Dietz v. Cavender
Decision Date | 09 April 1926 |
Docket Number | 37196 |
Parties | F. H. DIETZ, Appellee, v. JAMES CAVENDER, Chief of Police, et al., Appellants |
Court | Iowa Supreme Court |
Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.
Petition in equity, to restrain James Cavender, the chief of police and John Jenney, councilman and the head of the public safety department, and the city of Des Moines from obtaining search warrants, searching customers, picketing plaintiff's premises, etc. A temporary injunction was allowed, and the defendants appeal.
Reversed.
John J Halloran, Reson S. Jones, Chauncey A. Weaver, and Paul Hewitt, for appellants.
Chester J. Eller, for appellee.
The petition alleges that plaintiff is conducting a drug store; that his business has been searched by the police eight or ten times within the year, without discovering intoxicating liquors; that the defendant councilman and the chief of police are engaged in malicious trespasses in directing police officers to go upon plaintiff's premises without search warrants and in searching patrons and picketing the premises; that none of the officers have discovered any misconduct of any kind; and that plaintiff is conducting a legitimate business. An amendment alleges that various search warrants were obtained under the orders of the defendant chief and councilman, and searches made without grounds, and illegally. The relief prayed is injunction. Ten informations against the plaintiff or his firm and premises between February 25, 1924, and March 19, 1925, and five search warrants have been certified to this court. The returns on the five search warrants are, "Nothing found." The informations are in the usual form, charging the plaintiff with the possession of intoxicating liquors with intent to sell, and are made by eight different informants. Plaintiff testifies that the officers, since March 13, 1925, have been almost continuously stationed in or about his place of business, over his protest, sometimes exhibiting search warrants, other times not, searching customers as they left the store, with the result that his business has half fallen off. He testified:
He says he had a pharmacist there, named Peet, and a colored man, named Elmore, who occupied the balcony sometimes; that he "sometimes goes up there and plays with the radio * * * for a few minutes at a time, several times a day;" that Elmore does not keep alcohol up there. Plaintiff says he was arrested February 26th, for liquor nuisance, taken to the station, and waived to the grand jury; that Peet was arrested a short time before. Plaintiff offered 12 affidavits by persons stating that they were searched, upon leaving plaintiff's store, "without said officer having in his possession or exhibiting any warrants authorizing said search." The affidavits are silent in respect to purchase or possession of intoxicating liquors. A witness testified to being searched, and that he had "no stuff on me or in me or about me," and that the officer said he had no warrant. The defendant Cavender testified:
that Mrs. Barnett was brought to the station one night, and plaintiff was there; that he (Cavender) had said, "I expected to picket all of these bootlegging drug stores until I put them out of business;" and that his object in having the men there was to
Police Officer Sarchfield testified to making a search February 6, 1925.
The witness identified Exhibit 15 as an affidavit made by Mrs Barnett in his presence. The...
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