In re Oryell
| Decision Date | 31 August 1928 |
| Citation | 28 F.2d 639 |
| Parties | In re ORYELL. |
| Court | U.S. District Court — Western District of New York |
Latona & Carlo, of Buffalo, N. Y., for petitioner.
Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Ralph A. Lehr, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for the United States.
Pursuant to a search warrant issued by a United States Commissioner, the searching officer, a customs inspector, entered the private home of petitioner and seized 128 cases of liquors of various kinds, the containers concededly being labeled, "Liquor Control Board of Ontario" — a liquor board that was established in Ontario about April 5, 1927, more than eight years after the passage of the Volstead Act. The search warrant, after its execution, and after seizure of the contraband, was traversed, and the same commissioner who issued the warrant, held it to have been illegal for failure to disclose probable cause for its issuance. It having been held invalid, the evidence of the custody of the liquors seized was suppressed and the accused discharged. No appeal or review of the decision was taken, and no proceeding to libel the intoxicating liquors has been commenced, nor is there any intention on the part of the government to institute such a proceeding.
The petitioner now asks, as owner and possessor of the liquor at time of seizure, which he swears was lawfully acquired, for its return on the ground that his residence was unlawfully invaded. Concededly there was no sale by him or any one residing at the place where the liquor was found. The petitioner was not accused of violation of the customs laws. He was charged with violation of the National Prohibition Act (27 USCA), although the search warrant states that the liquor was brought into the United States without paying the duties, in contravention of the customs laws. The reason for changing the nature of the accusation does not appear. The right of restoration must be determined under section 25 of title 2 of the National Prohibition Act (27 USCA § 39), which declares that property seized "shall be subject to such disposition as the court may make thereof."
In opposition to the return of the liquor to the petitioner, the government contends that it manifestly was not lawfully acquired or possessed, since the labels on the containers show the contrary. Inasmuch, however, as it is admitted that the search warrant was defective and invalid, I am of the opinion that the liquor must be returned to its...
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Hall v. Warden, Maryland Penitentiary
...690, 694-695 (1940), opinion by Associate Justice Vinson, later Chief Justice of the Supreme Court of the United States; In re Oryell, 28 F.2d 639 (D.C.W.D.N.Y.1928), and United States v. Setaro, 37 F.2d 134 3. DID THE STATE INTRODUCE EVIDENCE AT THE TRIAL IN 1959 WHICH WAS THE PRODUCT OF A......
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Nueslein v. District of Columbia
...that the liquor had, a short time before, been brought to his home by one Ed. Mang, who had rented a room in his house." In re Oryell, D. C.N.Y., 28 F.2d 639, 640. See Haynes v. State, 110 Tex.Cr.R. 553, 9 S.W.2d 3 "But there is no such an essential connection between an illegal search — wh......
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Brinegar v. United States
...v. United States, 10 Cir., 159 F.2d 85. 1 In addition to the Nueslein case, see also United States v. Setaro, D.C., 37 F.2d 134; In re Oryell, D.C., 28 F.2d 639; In re Fried, 2 Cir., 161 F.2d 2 Nueslein v. District of Columbia, App. D.C., 115 F.2d 690; Gibson v. United States, App.D.C., 149......
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