Geraghty v. Potter

• Decision Date: 09 March 1925
• Docket Number: No. 2899.,2899.
• Parties: GERAGHTY v. POTTER.
• Court: U.S. District Court — District of Massachusetts

5 F.2d 366 (1925)

GERAGHTY v. POTTER.

No. 2899.

District Court, D. Massachusetts.

March 9, 1925.

David H. Keedy and Brooks, Kirby, Keedy & Brooks, all of Springfield, Mass., for plaintiff.

Harold P. Williams, U. S. Atty., Elihu D. Stone, Sp. Asst. U. S. Atty., both of Boston, Mass., for defendant.

BREWSTER, District Judge.

This is a petition brought by James Geraghty, at one time owner and proprietor of a near-beer saloon in Holyoke, Mass., to recover possession of a quantity of liquor taken from his saloon by federal prohibition agents, who acted under a search warrant which was subsequently declared illegal.

Geraghty was indicted for the illegal possession of this liquor. Before trial the search warrant was quashed and the indictment was nol prossed. Thereafter these proceedings were instituted.

Petitioner's counsel cites a long array of cases in support of the general proposition that property unlawfully seized by federal authority should be returned.

The leading cases in the United States Supreme Court are Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654.

In this circuit the right to a return has been recognized in Giles v. United States (C. C. A.) 284 F. 208; Francis Drug Co. v. Potter (D. C.) 275 F. 615; Godat v. McCarthy (D. C.) 283 F. 689; Keefe v. Clark (D. C.) 287 F. 372; United States v. Vigneaux (D. C.) 288 F. 977; Margie v. Potter (D. C.) 291 F. 285; United States v. Descy (D. C.) 284 F. 724; United States v. Madden (D. C.) 297 F. 679; United States v. Intoxicating Liquors (D. C. N. H.) 290 F. 824; United States v. Intoxicating Liquors (D. C. Mass.) 289 F. 278. Numerous decisions in other jurisdictions are cited to the same effect.

Notwithstanding this somewhat imposing array of authorities, the government has argued, and with considerable force, that the petition should not be granted. I have, therefore, deemed it advisable to review somewhat at length the pertinent cases and to consider the issues involved as though the questions were still open in this jurisdiction.

It should be noted at the outset that we are not now dealing with a case where property was taken from a dwelling house. This fact clearly distinguishes the case at bar from cases like United States v. Vigneaux, supra, and United States v. Descy, supra. Section 33 of the act expressly declares that it shall not be unlawful to possess liquor in one's private dwelling, and to throw the burden of proving that such possession is lawful comes near depriving the possessor of his presumption of innocence, but possession elsewhere is, under the act, deemed to be prima facie unlawful. The issue here presented is whether intoxicating liquor, taken from a place other than a dwelling house, should be returned.

In cases where, as in Weeks v. United States, supra, and United States v. Madden, supra, a motion for a return was presented before trial, the return may well be ordered upon the theory that such course was necessary to prevent improper use of the property in evidence. The petitioner here cannot ask for a return on any such grounds. The criminal proceedings against him have been fully terminated, and a return of the liquor is not necessary to prevent an unlawful use of it as evidence.

In the cases of Francis Drug Co. v. Potter, supra, Godat v. McCarthy, supra, Keefe v. Clark, supra, and Margie v. Potter, supra, the question of improper use of property as evidence was not presented; but with the possible exception of Godat v. McCarthy, supra, these cases are not decisive.

In Francis Drug Co. v. Potter, supra, Judge Morton expressly found that the possession by the drug company of the liquor was not unlawful. In Keefe v. Clark, supra, it appears that liquor was taken from a private storehouse, which constituted a part of Keefe's private dwelling. So, also, in United States v. Intoxicating Liquors, supra (Massachusetts case), the liquor was seized in private dwellings. In Margie v. Potter, supra, petitioner had lawfully acquired the champagne and had been acquitted of the crime of illegal transportation. In United States v. Intoxicating Liquors, supra (New Hampshire case), Judge Morris finds that the liquor brought by the claimant into New Hampshire from Canada was not, under the circumstances, contraband in the United States.

