Hefferman v. United States

• Decision Date: 07 May 1931
• Docket Number: No. 4503.,4503.
• Citation: 50 F.2d 554
• Parties: HEFFERMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

50 F.2d 554 (1931)

HEFFERMAN v. UNITED STATES.

No. 4503.

Circuit Court of Appeals, Third Circuit.

May 7, 1931.

Franklin J. Graham, of Upper Darby, Pa., for appellant.

Michael J. S. Stoney, U. S. Atty., and Paul Freeman, Asst. U. S. Atty., both of Philadelphia, Pa.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.

WOOLLEY, Circuit Judge.

The indictment contains five counts for violations of the National Prohibition Act and concludes with allegations that the defendant had twice been convicted for like offenses. Two counts charge unlawful sale of intoxicating liquor, two unlawful possession, and one the maintenance of a common nuisance.

At the trial the government offered evidence tending to prove a sale of whisky by the defendant in a building in Chester, Pennsylvania, the issuance of search warrants on evidence of that sale, and execution of the warrants by a search of the building and discovery of a barroom of the ordinary type and seizure of a fifty gallon barrel of whisky, one-half barrel of unlabeled beer on tap, and seven hundred and twenty bottles of beer. The government then put in evidence the criminal docket of the same court to prove prior convictions.

The defendant offered no evidence. After one count for a sale had been withdrawn, the jury found the defendant guilty on all other counts and also found two previous convictions as alleged. This appeal followed.

The defendant assigns several errors in the trial of which the first is the action of the court in admitting evidence obtained under the search warrants. This assigned error is based on three grounds, the first being that the liquor so seized, with the exception of samples retained, had all been destroyed at the time of the seizure, and that, in view of the provision of the Act that "property so seized shall be subject to such disposition as the court may make thereof" (Title 2, § 25 27 USCA § 39), the agents, though lawfully entering upon the premises, became trespassers ab initio when they unlawfully destroyed the liquor; that they thus lost the protection and authority conferred upon them by the search warrants; that, therefore, the seizure of the liquor, both that destroyed and that retained as evidence was illegal and prohibited by the Fourth Amendment and that this and other evidence so procured became inadmissible because violative of the Fourth and Fifth Amendments to the Constitution.

This question is not new. It was for a time vigorously disputed and differently decided in lower courts, but in the case of McGuire v. United States, 273 U. S. 95, 47 S. Ct. 259, 71 L. Ed. 556, the Supreme Court resolved the question against the defendant with finality. The law of the McGuire decision was applied in this circuit in United States v. Griffin (D. C.) 17 F.(2d) 811, and, of course, rules this case.

The defendant next attacks the search warrants and the admission of evidence procured under them on the ground that, because of inaccuracies in describing the premises, it appears, as he contends, that the property searched was not the one described in the search warrants and the property described in the search warrants was not the one described in the indictment.

There is no doubt in law that a search warrant is a command to search the place named therein and it must be strictly obeyed. United States v. Innelli (D. C.) 286 F. 731. It does not authorize a search of some other place. While, admittedly, there is confusion in the descriptions of the place in this case, it does not follow that the place is uncertain or that the various acts alleged were done at different places.

The record shows this situation: The place, howsoever described, was in Chester, Pennsylvania. The sale was made at No. 600 Morton Avenue. In the first search warrant the building is described as located at East Sixth and Ontario Streets and Morton Avenue, and in the second search warrant as the Northwest Corner of Sixth Street and Morton Avenue. The first search warrant was executed at Sixth Street and Morton Avenue and Potter Street, the second at the Corner of Sixth Street and Morton Avenue, No. 600 Morton Avenue. The indictment names the premises as "Sixth Street, Morton Avenue and Potter Street (600 Morton Avenue)".

Though the defendant now attacks the warrants, their execution and the indictment as containing fatal variances, he did not take the stand, nor did he offer to prove by the testimony of others that the place described in one instrument was not the place described in the others. The confusion is explained by the fact that the one building at which the sale took place, the search was made and the indictment laid the offenses stood on a triangular lot formed by three streets one of which (Potter Street or Ontario Street) was perhaps erroneously named. Yet this error was cured, both in one of the search warrants and in the indictment, by putting in the street number — 600 Morton Avenue. That the slight inaccuracy in describing the property without destroying its identity does not invalidate a search warrant is sustained by Steele v. United States, 267 U. S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757; Rothlisberger v. United States (C. C. A.) 289 F. 72 and Giacolone v. United States (C. C. A.) 13 F. (2d) 108.

And, finally, the defendant contends that the search warrants were invalid...