Lipschutz v. Davis

• Decision Date: 19 December 1922
• Docket Number: 9836.
• Citation: 288 F. 974
• Parties: LIPSCHUTZ v.. DAVIS, Supervising Prohibition Agent.
• Court: U.S. District Court — Eastern District of Pennsylvania

288 F. 974

LIPSCHUTZ v.. DAVIS, Supervising Prohibition Agent.

No. 9836.

United States District Court, E.D. Pennsylvania.

December 19, 1922

THOMPSON District Judge.

Under a search warrant issued by a United States commissioner, the premises of the petitioner at 226 South street, Philadelphia were searched and a large quantity of liquors, wines and cordials, papers letters, and documents were seized. The main contentions in support of the petition are that the search warrant does not particularly describe the things to be seized, and that the affidavit does not set forth facts tending to establish probable cause for believing that proper grounds for the issuance of the search warrant existed. The search warrant purported to be issued under the authority of title 2, Sec. 25, of the National Prohibition Act (41 Stat 305), authorizing search warrants to be issued under the Espionage Act of June 15, 1917. The description of the things to be seized is as follows:

'Gin, wine, cordials, whisky, brandies, and other intoxicating liquors as defined in the National Prohibition Act, books, records, papers, documents, and other papers, goods, wares, merchandise, and objects used by the said I. L. lipschutz in and about the whole-sale liquor business conducted by him on the aforesaid premises.'

If, under section 5 of title 11 of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4e), sufficient facts are set out to establish ground for probable cause under the Fourth Amendment to the Constitution, the generic description of the intoxicating liquors, namely gin, wine, cordials, whisky, brandies, is, I think, sufficient, without placing upon the government officers the probably impossible burden of describing the quantity, the nature of the packages, and the brands of the liquors to be seized. It is apparent, however, that there is not sufficient particularity in the description of the documentary subjects of seizure. In enforcing the constitutional inviolability of the individual's property and goods from seizure, it is obviously more important, in protecting him from being a witness against himself, to require a specific description of books, records, and papers, which are usually of value only to the owner and cannot be replaced than in the case of tangible property of intrinsic value.

The only description of the books to be seized is that they are alleged to be 'used by the said I. L. Lipschutz in and about the wholesale liquor business conducted by him on the aforesaid premises. ' This is no description at all, but leaves the determination of what is to be seized entirely to the judgment and discretion of the seizing officer to be exercised after the entry upon the premises and while the seizure is being made. Such language cannot be construed as 'particularly describing' the things to be seized and is not helped by the reference in the statement of facts tending to establish probable cause to the use of false and fictitious government permits. The fact that the...