In re No. 191 Front Street, 117.

• Decision Date: 19 December 1924
• Docket Number: No. 117.,117.
• Citation: 5 F.2d 282
• Parties: In re NO. 191 FRONT STREET, BOROUGH OF MANHATTAN, CITY OF NEW YORK. KIRVIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

5 F.2d 282 (1924)

In re NO. 191 FRONT STREET, BOROUGH OF MANHATTAN, CITY OF NEW YORK KIRVIN v. UNITED STATES.

No. 117.

Circuit Court of Appeals, Second Circuit.

December 19, 1924.

Sanford H. Cohen, of New York City (George Cohen, of New York City, on the brief), for plaintiff in error.

William Hayward, U. S. Atty., of New York City (Elmer H. Lemon, Sp. Asst. U. S. Atty., of Middletown, N. Y., of counsel), for the United States.

Before ROGERS and MANTON, Circuit Judges, and LEARNED HAND, District Judge.

MANTON, Circuit Judge.

The search warrant here considered was issued upon two affidavits, on the 18th of December, 1923, by one of the United States commissioners for the Southern district of New York. One affidavit alleges that one of the affiants visited the premises in question, and had a conversation with the plaintiff in error, and inquired if he would sell him a gallon of alcohol, which he did; that on the following day, December 18, 1923, he had a conversation with a brother of the plaintiff in error, asked for a gallon of alcohol, and carried away with him an empty can, in which he obtained the alcohol, paying $5.50 therefor. This affidavit is corroborated by the second affidavit, made by an agent of the United States government, saying that he saw the first affiant enter the premises with a can and come out with the alcohol, which was turned over to the government agent. The affidavit set forth that the can had a quantity of alcoholic content of intoxicating liquors which contained more than one-half of 1 per cent. alcohol by volume and was fit for beverage purposes. It says that a search of the prohibition director's office failed to find any permit for the possession of liquors on these premises, and it then alleges that this affidavit is "made to procure a search warrant to search said premises No. 191 Front street, borough of Manhattan, city of New York, including any safe, or desk, closet, container, receptacle, storeroom, basement, or subcellar, or rooms connected or used in connection with said building, and to seize all intoxicating liquors found therein, together with any books, papers, records, or documents pertaining to the sale, possession, or transportation of intoxicating liquors."

The search warrant recites that the same is issued on the affidavits in question and "that certain intoxicating liquors (and records) containing more than ½ of 1 per cent. of alcohol by volume and fit for use for beverage purposes is unlawfully held and possessed in the entire five-story brick building situated at No. 191 Front street, borough of Manhattan, Southern district of New York." It directs the officers to whom the warrant was issued to enter the premises and search diligently "for said liquor and records," and then directs the making of a return after any seizure under said warrant. A seizure was made, and resulted in obtaining a quantity of liquor, and also a large list of books, papers, and records, consisting of memoranda, telegrams, invoices, receipts, and various letters. A motion was made for the return of the records and liquors before one of the United States commissioners of the Southern district of New York, and to vacate and set aside the search warrant, for the reason that the affidavit upon which it was based did not set forth facts showing probable cause for the issuance thereof; that it did not name and describe the person and particularly describe the property and place to be searched; that it was illegal, because it required the seizure of records without any supporting affidavit therefor, and without showing and naming the record desired, or that they were illegally used, and that no provision of law permitted the seizure of the records; that such seizure as was made was in violation of the Fourth and Fifth Amendments of the Constitution; that it was not issued in accordance with the provisions of Espionage Act, tit. 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212i, 10496¼a-10496¼v).

On hearing this motion, the commissioner took testimony and rendered a decision sustaining the motion. An application was then made to the District Judge for an order directing a return of the books, papers, and memoranda, and all other documents thus seized, and to suppress any information received therefrom. The defendant in error opposed upon the ground that it desired the records as evidence upon the trial of a conspiracy charge. The court reversed the order of the commissioner, reinstated the search warrant, and ordered the government to retain the property seized as evidence against the alleged conspirators. It is the order thereon that the plaintiff in error seeks to review by this writ. It is now sought to obtain a release of the records thus seized, but not the liquor.

The National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) provides for the issuance of a search warrant under the Espionage Act of June 15, 1917 (40 Stat. 228 et seq.), in so far as it is applicable to the National Prohibition Act, by a judge of the United States District Court or by a United States commissioner wherein the property sought is located. Section 3 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." Provision is made by section 15 for the examination of witnesses under oath, and requiring their affidavits or depositions to be reduced to writing and subscribed by the persons making them. It provides for the issuance of the warrant and its delivery to a person to execute the same, and the delivery of a copy and receipt when the property is taken, and for the making of a return thereon. Section 16 provides that, if the property or liquor taken is not the same as that described in the warrant, or where there is no probable cause for believing the existence of the grounds on which the warrant was issued, the judge or commissioner must cause it to be restored to the person from whom it was taken. If it appears that the property or paper taken is the same as described in the warrant, and there is probable cause for believing the existence of the grounds, then the judge or commissioner shall order the same retained in the custody of the person seizing it, or to be otherwise disposed of according to law. Title 2, § 25, of the National Prohibition Act provides:

"It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in title XI of public law numbered 24 of the Sixty-Fifth Congr...