In re Lobosco

• Decision Date: 26 March 1926
• Docket Number: No. 12070.,12070.
• Citation: 11 F.2d 892
• Parties: In re LOBOSCO.
• Court: U.S. District Court — Western District of Pennsylvania

11 F.2d 892 (1926)

In re LOBOSCO.

No. 12070.

District Court, E. D. Pennsylvania.

March 26, 1926.

David S. Malis, of Philadelphia, Pa., for plaintiff.

George W. Coles, U. S. Atty., and Bertram I. De Young, Asst. U. S. Atty., both of Philadelphia, Pa., for the United States.

THOMPSON, District Judge.

From the petition and answer, and admissions at the hearing, the following facts appear:

The petitioner is a druggist holding a permit to use alcohol in his business, conducted at a drug store in the city of Philadelphia. On February 25, 1926, several prohibition agents entered the defendant's store to make an inspection of the liquor on hand and his records required to be kept by section 34 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½u). The prohibition agents made themselves known as such, one of them, Hugh Hays, Jr., exhibiting his badge, and, while the petitioner was engaged in conversation with some of the agents in the upper part of the building, Hays, who remained in the store, went back into an inclosure marked "Private," separating the drug store from the storeroom used for the storing of drugs, made a search of that part of the premises, and found, seized, and took possession of a pot containing about one gallon of liquid. He took a sample and found it to contain upward of 37 per cent. of alcohol artificially colored. When Lobosco returned from the upper part of the premises, Hays inquired where he obtained the liquid. Lobosco stated it had been given to him by a friend, and that he (Lobosco) was going to take it to a party that evening. Hays then seized the alcohol, obtained two bottles from Lobosco, poured the alcohol into the bottles, and took it away with him. Upon the strength of the evidence, consisting of the liquor so seized, he swore to an affidavit upon which a warrant issued charging Lobosco with rectifying distilled spirits without payment of the government tax. Hays had not obtained a warrant authorizing him to search the premises and seize any articles found there.

The records of the petitioner as a permittee were, under section 34, subject to inspection at any reasonable hour. Under the authority of the Commissioner to make regulations for carrying out the provisions of the National Prohibition Act, the right of inspection of the records of a permittee necessarily carries with it the right to inspect the supply of liquor obtained under the permit, in order to determine whether liquor lawfully obtained has been disposed of unlawfully. Otherwise the inspection of records would be a useless formality. It does not appear, however, that the records of the defendant showed any unlawful disposition of alcohol possessed by him under his permit, nor that there was any irregularity in the records.

It is contended on the part of the government that the agents, being lawfully upon the premises under a right to inspect the petitioner's records and his stock of alcohol obtained under his permit, could lawfully seize any article, the possession of which showed an offense committed in the presence of the agent. But Congress, in conferring power to inspect the records of a permittee, did not substitute the right of inspection of what is obtained under a permit, for a search warrant, where search and seizure without a warrant is unreasonable, in violation of the rights of the people under the Fourth Amendment.

The question, then, is whether the search by Hays within the inclosure marked "Private," and the seizure of what he found upon the search, was an unreasonable search and seizure. It has not been the disposition of the courts to extend the right of search under the pretext of the searching officer of lawful entry and presence upon the premises. The part of the premises commercially used as a store may be lawfully entered without a search...