United States v. Gaitan

• Decision Date: 31 December 1925
• Docket Number: No. 5943-B,6668-B.,5943-B
• Citation: 4 F.2d 848
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. GAITAN et al. SAME v. COLLURA et al.

4 F.2d 848 (1925)

UNITED STATES v. GAITAN et al.

SAME v. COLLURA et al.

Nos. 5943-B, 6668-B.

District Court, S. D. California, S. D.

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Joseph C. Burke, U. S. Atty., and Russell Graham, Asst. U. S. Atty., both of Los Angeles, Cal.

Henry C. Huntington, of Los Angeles, Cal., for defendants Gaitan and Montes.

Wallace W. Davis, and Frank M. Davis, both of Los Angeles, Cal., for defendants Collura.

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

The principal contention of defendants in each case is based upon the fact, apparently uncontroverted, that the premises searched were occupied as the private dwelling of the respective defendants, and that in virtue of section 25, tit. 2, of the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 10138½m), "no search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house." For the purposes of these motions it may be assumed that the search warrants involved herein were per se invalid to the extent that, without evidence as to sales having been made, they authorized the search of private dwellings. Such conclusion or assumption, however, does not, in my judgment, require the granting of the motions made. In passing it may be said that, in my judgment, the facts set out in the affidavits might have justified the United States commissioner to issue his warrant as for a valid search of a place other than a dwelling house. Congress seemingly has determined that no valid search warrant may issue to search a dwelling house, except in virtue of evidence of a sale, or in virtue of the existence of the other matters mentioned in the clause quoted.

What is reasonable cause for the issuance of a search warrant is a matter for judicial determination, and is always to be arrived at after a fair consideration of all of the matters asserted as upon the personal knowledge of the person making the affidavit or in some such appropriate fashion. Judge Deady, in Ex parte Morrill (C. C.) 35 F. 261, 267, held that the observation of the officer, interpreted in the light of "common knowledge," might be the basis for reasonable ground to suspect the commission of a crime. In these days, with the all too widespread disposition to violate the provisions of the National Prohibition Law, made manifest by the congested condition of the calendars of our courts, I am not prepared to say that a person skilled in the subject-matter to the extent that he recognizes the unmistakable odor of fermenting mash is not justified in coming to the conclusion that such mash is being kept and retained for the purpose of distilling illicit liquor. No other use of mash nowadays has been suggested, and, read in the light of present-day activities and uses, the most probable use, viz. the production of spirituous liquor, may well be inferred. Every excuse for the possession of mash, from the intended feeding of hogs to the proposed conversion of the same into fertilizer, has been tendered in my court; but it is not an unreasonable inference, in the absence of some circumstance suggesting a contrary explanation, that its possession is for the purpose of flouting the prohibition law. This the commissioner may reasonably have assumed to be the fact, and in itself justified him in issuing his warrant upon the showing made. The warrants, therefore, upon their face were legal. That, of course, in itself, would not justify their use in the search of a dwelling house, in the absence of the showing required by section 25, supra. In the light of considerations soon to be noticed, however, that circumstance becomes immaterial in respect of these motions.

The other matters contained in the affidavits might not add to their legal sufficiency, but in any event they would not in any wise detract therefrom. Presumably the premises were adequately described. That is certain which can be made certain. And it is to be inferred that from the description given the right premises could be located. Nothing appears to the contrary. To require the property for which search was to be made to be "particularly identified, named and described" would obviously make it impossible to enforce the prohibition law with any degree of effectiveness. One having abundant knowledge that a still is contained within a certain building may yet be unable to describe the still with accuracy, or to indicate with any reasonable specification at all the attachments, appendages, utensils, and the like, accompanying it and entering into the makeup of the means whereby...