Dowling v. Collins
| Decision Date | 06 January 1926 |
| Docket Number | No. 4428.,4428. |
| Citation | 10 F.2d 62 |
| Parties | DOWLING v. COLLINS. |
| Court | U.S. Court of Appeals — Sixth Circuit |
W. T. Fowler, of Frankfort, Ky. (Wallace Muir, of Lexington, Ky., and O'Rear, Fowler & Wallace, of Frankfort, Ky., on the brief), for plaintiff in error.
Sawyer A. Smith, U. S. Atty., of Covington, Ky.) John E. Shepard and Rodney G. Bryson, Asst. U. S. Attys., both of Covington, Ky., on the brief), for defendant in error.
Before DONAHUE, MACK, and MOORMAN, Circuit Judges.
By original suit, the defendants in a pending criminal proceeding charged in several counts with conspiracies to violate the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) as to possession, sale, and transportation respectively of intoxicating beverages, seek the return of property alleged to have been illegally seized by the officers, the quashing of certain search warrants, and the suppression of the physical evidence. After full hearing, at which, in addition to other testimony, all of the evidence taken and proceedings had in the criminal case were introduced, the petition was dismissed on the several grounds of the legality of the search warrants, the reasonableness of the search and seizure, irrespective of any warrant, the election by petitioners of a similar remedy in the criminal case, and the finality and consequent binding effect of the unappealed orders made therein, denying similar relief.
It is unnecessary for the purposes of this decision to recite the facts at length. It suffices that on complaints that defendants customarily sold liquor in and from a building used for many years both as a residence and as an office for the transaction of all the business appertaining to two distillery warehouses, in which large quantities of liquor were stored, the prohibition officers accompanied two notorious bootleggers to the place, examined the auto in which they came, and found no liquor therein, saw them enter the house and return, saw dealings with other people, then heard a noise such as would be made by putting 2 sacks, each having a dozen quart bottles of whisky, into one of the empty autos, searched and found the whisky in the autos, were told then and there of its purchase, entered the house, and with search warrants, the validity of which we do not determine, searched the basement under the office and seized 478 sacks, each with 12 quarts, exactly like the 2 sacks in the auto. Petitioner lived with her grown children in the house; she was the widow of the distillery warehouse owner; as owner, she conducted the extensive business of dealing in warehouse receipts; the liquor in the basement had been there since before prohibition days; it was asserted to be for the use of the family and guests, whom she entertained on a large scale.
The certificate of evidence in this case recites that upon the calling of the criminal case the defendants filed a written motion to quash the search warrant "and asked for the suppression of the evidence obtained thereunder and for the return of the goods seized." The written motion,...
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