In re Milburne

Decision Date06 May 1935
Docket NumberNo. 299.,299.
Citation77 F.2d 310
PartiesIn re MILBURNE. MILBURNE v. UNITED STATES.
CourtU.S. Court of Appeals — Second Circuit

Leonard Greenstone, of Brooklyn, N. Y., for appellant.

Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

This appeal concerns the right of the appellant, Milburne, to suppress evidence and procure the return of property alleged to have been obtained by an illegal search and seizure made by police officers of New York City on May 7, 1934. On that date the appellant was lessee in possession of a two-story building in the borough of Brooklyn. He used the ground floor as a public garage and auto repair shop and had his living quarters in the second story. During a period of six days police officers had tapped the wires leading to a public toll telephone in the office of Milburne's garage and had overheard conversations from which they inferred that whisky was being sold and delivered from the premises. On the afternoon of May 7th they went there without a search warrant. In a room on the second floor they found whisky and some incriminating papers, which they seized and subsequently turned over to agents of the United States. This proceeding seeks to suppress use of the liquor and papers as evidence and to obtain the return of them to the appellant. It was begun, prior to the filing of any indictment or information against Milburne, by notice of motion and verified petition addressed to the United States Attorney and to John Flynn, Supervisor, Bureau of Internal Revenue, Alcohol Tax Unit. Affidavits by two of the police officers were filed in opposition.

According to Milburne's affidavit the officers, after searching the garage, forced him to accompany them upstairs, took from his pocket a bunch of keys, and, over his protest, unlocked the door to his apartment and searched every room. In what he calls the "storeroom" they found some whisky which he kept for his own use, and in the closet of that room some books and papers which they also seized. They arrested him for a violation of the Liquor Taxing Act of 1934 (26 USCA § 267 et seq.). The story told by the officers' affidavits differs in material respects from that of the appellant. They say that they never entered the living quarters of Milburne; that having found no one in the garage they proceeded upstairs and along the hallway to a door on the right which was unlocked. They opened this door and stepped into a room where they found Milburne and two other men, with three barrels marked "Calvert Whiskey, Montreal," and all the paraphernalia of a cutting plant. On the window sill they found a list of places to which deliveries of whisky had been made in Brooklyn and Long Island, some of which places were not licensed to engage in the retail liquor business. Milburne admitted that the room was his but denied that the liquor was. One of the men telephoned to a man named Francis, who then came to the premises, and said that "the stuff" was his; he was placed under arrest.

The district judge stated in a memorandum that the opposing affidavits create a doubt whether the room searched was not in fact a cutting plant separate from but connected with Milburne's living quarters. He denied the petitioner's motion without prejudice to renewal upon the trial. The petitioner then moved for a reargument and for leave to examine the police officers orally under oath, supporting the motion by affidavits by himself, his wife, and his attorney. The district judge adhered to his view that "it is impossible to make an intelligent disposition of this motion until the trial, when all the facts and circumstances can be brought to light." He denied the motion for reargument, and on September 10, 1934, the order was entered from which this appeal is taken.

It appears from the affidavits that no indictment or information had been returned against the petitioner when his motion was before the District Court. His application for suppression of the evidence and return of the property was an independent proceeding, and denial of relief was a final and appealable order. Cogen v. United States, 278 U. S. 221, 225, 49 S. Ct. 118, 73 L. Ed. 275; Go-Bart Importing Co. v. United States, 282 U. S. 344, 356, 51 S. Ct. 153, 75 L. Ed. 374; Perlman v. United States, 247 U. S. 7, 13, 38 S. Ct. 417, 62 L. Ed. 950.

The argument has revolved chiefly about the question whether the room in which the liquor and other articles were found and seized was part of the appellant's dwelling house. If it was, concededly the...

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22 cases
  • Nelson v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 2, 1953
    ...41 S.Ct. 574, 65 L.Ed. 1048, and note 53, infra; Perlman v. United States, 1918, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; In re Milburne, 2 Cir., 1935, 77 F.2d 310. And see United States v. Bianco, 3 Cir., 1951, 189 F.2d 716; United States v. Rosenwasser, 9 Cir., 1944, 145 F.2d 1015, 156 A.L......
  • Elkins v. United States
    • United States
    • U.S. Supreme Court
    • June 27, 1960
    ...27 Geo.Wash.L.Rev. 392, 5 N.Y.L.F. 301, 6 U.C.L.A.Rev. 703. 3 See, e.g., Rettich v. United States, 1 Cir., 84 F.2d 118; Milburne v. United States, 2 Cir., 77 F.2d 310; Miller v. United States, 3 Cir., 50 F.2d 505; Riggs v. United States, 4 Cir., 299 F. 273; Timonen v. United States, 6 Cir.,......
  • Di Bella v. United States United States v. Koenig
    • United States
    • U.S. Supreme Court
    • March 19, 1962
    ...the search too often cannot truly be determined until the evidence at the trial has brought all circumstances to light. See In re Milburne, 77 F.2d 310, 311 (1935); Grant v. United States, 291 F.2d 227, 229 Nor are the considerations against appealability made less compelling as to orders g......
  • United States v. Benanti
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 6, 1957
    ...857, 65 S.Ct. 1184, 89 L.Ed. 1977; Taylor v. Hudspeth, 10 Cir., 113 F.2d 825; Rettich v. United States, 1 Cir., 84 F.2d 118; In re Milburne, 2 Cir., 77 F.2d 310; Gowling v. United States, 6 Cir., 64 F.2d 796; Burkis v. United States, 3 Cir., 60 F.2d 452, certiorari denied 287 U.S. 655, 53 S......
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