Feitler v. United States

• Decision Date: 19 July 1929
• Docket Number: No. 3996.,3996.
• Citation: 34 F.2d 30
• Parties: FEITLER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

34 F.2d 30 (1929)

FEITLER et al. v. UNITED STATES.

No. 3996.

Circuit Court of Appeals, Third Circuit.

July 19, 1929.

Ward Bonsall and John S. Pyle, both of Pittsburgh, Pa., for appellants.

John D. Meyer, U. S. Atty., and Jos. A. Richardson, Asst. U. S. Atty., both of Pittsburgh, Pa.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

On a libel for the forfeiture of goods and wares which, after search, the United States had seized because designed for the manufacture of liquor intended for use in violating the National Prohibition Act, the District Court decreed that the goods so seized and enumerated in the libel be forfeited to the United States and destroyed. The respondents appealed. The many errors they assign may be grouped and reduced to three.

The first is that the libel is bad as a pleading because it does not state facts which in themselves warrant or sustain the decree asked for. 33 Corpus Juris, 1139.

The libel avers the previous seizure and present custody by the United States of contraband liquors and property designed for the manufacture of such liquors which the respondents unlawfully possessed, held and used at a named place in violation of section 25, title 2, of the National Prohibition Act (27 USCA § 39). As this is a pleading not in a criminal action but in a civil suit, it is, we think, good under authority of United States v. 385 Barrels of Wine, 300 F. 565, if any authority be needed in view of the clear averments of the unlawful possession and intended use of the property, aided by a full and carefully prepared bill of particulars made a part of the libel.

The respondents next charge error in the decree because, as they claim, it is based on a search and seizure made in violation of the Fourth Amendment to the Constitution in that the affidavit on which the search warrant issued did not show probable cause. The protection which the Fourth Amendment affords against unreasonable searches and seizures is so differently regarded by persons who, on the one hand, in their zeal to enforce some other law are inclined to impinge upon this law, and persons who, on the other hand, resort to it as a cover in violating some other law, that this court, conscious of its duty to maintain this constitutional provision in all its integrity and sanctity and alert to stem any effort to enlarge or restrict it by misuse in one way or another, always pauses whenever action under the provision is challenged and, even when on its face it seems trivial, gives it full and very careful consideration. Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Legman v. United States (C. C. A. 3rd) 295 F. 474, 478.

We find that the warrant conforms to the Amendment in that it is supported by oath and discloses particularly the place to be searched, which in this instance was not an occupied dwelling but a warehouse, and describes generally the things to be seized, leaving open only the question of probable cause. As to this the affiants stated that they had good reason to believe, and did believe, that upon the premises named there were located and concealed intoxicating liquors and property for the manufacture of intoxicating liquors, which were being held and possessed for beverage purposes in violation of the Act; that the facts tending to establish probable cause of the affiants' belief were that when standing about seventy-five feet away they detected a strong odor of moonshine whisky emanating from the premises; that on the day before they had made a like detection; that during ten days' observation they saw motor cars with license plates of other states going to and from the place; and they saw in the building about one hundred 5-gallon cans of the kind bootleggers use for conveying moonshine whisky.

Whether these facts so averred and sworn to constitute probable cause on which to predicate a valid search warrant cannot be tested by any fixed rule of law but can be determined by finding that they are such as to warrant a man of sense, prudence and caution in believing that an offense against the law is being committed. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Dumbra v. United States, 268 U. S. 435, 45 S. Ct. 546, 69 L. Ed. 1032. When an odor of liquor emanates from a warehouse — not a bonded warehouse and not one operating under a permit — and when it emanates on a second occasion, it is not unreasonable for one, charged with a duty, to use and in a measure rely upon his sense of smell as in other cases he may rely upon his sense of sight or taste. McBride v. United States (C. C. A.) 284 F. 416; Id. 261 U. S. 614, 43 S. Ct. 359, 67 L. Ed. 827; Lee Kwong Nom v. United States (C. C. A.) 20 F.(2d) 470; especially in connection with the other circumstances of incoming and outgoing motor vehicles from distant states and the presence of cans of the kind known to be used in unlawful liquor traffic. We hold that the affidavit on which the search warrant issued stated facts which established the constitutional essential of probable cause.

The third and most serious question raised on this appeal relates to the property seized under the search warrant and forfeited under the libel. The truth, established by the search, is that these respondents kept what might be called a bootleggers' outfitting establishment, that is, an establishment to equip bootleggers with every article they would need in plying their unlawful trade. The prohibition agents, acting under the search warrant, seized about every movable thing in sight. Aside from what has been returned to the respondents and what should be returned to them, we are here concerned only with the property the government seized and specifically named in its libel as liquor and property held and possessed for unlawful use. This includes liquor found in several partly filled cans and jugs, more than a hundred empty 5-gallon cans, several thousand empty bottles of different shapes, many with labels already on them and packed in cartons ready for delivery, several thousand cardboard cartons of different kinds, several hundred demijohns, several hundred bags and boxes of corks, sealing wire, wrappers for whisky bottles, twine, caps for bottles, crimping machines, labeling machines, siphons and filters, a large number of assorted labels, cans of glyco, flavoring nuts, glycerin, gin extract, syrup, and (aside from other articles too numerous to mention) finally, 402 whisky barrels all containing whisky chips and more than half containing a small quantity of whisky. Whisky chips are shavings from the interior of whisky barrels and, having absorbed whisky, are used in the manufacture of bootlegger liquor. Moreover, the barrels, not having been treated to prevent the extraction of their liquor content, could be washed out with water and would on many washings through many years still yield a product which, though doubtfully called whisky and having an alcoholic content well above that limited by law, is fit for beverage purposes, — so it was testified. In addition to these articles the search disclosed approximately 18,000 forged strip stamps — cap sealing stamps — in the respondents' possession bearing the names of different distillers, some American and some Canadian.

This was not a heterogeneous stock in trade open to casual purchasers desiring bottles, corks, barrels, syrup and other wares for personal or commercial purposes. The stock was so selected, kept and arranged as to make separate and distinct liquor set-ups. For...