It is difficult to distinguish Godat v. McCarthy, supra, on the facts, and the language of Judge Morton in the opinion has a strong tendency to support the contention of the petitioner in the present case. Notwithstanding Godat v. McCarthy, supra, the government has seen fit to resist Geraghty's petition and has filed an elaborate brief in support of its contention that unless and until the petitioner can prove that he was lawfully in possession of the intoxicating liquors, unlawfully seized, he is not entitled to a return.

The government's line of argument, as I understand it, is that title 2, § 3, of the Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½aa), makes it unlawful to possess intoxicating liquors except as authorized by the act, and that there is nothing in the act that authorized the proprietor of a near-beer saloon to possess such liquors; that title 2, § 25 (section 10138½m), of the act again provides that it shall be unlawful to possess such liquor intended for use in violating the act, and that no property rights shall exist in such liquor; that title 2, § 33 (section 10138½t), provides that after February 1, 1920, the possession of liquor by any person not legally permitted under the act shall be prima facie evidence that such liquor is kept for the purpose of being sold or otherwise disposed of in violation of the provisions of the act, and that the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used; that this is a proceeding concerning such liquor; and that unless petitioner can allege and show affirmatively that he lawfully acquired, possessed, and used the liquor he is not entitled to maintain this petition. This line of argument is not altogether novel. It has been repudiated in this district, not only in Godat v. McCarthy, supra, but in United States v. Intoxicating Liquors, supra (Massachusetts case), and in United States v. Vigneaux, supra. In other jurisdictions it has failed to win approval. See New Jersey Wholesale Drug Co. v. Brown (D. C.) 289 F. 108; United States v. Kelih (D. C.) 272 F. 484.

On the other hand, the government has cited a number of cases from other jurisdictions where a return of the liquor has been denied and, after a careful consideration of these cases, I find only two that can be regarded as supporting the contention of the government.

In O'Connor v. United States (D. C.) 281 F. 396, and in Rose v. United States (C. C. A.) 274 F. 245, the seizures were held valid. In United States v. O'Dowd (D. C.) 273 F. 600, the seizure was by state officers and, moreover, the court found that application for redelivery had been delayed for an unreasonable time. In United States v. Alexander (D. C.) 278 F. 308, and in United States v. Dziadus (D. C.) 289 F. 837, the court seems to have refused a return as a matter of course without discussing the powers and duties of the court in the premises. But over against these cases can be set a number of cases where the courts have equally, as a matter of course, and without discussion, ordered a return of liquor. See United States v. Donnelly (D. C.) 288 F. 982; United States v. Harnich (D. C.) 289 F. 256; Lipschutz v. Davis (D. C.) 288 F. 974; United States v. Boasberg (D. C.) 283 F. 305; United States v. Ray & Schultz (D. C.) 275 F. 1004.

In United States v. Rykowski (D. C.) 267 F. 866, and in United States v. Kaplan (D. C.) 286 F. 963, the court has refused to return the liquor notwithstanding the invalidity of the search and seizure, and in these cases the return has been denied upon a judicial determination that the liquor was contraband. It was said in United States v. Kaplan, supra, that —

"There is no law requiring or justifying the return of property to any one whose possession of it will constitute a crime, or whose use of it can be only for committing a crime."

This is a plausible and attractive statement, but I have difficulty in reconciling it with my views respecting other important fundamental rights.

In the case now before me it is true that on the facts, as we now know them, the liquor is liquor outlawed by the act, and that it was contraband when seized and will be, if returned, intoxicating liquors unlawfully possessed.

It seems to me, however, that the government's line of reasoning leads up to constitutional barriers which cannot lightly be set aside. How can it be judicially declared that the liquor is outlawed without taking advantage of evidence obtained in violation of constitutional rights? Although section 33 creates a presumption that liquor in a place other than a dwelling house is unlawfully possessed, before a forfeiture could be worked it still would be necessary to show where the liquor was possessed; that it contained more than one-half of 1 per cent. by volume of alcohol; and that it was fit for beverage purposes. None of these facts could be established without resorting to testimony unlawfully obtained. See United States v. Slusser (D. C.) 270 F. 818; United States v. Mattingly, 285 F. 922, 52 App. D. C. 188. The government may not take advantage of its own wrong. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319.

It is pretty well settled by the authorities that evidence obtained in violation of the guaranties of the Fourth Amendment cannot be used in forfeiture proceedings. Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; United States v. Zucker, 161 U. S. 475, 16 S. Ct. 641, 40 L. Ed. 777; ...