In re Herter

• Decision Date: 17 June 1929
• Docket Number: No. 5752.,5752.
• Citation: 33 F.2d 400
• Parties: In re HERTER. HERTER v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

33 F.2d 400 (1929)

In re HERTER HERTER v. UNITED STATES et al.

No. 5752.

Circuit Court of Appeals, Ninth Circuit.

June 17, 1929.

Lester H. Loble and Hugh R. Adair, both of Helena, Mont., for appellant.

Wellington D. Rankin, U. S. Atty., and Howard A. Johnson and Arthur P. Acher, Asst. U. S. Attys., all of Helena, Mont., for appellees.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

On August 1, 1928, appellant filed with the clerk of the court below a petition for the return to him of certain articles of personal property which he alleged had been unlawfully taken from his possession, in his home, by prohibition agents acting under the authority of a search warrant issued by a United States commissioner of the district. The property consisted of 456 quarts of beer, 3 quarts of wine, ¼ pint of whisky, and divers vessels or containers, materials, and other small articles which are susceptible to use in the manufacture, possession, or sale of intoxicating liquors, but are more or less commonly used for legitimate purposes, such as a copper boiler, copper buckets, steins, etc. No proceedings, either civil or criminal, were pending when the petition was filed based upon or relating to his possession or use thereof, nor had one ever been commenced, and the property was, and at all times subsequently to its seizure had been, in the custody of one Jackson, prohibition director for Montana. With his petition appellant exhibited copies of the application for the search warrant with supporting affidavits, the search warrant, and the return of the officers executing the same. From these exhibits it appears that the warrant was issued on May 17, 1928, was executed two days later, and the articles seized were as described in the petition. The petitioner also shows that some time in the same month the commissioner returned and filed in the court below the original warrant together with the pertinent record as required by law. 18 USCA § 627. The petition was verified by the petitioner and was supported by his affidavit somewhat more elaborately setting forth what he contends to be the facts and challenging some of the statements in the two affidavits supporting the application for the search warrant. Without further evidence or showing, either upon the part of the petitioner or the government officers, the matter was submitted to the court below on January 7, 1929, and on February 14, 1929, the court entered an order denying the petition. From this order the petitioner appeals.

The first question, one which was not raised in or considered by the court below, is whether upon the facts stated the court had the power or jurisdiction to entertain the petition. Though as prohibition director Jackson is not an officer of the court, the question presents an aspect materially different from that recently considered by us in Applybe and Snyder v. United States (C. C. A. No. 5779, decision filed May 27, 1929). 32 F.(2d) 873. There the property had been seized and was held without authority of a search warrant or other judicial process, and we held that under such circumstances an independent, summary proceeding, such as this, can be maintained only where the property is in the custody or under the control of a court officer. But, as recognized in the Cogen Case, 278 U. S. 221, 228, 49 S. Ct. 118, 73 L. Ed. ___, where property has been seized under and is held by virtue of a search warrant, the courts are invested with and are under the duty to exercise the power appropriately to dispose of it. By section 25 of title 2 of the National Prohibition Act (41 Stat. 315, 27 USCA § 39), search warrants are authorized, with the provision that: "Such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor and all property designed for the unlawful manufacture of liquor, shall be destroyed, unless the court shall otherwise order." In entertaining the petition, therefore, we are of the opinion the court was in the exercise of the jurisdiction thus conferred.

No exception was or is taken to the form of the warrant, or the sufficiency thereof upon its face, or to the manner of its execution or its return. Nor was any proceeding taken under section 625 (18 USCA), which provides that, "if the grounds on which the warrant was issued be controverted," the judge or commissioner must take testimony in relation thereof, but appellant contends that the warrant was void, and that therefore he is entitled to a return of the property. The affidavits supporting the application for the search warrant were made by Prohibition Agents Adams and Dibble. Referring to the appellant's dwelling house in Helena, Montana, Adams' affidavit was to the effect that he...