Legman v. United States

• Citation: 295 F. 474
• Decision Date: 24 January 1924
• Docket Number: 3030.
• Parties: LEGMAN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

295 F. 474

LEGMAN v. UNITED STATES.

No. 3030.

United States Court of Appeals, Third Circuit.

January 24, 1924

Joseph Kraemer, of Newark, N.J. (Kraemer & Siegler, of Newark, N.J of counsel), for plaintiff in error.

Walter D. Van Riper, of Newark, N.J., for the United States.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

The defendant was tried, convicted, and sentenced on an information charging him with maintaining a common nuisance unlawful possession of a five-gallon still, and manufacturing intoxicating liquor containing more than one-half of 1 per centum of alcohol by volume, at No. 346 Warren street Newark, N.J., in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4et seq.).

The testimony establishes that, shortly after 8 o'clock on the evening of January 3, 1923, two police officers, Lozier and Moran, of the city of Newark, entered what appeared to be the kitchen of the house occupied by the defendant and his family. Later they were joined by Officers Cran, Fletcher and Cullen. In this room they discovered a 50-gallon barrel, three-quarters full of mash, and what looked like prune juice or mash smeared over the ceiling, walls, bed, and table. They also found on the premises a copper still, or boiler, with the top blown off. Some of the policemen left, but Cullen remained at the home until about a quarter past 10 o'clock, when Prohibition Agents Moss, Howard, and Fisher entered the house. Moss was the prohibition director of New Jersey, and Howard was the acting head of the prohibition field force. Mrs. Legman, defendant's wife, was in the house when they came, but her husband had been taken to the police station by some of the policemen. The evidence does not disclose why the prohibition agents went there at that time of night, but it is obvious that they had been informed of what was transpiring at the defendant's home and went there in search of evidence to be used against him.

It is nowhere claimed that these agents entered the defendant's private dwelling on invitation of either himself or his wife, or on the authority of a search warrant. Fisher was allowed to testify over objection to what they found in the kitchen, including exactly what the police officers had discovered. He also testified that they 'found considerable wine and considerable moonshine whisky. * * * The most of it was found in the room next to the kitchen. ' The presence of these was unknown to the police officers when the prohibition agents entered the house. These agents took samples of the mash, a bottle of the whisky, and the still, and produced them at the trial.

The defendant made prompt application, before the trial, to the judge of the District Court for the return of the seized property, consisting of the wine, whisky, still, and mash, and for the suppression of evidence relating to them; but he reserved decision, saying that he could control the matter when the evidence was offered at the trial. The application was renewed, before the trial began, on the ground 'that the premises of the defendant Legman was a private dwelling occupied by him as such, and shown by the testimony of the government's witnesses, and that the seizure of the evidence upon which this information was based was made without a search warrant, in violation of the Fourth and Fifth Amendments of the United States Constitution. ' Again, after the testimony had been admitted, the defendant moved 'that the testimony relating to what he (Prohibition Agent Fisher) found in the dwelling house when he got there without the search warrant, his testimony with respect to the mash and the moonshine, be stricken out;' but the court refused, and allowed an exception.

The Fourth Amendment provides that:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.'

The right of security to person and property is not against all searches and seizures, but against unreasonable searches and seizures only. The question, therefore, is: Were the search and seizures unreasonable in this case?

It does not appear that the policemen acted under any claim of federal authority. The Fourth Amendment is not directed to misconduct of state officials. Its limitations are confined to the federal government and its agencies. Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746; Twining v. New Jersey, 211 U.S. 78, 29 Sup.Ct. 14, 53 L.Ed. 97; Weeks v. United States, 232 U.S. 383, 398, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 Sup.Ct. 182, 64 L.Ed. 319. We are not concerned therefore, in this review, with what the policemen did. Our inquiry is directed solely to the conduct of the federal agents. In their search they discovered all that the policemen found, and, at least, wine and whisky in addition. The testimony of Prohibition Agent Fisher covers the entire testimony of the policemen, and also the results of the search made by the prohibition agents alone. We do not, therefore, have any element of the conviction resting exclusively upon the testimony of the policemen, but the conviction on all three counts depends upon either the joint testimony of state and government officials, or upon that of government officials only.

For instance, Legman was convicted in the first count of maintaining 'a common nuisance, in that he did unlawfully, willfully, and knowingly keep on the premises situated at 346 Warren street, Newark, New Jersey, certain intoxicating liquor, to wit, wine and whisky, which was intoxicating liquor. ' But wine and whisky were not found by the policemen in their search. They were found by the prohibition agents alone, in a room not searched by the policemen, and Fisher only testified to finding them. In the second count the defendant was convicted of having a still in his possession, testified to by both the policemen and Prohibition Agent Fisher. The learned trial judge directed a verdict on the third count of the...