O'Connor v. Potter
| Decision Date | 30 September 1921 |
| Docket Number | 2047.,2046 |
| Citation | 276 F. 32 |
| Parties | O'CONNOR v. POTTER et al. WOODCOME v. SAME. |
| Court | U.S. District Court — District of Massachusetts |
James A. Hatton, of Boston, Mass., for plaintiffs.
The U.S. Attorney, for defendants.
These are two petitions seeking orders for the return of intoxicating liquors taken from the residence of the petitioners. They were heard in open court on oral and documentary evidence. The facts are as follows:
The petitioners Woodcome and O'Connor live on Hayward street in Fitchburg, in buildings used solely for residential purposes. On August 6, 1921, two officers of the internal revenue, one of them being also a prohibition officer, and another prohibition officer, went to the houses of the petitioners and took from each house 5 barrels of whisky. The officers had no search warrant or process of any kind neither petitioner was at home when the officers came; the officers explained to the wife of each petitioner that they were revenue officers, who desired to enter to examine goods subject to tax in accordance with Rev. St. Sec. 3177 (Comp St. Sec. 5900), and that it was her duty to allow them to enter. Having obtained entrance in this way, they discovered the whisky here in question. The stamps upon the barrels had been defaced or removed; parts of the stamps were found on the premises of each petitioner, indicating that they had been removed there. The officers then seized the liquor as being unlawfully possessed under the National Prohibition Act (41 Stat. 305) and carried it off. It is now in the custody of Mr. Potter as Prohibition Director.
Neither petition alleges that the liquor seized was the property of the petitioner; the allegations on this point being in each:
'That your petitioner neither affirms nor denies that the above-described property is his property, but reasserts that the property was taken from his premises without due process of law.'
Each petitioner testified in these proceedings. Neither gave any evidence concerning the ownership of the liquor, nor how it came into his possession. It appears to have been part of a lot of 20 barrels which was withdrawn from storage under permits in the name of the Emeline Drug Company, and the possession of it by the petitioners appears to have been unlawful under the Volstead Act.
Some time after the seizure, one Cunningham, who directed the officers to the premises in...
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In re Fried
...866, 870. See also Voorhies v. United States, 5 Cir., 299 F. 275, 277; United States v. Kaplan, D.C., 286 F. 963, 972, 975; O'Connor v. Potter, D.C., 276 F. 32, 33. 5 Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 6 See Frank, If Men Were Angels (1942) 316, 330; cf. Landis......
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...absence * * * constitutes no waiver of an unauthorized or invalid search and seizure." The author cites the Amos Case, supra, O'Connor v. Potter (D. C.) 276 F. 32, and Carignano v. State, 31 Okl. Cr. 228, 238 P. 507, as authority for his statement. Neither the Amos nor the O'Connor Cases, s......
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...of the liquor wrongfully seized is shown, it must be restored. United States v. Mattingly, 52 App. D. C. 188, 285 F. 922. In O'Connor v. Potter (D. C.) 276 F. 32, it was held that “moonshine” is contraband and will not be returned although the search was defective. In United States v. Alexa......
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State v. Dawson
...171, 203 P. 390; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; State v. Sheridan, 121 Iowa 164, 96 N.W. 730; O'Connor v. Potter, 276 F. 32; United States v. Slusser, 270 F. 818; States v. McHie, 194 F. 894; Hess v. State, 84 Okla. 73; 202 P. 310; 10 R. C. L. 933; State ex......