Herine v. United States
| Decision Date | 05 December 1921 |
| Docket Number | 3665. |
| Citation | 276 F. 806 |
| Parties | HERINE v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Ninth Circuit |
Chauncey F. Tramutolo, of San Francisco, Cal., for plaintiff in error.
John T Williams, U.S. Atty., of San Mateo, Cal., and Thomas J Sheridan, Asst. U.S. Atty., of San Francisco, Cal.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
Plaintiff in error was convicted under an information charging that on June 20, 1920, he knowingly, willfully, and unlawfully, and in violation of section 21 of the National Prohibition Act (41 Stat. 314), maintained a common nuisance, in that he did unlawfully, willfully, and knowingly keep in certain described premises in San Francisco certain intoxicating liquor, sherry, and port, and then and there fit for use for beverage purposes. Before trial defendant, by his attorney, petitioned for an order directing the prohibition enforcement officer to return the liquor and wine, which were seized in the apartments of the defendant on the evening of his arrest. The petition set up that the seizure was made by a policeman of the city of San Francisco but that the liquors and wines were being retained by a district prohibition enforcement officer; that the seizure was in violation of the Fourth and Fifth Amendments to the Constitution of the United States, and that the government intended to use the seized property against defendant at the time of his trial, unless return was ordered. By return the persons charged to have made the seizure denied it, or that they retained possession of any whisky or brandy, or that the government intended to use them against defendant at any trial to be had.
Respondents set up that on the night of June 20th the police were notified that at certain apartments in San Francisco the peace and quiet of people was being disturbed by loud and boisterous noise and that intoxicating liquors were being sold therein; that a policeman, with other police officers of the city, went to the rooms, found the doors open, and saw bottles of intoxicating liquor and glasses, and heard loud and boisterous noises being made by the occupants, and that thereupon the officers entered the rooms and found defendant and several other men and some women, all of whom were drunk and noisy, boisterous and disturbing the peace; that there were numerous bottles and kegs containing sherry and port wine; that defendant then and there, in the presence of the officers, furnished four of the men and the three women some of the wine; that defendant told the officers he was selling the wine for 25 cents per drink; that he said he lived in the Adair Hotel, and had no permit to move the wine from the Adair Hotel to the Summerville Apartments; that thereupon a police officer arrested defendant, and took the bottles of wine and kegs of sherry and port wine; that on information obtained as a fact defe...
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