Giacolone v. United States
| Decision Date | 07 June 1926 |
| Docket Number | No. 4768.,4768. |
| Citation | 13 F.2d 108 |
| Parties | GIACOLONE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
S. A. Gagliardi, Charles T. Peterson, and Charles O. Bates, all of Tacoma, Wash., for plaintiff in error.
Thos. P. Revelle, U. S. Atty., and Arthur E. Simon, Asst. U. S. Atty., both of Seattle, Wash., and Carroll A. Gordon, Asst. U. S. Atty., of Tacoma, Wash.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
This is a writ of error to review a judgment of conviction on counts 2 to 5, inclusive, of an indictment charging violations of the internal revenue laws relating to the manufacture of intoxicating liquor. Count 2 charges that the plaintiff in error and Dick Manzo and John Lupo, at a certain time and place within the jurisdiction of the court, had in their possession and under their control two stills and distilling apparatus, set up for the making and distilling of alcoholic liquor, which said stills had not then nor theretofore been registered by the plaintiff in error or by Manzo or Lupo. The third count charges that the same parties, at the same time and place, used the two stills for the purpose of distilling spirits in a certain shed or outbuilding situated in an inclosure with a dwelling house. Count 4 charges that the same parties, at the same time and place, carried on the business of distillers without having given a bond. Count 5 charges that, at the same time and place, the same parties made and fermented certain mash fit for the distillation of spirits, in a certain building and on the certain premises which building and premises were not then and there a distillery duly authorized according to law.
Before the trial the plaintiff in error filed a petition to suppress evidence. From this it appeared that the plaintiff in error and his codefendants were in the exclusive and lawful possession of certain real property therein described, and on December 16, 1924, were entitled to the exclusive and unmolested possession thereof, such property consisting of a farm, farm buildings, and dwelling house occupied by the plaintiff in error and his family; that on the above date certain federal prohibition agents entered the premises and searched the same, finding therein the distilling apparatus and intoxicating liquor described in the indictment; that at the time of such entry and search the officers did not exhibit a search warrant, and no search warrant was served on the petitioners; and it was averred on information and belief that the entry was made without a search warrant and without authority of law, in violation of the Fourth and Fifth Amendments to the Constitution.
In opposition to the petition to suppress, it was made to appear that the search was in fact made under and by virtue of a search warrant, and copies of the warrant and the application therefor were attached. The affidavit for the search warrant averred in direct terms that one John Doe Ferris, whose true name was unknown, on December 15, 1924, and thereafter was and is possessing a still and distilling apparatus, and materials designed and intended for use in manufacturing intoxicating liquor, and in manufacturing, possessing, and selling intoxicating liquor, all for beverage purposes, and in addition thereto affiant on personal investigation could smell the odor of mash in a state of fermentation, and could see steam coming from the barn in which the still was located, and saw a truck with kegs going into the barn, all on the premises described as a farm occupied by said John Doe Ferris, located on the Summit road, 2.8 miles southerly of the city of Tacoma water pipe line, and was the second farm on the left side of the said road after turning to the right. The search warrant recited the facts as set forth in the affidavit and described the premises in the same way. Objection is now made to the search warrant, first, because there was no sufficient showing of probable cause; second, because there was no sufficient description of the premises to be searched; and, third, because the officers did not execute and make return of the warrant as required by law.
The contention that there was no sufficient showing of probable...
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