was not in violation of the rights guaranteed by the Fourth Amendment to the Constitution of the United States. The court finds nothing in the recent cases of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), which weakens the force of the Peeples decision. Indeed, the final paragraph of the decision in See v. City of Seattle impliedly...

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