Levine v. United States, 31.
| Decision Date | 03 November 1943 |
| Docket Number | No. 31.,31. |
| Citation | 138 F.2d 627 |
| Parties | LEVINE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Morris E. Packer, of Brooklyn, N. Y., for appellant.
Harold M. Kennedy, U. S. Atty., and Vine H. Smith, Asst. U. S. Atty., both of Brooklyn, N. Y. (Mario Pittoni, Asst. U. S. Atty., of Lynbrook, N. Y., of counsel), for respondent.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
The appellant was unsuccessful in his attempt to have suppressed evidence consisting of five 5-gallon cans of alcohol which had been seized during the search of a garage he rented. He first proceeded by notice of motion supported by an affidavit. The government filed an opposing affidavit; and the judge, then being unable to reach a decision, set the matter down for hearing. The parties thereafter appeared pursuant to such order and the government called three investigators of the Alcohol Tax Unit who testified. The attorney for the appellant cross-examined them but introduced no evidence. The judge then denied the motion and this appeal was taken.
There was substantial evidence to show that the investigators had received confidential information from a source which had been proved reliable upon other occasions that Garage No. 29 near Livonia Ave., at Strauss St., in Brooklyn, N. Y., was being "used by Joe Levine as his alcohol drop." They also had from the same source information that a "shipment of alcohol was expected that morning"; meaning the morning when the search was made that turned up the evidence now sought to be suppressed.
It was further shown without contradiction that the officers had been investigating the appellant for about three weeks and that Levine was acquainted with one, if not more, of them and knew that he was a federal investigator. After being informed as already stated, the investigators took up positions where they could observe the garage and the approaches to it. It proved to be a stall, suitable for only one car in a building with other such stalls, which was part of premises known as the G. K. Service Station. After waiting until about eleven o'clock in the morning the officers saw a man of whom they had knowledge which made them suspicious drive up in a Ford coach and back it into the garage stall No. 29. Just then the appellant came walking up Strauss St., toward the garage and was seen to go into it.
The officers now went nearer the garage, and when they had reached it or nearly so the appellant came out leaving one of the doors about two feet ajar. When he saw the officers approaching he started to run but was caught and put under arrest at once. He was asked what he was doing there and replied, "I have nothing to do with that garage." One of the officers thereupon went into the garage and arrested the driver of the car, Joseph Curcia, who was standing near a carton containing two 5-gallon cans of...
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