Hurley v. United States

• Decision Date: 18 July 1924
• Docket Number: 1640.
• Citation: 300 F. 75
• Parties: HURLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

300 F. 75

HURLEY v. UNITED STATES.

No. 1640.

United States Court of Appeals, First Circuit.

July 18, 1924

Michael A. Henebery, of Worcester, Mass., for plaintiff in error.

Elihu D. Stone, Sp. Asst. U.S. Atty., of Boston, Mass.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON Circuit Judge.

Two questions are raised by this writ of error: (1) Whether the commissioner who issued a search warrant could find probable cause for its issue from the evidence before him. (2) Whether the officer who served the warrant, having destroyed part of the property seized by him, became a trespasser ab initio, so that other property, intoxicating liquors, with the equipment for the manufacture of the same, seized upon the same search warrant, could not be used in evidence; a petition for its return having been seasonably filed.

We find no merit in the contention that the commissioner acted in an unauthorized manner in finding probable cause for issuing a warrant. It was applied for by a prohibition agent accompanied by the affidavit of a police officer in the city of Worcester, in the district of Massachusetts, in which the officer stated that, at different times, he had seen men enter the tenement in Worcester of the plaintiff in error and emerge therefrom within a reasonable time in an intoxicated condition; that upon one day shortly before the warrant was issued he saw ten men enter this tenement within 40 minutes and on six days before the warrant was issued he saw nine men go into it and three come out intoxicated; that upon the same day he saw two men go to the door of the tenement, who were met by the plaintiff in error and told by him, in answer to an inquiry for beer from one of them, 'I am sorry boys, I am all sold out;' and that he had smelled a strong odor of distilled liquor coming from the premises at least twice.

Section 25 of the National Prohibition Act (Comp. St. Ann. Supp 1923, Sec. 10138 1/2m) provides that:

'No search warrant shall issue to search any private dwelling (house) occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house.'

It also provides that a search warrant 'may issue as provided in title XI, public Law No. 24 of the Sixty-fifth Congress, approved June 15, 1917,' popularly known as the 'Espionage Act,' which act provides that 'a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched' (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4c), and further provides that 'the affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist' (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4e).

The affidavits filed with the commissioner fully met the requirements of the statutes and the facts disclosed in them were sufficient to authorize the commissioner to find probable cause. A warrant was accordingly issued, authorizing the officers to search the premises of the plaintiff in error and to seize 'intoxicating liquors containing more than one-half of 1 per cent. of alcohol and fit for beverage purposes,' together with certain property designed and intended for the manufacture of intoxicating liquor.

This warrant was served by a federal prohibition agent, who made upon it the following return:

'July 15, 1922. By virtue of the within warrant, I have this day searched the within described premises and have seized therein, and conveyed to a place of safety, to wit, the following described liquors and property designed for the manufacture of intoxicating liquor, to wit:

'550 bottles beer;

'1 bottle capper;

'3 copper boilers;

'1 length rubber hose;

'1 5-gallon tin container 1/2 full of malt.'

The plaintiff in error was indicted for the unlawful possession and unlawful manufacture of 550 pints, more or less, of intoxicating liquor.

Before trial was had on this indictment, the defendant filed a petition for a return of the property seized, accompanied by his affidavit, in which he stated that, in addition to the property...