Fry v. United States

• Decision Date: 23 November 1925
• Docket Number: No. 4638.,4638.
• Citation: 9 F.2d 38
• Parties: FRY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

9 F.2d 38 (1925)

FRY et al. v. UNITED STATES.^*

No. 4638.

Circuit Court of Appeals, Ninth Circuit.

November 23, 1925.

Shorett, McLaren & Shorett and Henry Clay Agnew, all of Seattle, Wash., for plaintiffs in error.

Thos. P. Revelle, U. S. Atty., and J. W. Hoar, Asst. U. S. Atty., both of Seattle, Wash.

Before GILBERT, HUNT, and McCAMANT, Circuit Judges.

HUNT, Circuit Judge.

Plaintiffs in error, hereafter called defendants, were convicted of conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.); the purpose of the combination being to possess and sell intoxicating liquor, and to conduct and maintain common nuisances at certain places known as the Post Hotel, on Yesler Way, and the Seneca Hotel, at 1203½ First avenue, Seattle. Overt acts charged were that Fry and Brown at various times possessed and sold intoxicating liquor at the two places above named. Brown and Fry brought writ of error.

The validity of the search warrant and seizure is questioned. Affidavit for the search warrant was made by a federal prohibition agent, who set forth that one Riley Fry, Ernest Brown, and John Doe Keeley, and others unknown, "proprietors, and their employés, on the 15th of May, 1924, and thereafter, was and is possessing, transporting, and selling intoxicating liquor, all for beverage purposes; that in addition thereto affiant was told on said date by one of the proprietors that they had liquor for sale and would sell this affiant if he was properly introduced; that on previous occasions this affiant has seen drunken men come from said premises, has heard drinking and carousing in rooms 14 and 15, and has seen parties enter said premises without liquor and return with liquor — all on the premises described as 1203½ First avenue, Seattle, Wash., and on the premises used, operated, and occupied in connection therewith and under control and occupancy of said above parties. * * *"

The warrant, after usual formal matters, recited that whereas, application for a search warrant had been made on oath, supported by affidavit which included the statements above quoted, except in designation of rooms 14 and 15, continued: "And whereas, the undersigned is satisfied of the existence of the grounds of the said application, and that there is probable cause to believe their existence: Now, therefore, you are hereby commanded to enter said premises in the daytime or nighttime * * * and then and there search the same, and into and concerning said crime, and to search the persons of said above-named parties, and from him or her, or from said premises, seize any or all property * * * so used in or about the commission of said crime, and any and all intoxicating liquor and the containers thereof," etc.

We are of the opinion that the affidavit contained sufficient statements of evidentiary facts tending to show that defendants illegally possessed liquor. The statement by one of the proprietors of the described place to affiant that they had liquor for sale, and that he would sell to affiant if he were properly introduced, implies that the persons named kept some kind of a resort where they would sell liquor to one to whom they could sell without fear of prosecution. The further statement that affiant heard carousing in rooms 14 and 15 of the premises, coupled with the statement that affiant had seen persons enter the premises without liquor and return with liquor, impel the belief that liquor was unlawfully possessed in the...