4 F.2d 848 (S.D.Cal. ), 5943, United States v. Gaitan

Docket Nº:5943-B, 6668-B.
Citation:4 F.2d 848
Party Name:UNITED STATES v. GAITAN et al. SAME v. COLLURA et al.
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 848

4 F.2d 848 (S.D.Cal. )

UNITED STATES

v.

GAITAN et al.

SAME

v.

COLLURA et al.

Nos. 5943-B, 6668-B.

United States District Court, S.D. California, Southern Division.

These cases present similar questions, and the frequency with which the matters urged herein are being brought to the attention of the court seems to justify the stating of the conclusions of the court at some length. Defendants

Page 849

in both cases are charged with the violation of the National Prohibition Law (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.). In the case first mentioned it is alleged, in appropriate fashion, in various counts, that on or about the 9th day of July, 1923, the defendants, at Los Angeles, manufactured about 23 gallons of intoxicating liquor; that on a or about the same day they had in their possession certain property and apparatus designed for the manufacture of intoxicating liquor, consisting of one 15-gallon still, complete, and 7 barrels of mash; and that at a designated building and place at Los Angeles, to wit, 811 Lookout Drive, they maintained a common nuisance, when intoxicating liquors were manufactured, kept, sold, etc. In the Collura case it is alleged that the defendants, on or about the 10th day of June, 1924, at Lennox, in Los Angeles county, manufactured 10 gallons of intoxicating liquor; that on about the same date they had in their possession a still and 1,000 gallons of fermenting corn mash; that on or about the same date they had in their possession about 18 gallons of intoxicating liquor; and that on or about the same date, at 4626 Garfield avenue, Lennox, they maintained a common nuisance where intoxicating liquor containing alcohol in excess of one-half of 1 per cent. by volume was manufactured, etc.

In each case a motion has been made by the defendants, upon affidavits sworn to by them, for the quashing of the search warrant issued in the case and the return of certain property illegally seized, being the property referred to in the various counts of the respective informations, and that the United States attorney be enjoined and restrained from using or attempting to use said property as evidence at the trial of the case to which the same referred. In each case it is asserted that the premises entered 'under cover of a pretended search warrant' were owned, used, and occupied by the respective defendants as their dwelling, and that the search warrant was invalid because issued upon an insufficient showing and in the absence of proper cause; that the same was vague, inconsistent, insufficient, and uncertain, for the reason that the property to be taken thereunder was not particularly identified, named, and described; that the search warrant is void for the reason that the said property seized is not the same as described in the search warrant; that the premises were subjected to an unreasonable search and seizure, in violation of the Fourth and Fifth Amendments to the Constitution of the United States; and that the search warrant was void and illegal for the reason that the agent executing the same did not deliver properly executed copies of said search warrant to the defendants, 'in that he did not verify on the back of said search warrant, as required by law, the inventory of the property seized.'

In the Gaitan case the affidavit upon which the search warrant was issued was in the usual form as to personal knowledge on the part of affiant, and asked for a warrant for the search of 'the following described premises and place, to wit, 811 Lookout Drive, city of Los Angeles, county of Los Angeles, state of California, together with all rooms, closets, lockers, attics, cellars, sheds, outbuildings, and all parts of said premises'; that affiant, on or about the 9th day of July, 1923, 'made investigation of the above-described premises and detected the strong odor of fermenting mash, after reports had been received in the office that liquor was being made at this house.' In pursuance of that affidavit, sworn to on the 9th day of July, 1923, the United States commissioner issued his warrant for the entering and search of 'the premises and place mentioned, referred to, and described in said affidavit, and every part thereof, * * * and to thoroughly search the same for the following described property, to wit'-- then specifying many kinds of intoxicating liquors and various apparatus, including stills, usually employed in the manufacture of illicit liquor.

In the Collura case a search warrant of similar tenor was issued for the search of the premises referred to therein, based upon an affidavit subscribed and sworn to on the 10th day of June, 1924, by a general prohibition agent, which averred that affiant 'has reason to believe and does believe that within a certain house, store building, or other place in the Southern district of California, to wit, premises at 4626 Garfield, Inglewood Acres, one mile east of the city of Lennox, county of Los Angeles, state of California, being the premises of name of occupant unknown to affiant, there is located certain property, to wit, intoxicating liquors and articles designed and used for the manufacture of same. * * * The facts, circumstances, and conditions of which affiant has knowledge and as ascertained by affiant are as follows, to wit: On visit to these premises on June 9, 1924, and on dates...

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