Driskill v. United States
| Decision Date | 05 June 1922 |
| Docket Number | 3829. |
| Citation | 281 F. 146 |
| Parties | DRISKILL v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Spencer B. Pugh, of Phoenix, Ariz., for plaintiff in error.
Frederick H. Bernard, U.S. Atty., of Tuscon, Ariz., and Francis D Crable, Asst. U.S. Atty., of Phoenix, Ariz.
Before MORROW and HUNT, Circuit Judges, and DIETRICH, District Judge.
Defendant was convicted of having unlawful possession of intoxicating liquor (National Prohibition Act, 41 Stat. 314). He assigns as error (1) the reception of evidence alleged to have come into the possession of the government through a wrongful search and seizure; and (2) the refusal of the court to direct an acquittal because of the insufficiency of the evidence. The latter assignment is thought to be devoid of merit, and we dismiss it without discussion.
Search and seizure. On April 23, 1921, a deputy marshal, in company with two special agents and three state officers, went to the defendant's residence, in Phoenix, Ariz., to search for liquor, in execution of what he supposed was a valid warrant. With two of the officers, he knocked at the front door, and was admitted by the defendant's wife. The other three members of the party, in another car, drove into the alley at the rear of the house. Upon either side of the alley at this point, was a garage, one appertaining to the defendant's residence, and the other on premises owned by him, but leased to and occupied by a family named Luttner. Each garage had double doors on the alley side, and these were open. As the officers brought their car to a stop near defendant's garage, they observed him just inside the other garage, doing something with a trunk, stooping over, and apparently pushing it back into the corner. Upon being accosted, he stated that he lived across the alley and was 'putting some things over there,' referring to the garage where he was first seen. The officers then informed him that the deputy marshal had gone around to the front to make a search of his house whereupon he entered the house, and, upon hearing the warrant read, called attention to the fact that the number was not of his house, and angrily ordered the officers to get out.
The court below was apparently of the view that he afterwards changed his mind and consented to a search; but the question is not highly material, for the evidence objected to was found, not in the house, but in the garage...
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...F.2d 905, 906; Rosenberg v. United States, 8 Cir., 15 F.2d 179, 180; Rouda v. United States, 2 Cir., 10 F.2d 916, 918; Driskill v. United States, 9 Cir., 281 F. 146, 147; see Weeks, 'Standing to Object in the Field of Search and Seizure,' 6 Ariz.L.Rev. 65, 75; notes, 96 L.Ed. 66, 70; 78 A.L......
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