Altshuler v. United States
| Citation | 3 F.2d 791 |
| Decision Date | 09 February 1925 |
| Docket Number | No. 3206.,3206. |
| Parties | ALTSHULER v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Philip L. Garrett and George W. Lilly, both of Wilmington, Del., for plaintiff in error.
David J. Reinhardt, U. S. Atty., and James H. Hughes, Jr., Sp. Asst. U. S. Atty., both of Wilmington, Del.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Altshuler was tried and convicted on an information charging him with the unlawful transportation of liquor, his second offense against the National Prohibition Act. 41 Stat. 305 (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). To the sentence of imprisonment he has prosecuted this writ, charging error in the court's refusal of his motion for a directed verdict of acquittal based on the contention that his arrest was unlawful because made by prohibition agents without a warrant and that the use of the liquor as evidence against him at the trial was unlawful because seized in a manner violative of his rights under the Fourth and Fifth Amendments to the Constitution.
In February, 1923, Altshuler pleaded guilty in the District Court of the United States for the District of Delaware to an information charging him with the unlawful transportation of liquor. Believing that he was continuing his unlawful practices, Federal prohibition agents at Wilmington caused a representative to call Altshuler's home in Chester by telephone and place an order for twenty gallons of alcohol to be delivered in Wilmington, at a named address, between certain hours in the same evening. One of the agents listened to the telephone conversation which was conducted with a woman at Altshuler's home. Knowing the number of his automobile license, three agents proceeded to Penny Hill on the outskirts of Wilmington for the purpose of intercepting Altshuler should he approach. At the appointed time an automobile bearing his license number descended the hill. The agents, also in an automobile, came abreast of his car and gradually forcing it to the side of the road caused him to bring it to a stop. In the conversation which ensued the agents disclosed their identity and their purpose. Altshuler protested against their searching his car without a warrant but on seeing they were going to do it, he asked: "Cannot this thing be fixed up?" On entering the car the agents found twenty gallons of alcohol, the amount previously ordered. They then seized the liquor, took possession of the automobile and arrested Altshuler.
On the question of their authority to make the search, seizure and subsequent arrest we shall not follow the plaintiff in error in his review of the law of arrest without a warrant by civil officers at common law, for at common law an arrest of the nature of the one here in question was, of course, not possible and, therefore, was not known. We shall start with the assumption, on authority of Dovel v. United States (C. C. A. 7) 299 F. 948; Raine v. United States (C. C. A. 9) 299 F. 407, and on the reasoning of United States v. American Brewing Co. (D. C.) 296 F. 772 (United States v. Musgrave D. C. 293 F. 203, contra), that a Federal prohibition agent is "a civil officer of the United States" as that expression is used in the Espionage Act, tit. 11, § 6 (Comp. Stat. 1918, Comp. Stat. Ann. Supp. 1919, § 10496¼f), to which the National Prohibition Act makes express reference, and as such is "authorized to enforce" the National Prohibition law by making an arrest with a warrant. This authority being statutory, so the authority of a prohibition agent to make an arrest without a warrant must be found in a statute specially conferring it. Such authority we find in title 2, § 26 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½mm), which concerns "the commissioner, his assistant, inspectors or any officer of the law," within which official...
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