Cabitt v. Potter

• Decision Date: 31 October 1923
• Docket Number: 2507.
• Citation: 293 F. 54
• Parties: CABITT v. POTTER.
• Court: U.S. District Court — District of Massachusetts

293 F. 54

CABITT v. POTTER.

No. 2507.

United States District Court, D. Massachusetts.

October 31, 1923

John F Myron, of Boston, Mass., for plaintiff.

Wm. J White, Jr., Sp. Asst. U.S. Atty., of Lowell, Mass., for defendant.

LOWELL District Judge.

The petitioner did business as a druggist at 109 Green street Boston, under the name of the 'Canning Pharmacy.' He had a druggist's permit under the National Prohibition Act (41 Stat. 305). On August 23, 24, and 25, 1923 prohibition agents went to the store, and, on asking for a pair of shoes, were given on each occasion a pint of whisky, for which they paid $5.50. Five pints in all were thus purchased. Each bottle had on it a label, with the name of a person and the name of a physician as prescribing the liquor. On August 25th, after the last sale, an employee named Kaplan, who had sold the liquor, was placed under arrest without a warrant. The store was searched, and a quantity of liquor was seized. There was no search warrant. Cabitt testified that he did not know anything about illegal sales at the place, but his credibility as a witness did not impress me. Kaplan was arrested, pleaded nolo, and was fined $100. A proceeding to revoke the permit is now pending.

This petition is brought for the return of the liquor. The petitioner contends that the arrest was illegal, or that at any rate the search was illegal, and that therefore the liquor should be returned to the petitioner. There can be no question that the arrest of Kaplan was legal. He had committed a criminal offense in the presence of the arresting officer. U.S. v. Borkowski (D.C.) 268 F. 408; 1 Zoline, Fed. Criminal Law and Procedure, Sec. 18.

At the time of the arrest the premises were searched for liquor used in the illegal sales. This action of the arresting officer was lawful. 1 Bishop, Criminal Procedure (4th Ed.) Sec. 211; Weeks v. U.S., 232 U.S. 383, 392, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; U.S. v. Welsh (D.C.) 247 F. 239; Id. (C.C.A.) 267 F. 819; U.S. v. Murphy (D.C.) 264 F. 842; U.S. v. Snyder (D.C.) 278 F. 650.

As to the search, the petitioner relies on Francis Drug Co. v. Potter (D.C.) 275 F. 615, In re Alpern (D.C.) 280 F. 432, and Friedman v. Yellowley (D.C.) 290 F. 248. In the first case a search warrant was issued on the evidence of one sale, and Judge Morton says:

'I do not think the mere fact of an illegal sale on the drug company's premises sufficient to warrant a finding that its stock of liquor was being held for illegal purposes.' 275 F. 615, 617.

The other two cases followed the one quoted from. In the Alpern Case it does not appear how many sales there had been. The court held that a search warrant for liquor held by a druggist, granted on the ground of illegal sale, was void, and says that Judge Morton correctly decided the case of Francis Drug Co. v. Potter, on the ground that 'a single sale did not afford ground for seizing the entire stock of liquor.' 280 F. 432, 436. The last case cited was one where the stock of a druggist was seized without the evidence of any sales. In none of these cases was there an arrest of a person committing an offense in the presence of the officer.

In the present case there was evidence which satisfied me that the stock of liquor was intended to be used, and was being used, for illegal sales. Many cases were cited to me by the petitioner, besides those already referred to. Some of them were cases of illegal searches in dwelling houses. These authorities seem to me not in point, as the Volstead Act is careful to protect a man's dwelling house from illegal search, and the only way of securing that protection is to order the return of liquor seized on an illegal search. The following cases in the United States Supreme Court were also cited: Boyd v. U.S., 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746; Weeks v. U.S., 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. U.S., 255 U.S. 298, 41 Sup.Ct. 261, 65 L.Ed. 647; Amos v. U.S., 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654.

These cases were all decided without any reference to the National Prohibition Act, and they were all cases where the only question argued before the court was the right to use in a criminal prosecution evidence which had been illegally secured. It is apparent that the Supreme Court cases cited are not in point.

The petitioner requested the following rulings:

'First. That on all the evidence in the case the court rules as a matter of law that the whisky and other property seized were lawfully acquired, possessed, and used by the petitioner.

'Second. The court rules as a matter of law that the whisky and other property was seized without a search warrant.

'Third. The court rules as a matter of law that the whisky and other property seized was unlawfully taken from the possession of the petitioner without a search warrant and must be returned to him.

'Fourth. The court rules as a matter of law that a permit was legally issued to the petitioner, and the whisky and other property seized were lawfully in the petitioner's possession at the time of said seizure without a warrant.

'Fifth. The court rules as a matter of law that the whisky and other property seized as aforesaid is not contraband.

'Sixth. The court rules as a matter of law that the whisky and other property aforesaid were lawfully in the possession of the petitioner at the time of said seizure and that the seizure of said whisky and other property without a warrant was unlawful.

'Seventh. That the court rules as a matter of law that the whisky and other property seized without a warrant was in violation of the fourth amendment to the Constitution.

'Eighth. That the court rules as a matter of law that the whisky and other property seized without a warrant was unlawful and illegally seized, and that it was an unreasonable search and

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