In re Phoenix Cereal Beverage Co., 331.

• Decision Date: 23 May 1932
• Docket Number: No. 331.,331.
• Citation: 58 F.2d 953
• Parties: In re PHŒNIX CEREAL BEVERAGE CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

58 F.2d 953 (1932)

In re PHŒNIX CEREAL BEVERAGE CO., Inc.

No. 331.

Circuit Court of Appeals, Second Circuit.

May 23, 1932.

George Z. Medalie, U. S. Atty., of New York City (Ulysses S. Grant and Arthur H. Schwartz, Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Louis Halle and Sanford H. Cohen, both of New York City (Milton R. Kroopf and George Cohen, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

The property directed to be returned by the order appealed from was seized by agents of the Department of Justice on a search warrant obtained to search the premises Nos. 441-453 West Twenty-Fifth street, and buildings in the rear thereof, and Nos. 262-266 Tenth avenue, in the city of New York. The search warrant was issued on affidavits of Messrs. Keating and Kelley, both agents of the Department of Justice. The affidavits stated in substance that on July 18, 1931, early in the morning, Keating was in the vicinity of the premises and detected an odor coming therefrom which he said was similar to that given off by brewing mash when used in the manufacture of beer. This he noticed for two hours. He saw steam coming from the premises; also a man working around machinery on the Tenth avenue side of the building. Some men in the vicinity, he said, looked him over very carefully, and he assumed that they were lookouts for the operators of what he concluded to be a brewery. The next day he, with Kelley, kept the premises under observation and again detected the odor of brew coming therefrom. He saw three men whom he again suspected of being lookouts. On the third day he again saw steam coming from the premises. He had been informed by other agents that they had been in the premises about a month before and that they saw machinery suitable for use in brewing beer. An examination was made by him of the Prohibition Administrator's files, and there he learned that for several years before this brewery had manufactured cereal beverage under a government permit.¹ The permit, however, had expired, and, if the plant was operating on the day in question, it was doing so without such authorization. Concededly these were the premises of the appellee; its sign was exhibited on the side of the building. The permit, granted previously, described these premises. It is admitted that machinery in the plant was in open operation and visible from the street; there was no secrecy concerning it. Kelley in his affidavit states that he saw a covered truck leave the premises at 11:05 a. m. on July 20th and proceed to a gasoline station where he had an opportunity to observe it closely. On it was a sign reading, "Lincoln Motor Haulage, 419 E. 67 Street." Through a small opening of about three inches he saw a beer barrel standing on end. He did not see the label nor did he know the contents of the barrel. Moreover, he said he saw several other trucks enter the premises between 11:50 a. m. and 12:35 p. m. on that day.

The warrant authorized a search of the premises and seizure of any intoxicating liquors and apparatus designed for the manufacture of intoxicating liquor. There was no characterization or description in the affidavit of the kind of machinery seen in the brewery; there is no statement of an attempt to look in upon and ascertain what was loaded in the covered truck, Kelley being content with a view through a slit three inches long in the cover, while standing some distance away; nor is there any evidence of a smell or odor that might have come from the contents of the truck. It is incredible to think that he saw more than one barrel, although in his affidavit he said he saw barrels stacked on end in the truck. It is not disputed that the brewery was at one time lawfully operated, and the mash, which is claimed to have been smelled by these agents, is conceded not to have any different odor than that of a lawful beverage, such as might emanate from malt syrup or some other ordinary malt tonic. The record shows that the mash did not contain alcohol.

At the time of the search and seizure, as the agents later testified, the beverage which was apparently stored or manufactured in the premises was dumped in the sewer in large quantities, and one of the agents recaptured some of it in a milk bottle, tasted it, and said that it was beer. Later it was found that it contained more than the lawful alcoholic content.

On the application by the appellee to vacate the search warrant, the commissioner pointed out that the principal facts alleged showed that the agent Keating smelled the odor of mash when in the process of brewing beer; that he observed steam coming from the premises and from time to time saw lights and engines running in the building and a man walking around the same, whom he judged to be a lookout; that the premises had been used as a brewery; and concluded that it was now being used without a permit to manufacture beer. On the evidence taken before him, the commissioner found that the mash usually used in the manufacture of beer is nonalcoholic and from it are manufactured various lawful products; that, in the absence of proof, therefore, that this mash was fermenting, or that it was actually intended for use in manufacturing beer, the conclusion that it was so intended must be disregarded. He said: "It thus appears that taken singly or collectively, there were no facts before me upon which the search warrant should have issued on the date on which it so issued, and the motion to vacate must therefore be granted."

The District Judge reviewing the action of the commissioner stated: "As far as I can see, these gentlemen smelled a peculiar odor, saw some men loafing in the neighborhood, saw a wagon drive away with a hole in the rear of it, through which they saw a beer barrel; they saw steam arising from a manufacturing plant. It doesn't seem to me that is probable cause for the issuance of a search warrant, and I see no reason to disturb the ruling of the Commissioner."

He thereupon overruled the government's motion and affirmed the vacation of the search warrant by the commissioner. All the property seized was returned to the appellee after this action in the court below.

There was a full hearing before the District Court with ample opportunity to give facts to justify the claim of probable cause for the issuance of the warrant. No hard and fast rule prevails as to determining the existence of probable cause upon which to grant a search warrant.

In Dumbra v. United States, 268 U. S. 435, 45 S. Ct. 546, 549, 69 L. Ed. 1032, the court said: "In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched, and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant."

In Taylor v. United States, 52 S. Ct. 466, 467, 76 L. Ed. ___, decided by the Supreme Court May 2, 1932, the facts were as stated in the opinion, that in the nighttime "a squad (six or more) of prohibition agents while returning to Baltimore city discussed premises 5100 Curtis avenue, of which there had been complaints `over a period of about a year.' Having decided to investigate they went at once to the garage at that address, arriving there about 2:30 a. m. The garage — a small metal building — is on the corner of a city lot and adjacent to the dwelling in which petitioner Taylor resided. The two houses are parts of the same premises. As the agents approached the garage, they got the odor of whisky coming from within. Aided by a searchlight, they looked through a small opening and saw many cardboard cases which they thought probably contained jars of liquor. Thereupon they broke the fastening upon a door, entered, and found 122 cases of whisky. No one was within the place, and there was no reason to think otherwise. While the search progressed, Taylor came from his house and was put under arrest. The search and seizure were undertaken with the hope of securing evidence upon which to indict and convict him."

A considerable number of complaints had been made against the premises, and the agents had not obtained a search warrant. The court said: "We think, in any view, the action of the agents was inexcusable and the seizure unreasonable. The evidence was obtained unlawfully and should have been suppressed. See Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; United States v. Lefkowitz and Paris, 285 U. S. 452, 52 S. Ct. 420, 76 L. Ed. ___, decided April 11, 1932, and cases there cited. Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crimes; but its presence alone does not strip the owner of a building of constitutional guaranties * * * against unreasonable search."

The Fourth Amendment prohibits unreasonable searches, and a search warrant does not make a search reasonable nor does the lack of one make it unreasonable. But, if the facts are insufficient to justify a search, a search warrant will not aid the officers. Insufficient facts contained in the affidavits do not make a search warrant valid. Under the circumstances of the Taylor Case, if the facts indicated probable cause, it would not have been necessary to obtain a search warrant. The search and seizure in that case were found to be unreasonable. The rule as applied there has similar application to the facts in the instant case. Here there is evidence which justifies the claim that the odor testified to by the agents was similar to the odor that...