O'Connor v. United States

• Decision Date: 17 June 1922
• Citation: 281 F. 396
• Parties: O'CONNOR v. UNITED STATES.
• Court: U.S. District Court — District of New Jersey

281 F. 396

O'CONNOR v. UNITED STATES.

United States District Court, D. New Jersey.

June 17, 1922

John A Coan, of South Amboy, N.J., for petitioner.

Isaac Gross, Asst. U.S. Atty., of Jersey City, N.J.

RELLSTAB District Judge.

The petitioner asks for the return of certain whiskies taken from his place of business by two agents of the federal Prohibition Commissioner. The testimony taken on the return of the rule to show cause discloses that, prior to the time the Eighteenth Amendment went into effect, the petitioner was a saloon keeper, selling intoxicating liquors at 123 Broadway, South Amboy, N.J.; that he remained in possession of the premises thereafter down to the time of the seizure that the premises contained a bar, chairs, and tables, and the usual paraphernalia incident to a liquor saloon, and were open to the public; that a short time previous to the seizure one of the agents purchased intoxicating liquors on these premises, which he drank thereon; that, when the agents entered the premises on the day in question, they found empty unwashed glasses on the bar still wet and smelling of whisky, and several bottles of whisky (one only partly filled) in an open safe, located in a small room, called an office, leading from the back of the bar; that the agents took these bottles of whisky from the safe in the presence of the petitioner's son, who was in charge of the premises. The petitioner was subsequently apprehended, and is now awaiting trial on a criminal information charging him with violating the National Prohibition Law (41 Stat. 305) in respect to the possession of such liquors. The agents seized these liquors without a search warrant, and the petitioner bases his right to their return upon the absence of such warrant.

The National Prohibition Act makes it-- 'unlawful to have or possess any liquor * * * intended for use in violating this title (title 2), or which has been so used, and no property rights shall exist in any such liquor. ' Section 25.

It also declares that--

('The possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold * * * or otherwise disposed of in violation of the provisions of this title. ' Id. Sec. 33, 1st cl.

It also provides that--

'Every person legally permitted under this title to have liquor shall report to the Commissioner within ten days after the date when the Eighteenth Amendment of the Constitution of the United States goes into effect, the kind and amount of intoxicating liquors in his possession. ' Id. Sec. 33, 2d cl.

The petitioner admits that he made no report of the liquors in question, as required in the last-quoted provision. As these liquors were neither reported nor contained in the petitioner's private dwelling, but in a place where business of some kind was carried on by him, and which place was open to the public, they were prima facie subject to seizure.

The petitioner invokes the Fourth Amendment to the United States Constitution, and cites Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834 Ann. Cas. 1915C, 1177, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup.Ct. 182, 64L.Ed. 319, and Amos v. United States, 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654, in support of his contention that these liquors were illegally taken. But neither this amendment nor the cited cases are applicable to the facts of this case.

As to the amendment: It reads:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

It is to be construed in conformity with the basic principles of the common law, which were familiarly known to the framers of the Constitution. Kansas v. Colorado, 206 U.S. 46, 94-95, 27 Sup.Ct. 655, 51 L.Ed. 956, and cases cited. Mr. Story, in his excellent work on the Constitution (5the Ed., Sec. 1902, p. 648), with reference to this amendment, says: 'It is little more than the affirmance of a great constitutional doctrine of the common law.'

The use of writs of assistance by the British government in the American colonies just prior to the Revolution, empowering revenue officers, at their discretion, to search suspected places for smuggled goods, following on the heels of the use of general warrants in political matters in the mother country, were productive of intense indignation among the colonists, and no doubt contributed to the exciting causes which led to the Revolution and the incorporation of this particular amendment into the organic law of the land. See Story on Constitution, supra; Boyd v. United States, 116 U.S. 616, 625, 6 Sup.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177.

It is to be noted that this amendment has a dual purpose: First, the forbidding of unreasonable searches and seizures; and, second, the specifying of certain particulars to be observed before issuing warrants. Reasonable searches and seizures are not forbidden. Boyd v. United States, supra, 116 U.S.pp. 623, 624, 641, 6 Sup.Ct. 524, 29 L.Ed. 746; Haywood v. United States (C.C.A. 7) 268 F. 795, 803; United States v. Bookbinder (D.C.) 278 F. 216, 218. And there is no inhibition of making either without a warrant. Kathriner v. United States (C.C.A. 9) 276 F. 808; United States v. Snyder (D.C.) 278 F. 650. The right to arrest a person or thing offending against the law, without written warrant, under certain circumstances, long preexisted the causes which led to the judicial condemnation of arrest on warrants which failed to particularly describe the person or thing to be apprehended. This right was not drawn into question by such condemnation (In re John Wilkes, 19 Howell's State Trials, 981, 988; Dryden Leach v. Money, Id. 1001, 1026; Entick v. Carrington, Id. 1029; Wilkes v. Wood, Id. 1153), and continues unaffected by the prohibition and restrictions embodied in the Fourth Amendment or other parts of the United States Constitution (United States v. Welsh (D.C.) 247 F. 239; Ex parte Harvell (D.C.) 267 F. 997; United States v. Borkowski (D.C.) 268 F. 408; United States v. Kraus (D.C.) 270 F. 578, 582; Kathriner v. United States (C.C.A. 9) 276 F. 808; Elrod v. Moss (C.C.A. 4) 278 F. 123; United States v. Bateman (D.C.) 278 F. 231; United States v. Snyder (D.C.) 278 F. 650; In re Mobile (D.C.) 278 F. 949).

As to the cases cited by petitioner: In Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652 L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, and Amos v. United States, 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654, the defendants' respective homes were entered and searched, and certain of their properties (relevant evidence on the charges against them) seized, without a search warrant. These respective properties were subsequently used as evidence against them in a trial which resulted in their conviction. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup.Ct. 182 (64 L.Ed. 319), the defendants had been adjudged in contempt for refusing to obey...