In re Quirk, 4500.
| Decision Date | 03 September 1924 |
| Docket Number | No. 4500.,4500. |
| Citation | 1 F.2d 484 |
| Parties | In re QUIRK. |
| Court | U.S. District Court — Western District of New York |
Hugh J. O'Brien, of Rochester, N. Y., for petitioner.
John S. McGovern, Asst. U. S. Atty., of Buffalo, N. Y., for the United States.
When this motion for suppression of evidence first came before me, the main ground urged for vacating the search warrant was the insufficiency of the description of the premises searched by the federal prohibition agents — that the dwelling house searched was not connected with the brick building used as a saloon by defendant at the corner of Platt and Kent streets, Rochester, in such a way as to bring it within the exception of section 25 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½m). The motion was denied.
Subsequently a petition for rehearing was filed, which alleged that during the progress of the search and seizure the agents destroyed a large quantity of liquor stored in defendant's dwelling house at the rear of the saloon but not connected therewith, in disregard of the commands contained in the warrant, and in violation of sections 25 and 26 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, §§ 10138½m, 10138½mm). The search warrant in terms, and with particularity, authorized a search of the premises at "the southwest corner of Platt and Kent streets, in the city of Rochester, N. Y., which consists of a three-story brick building, containing a saloon or café, living or other room upstairs, cellar and other room connected therewith, and a small frame building connected with and forming a part of said brick building, where said liquor is held and possessed. * * *"
It is again urged that the affidavit upon which the search warrant issued did not disclose probable cause for its issuance, and did not describe the premises and place to be searched as required by the Constitution (Amend. art. 4) and Espionage Act, tit. 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496¼a-10496¼v, 10212i), and that the dwelling searched was not prima facie shown to be used for the sale of intoxicating liquor, or in part for a business purpose, such as a store, shop, saloon, restaurant, or boarding house. The testimony relating to the brick saloon and frame building at the rear thereof and connected therewith is admittedly contradictory; the federal prohibition agents who executed the search warrant testifying that there is an entrance directly from the saloon part to the frame building and cellar part, thus warranting the inference that the dwelling house, in which large quantities of liquor was stored, was used to supply the saloon part, while the testimony on the part of the defendant was to the effect that the said building was wholly separated from the saloon and constituted no part thereof, and was used by defendant for dwelling only. In view of the indefiniteness and contradictory character of the testimony on this point, the question may be reserved to the trial.
The principal point presented is whether the prohibition officers conducting the search exceeded their powers in summarily destroying part of the liquor seized in the dwelling house, consisting of a barrel of whisky, a barrel of wine, three gallons of gin, and a barrel of alcohol, during the execution of the search warrant, and whether such acts by them constituted a trespass, requiring the suppression of the evidence. It will be assumed that the search warrant was valid, and that probable cause existed for its issuance by the United States commissioner.
In U. S. v. Cooper (D. C.) 295 Fed. 709, upon which defendant relies, it was clearly held that prohibition agents searching premises described in a search warrant had no right to destroy intoxicating liquor found which was fit for beverage purposes, and their misconduct in this particular rendered the search warrant illegal, and evidence secured by them could not be used at the trial against the accused. I am unable to agree with this holding. It is true that, where authority to enter upon the premises of another is given by law and is subsequently abused, the party becomes a trespasser ab initio. It is so held in the early case of Allen v. Crofoot, 5 Wend. (N. Y.) 507, and numerous cases have since accepted this principle, but I am disinclined to rule that this doctrine, because of the alleged wrongful acts of the officers, requires that the evidence must be suppressed.
The Circuit Court of Appeals for the First Circuit, in Hurley v. U. S., 300 Fed. 75, had before it a similar question for decision. In that case it appeared that in addition to the property seized as shown by the return the prohibition agent executing the search warrant found a quantity of beer in process of fermentation which he immediately destroyed. The learned court said: ...
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