McGrew v. United States

• Decision Date: 19 June 1922
• Docket Number: 3840.
• Citation: 281 F. 809
• Parties: McGREW et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

281 F. 809

McGREW et al. v. UNITED STATES.

No. 3840.

United States Court of Appeals, Ninth Circuit.

June 19, 1922

J. A Kavaney, of Ft. Benton, Mont., for plaintiffs in error.

John L Slattery, U.S. Atty., and Ronald Higgins and W. H. Meigs Asst. U.S. Attys., all of Helena, Mont.

Before MORROW and HUNT, Circuit Judges, and BEAN, District Judge.

BEAN District Judge.

The plaintiffs in error were tried and convicted in the District Court of Montana for a violation of the National Prohibition Act (41 Stat. 305), and have appealed.

They were arrested without a warrant on November 10, 1921, by the sheriff of Chouteau county, Mont., and his deputy, while in the act of transporting in an automobile a quantity of intoxicating liquor. The liquor and automobile were taken possession of by the arresting officers. On the same day an information was lodged in the state court, charging them with illegally possessing and transporting intoxicating liquors whereupon they filed a petition for the return of the property seized by the sheriff and the suppression of the same as evidence, on the ground that it had been illegally seized. On December 12, 1921, the information was dismissed on motion of the county attorney, and the property seized by the sheriff ordered returned to the defendants; but before this was done it was taken possession of by a federal prohibition officer and the defendants rearrested, and that without a warrant.

On December 15, 1921, an information was filed in the District Court by the assistant United States attorney, charging the defendants with illegally possessing and transporting intoxicating liquors, in violation of the National Prohibition Act. They thereupon filed a petition for an order requiring the prohibition enforcement officer to return to them the properties taken by him from the sheriff and suppressing the same as evidence in the cause. This petition was denied, and the defendants tried and convicted.

The evidence on the trial consisted of the testimony of the arresting officers and the liquor seized, or a part thereof. By appropriate motions, objections, and exceptions, the defendants have preserved the question as to the competency and admissibility of such evidence. It is contended that the constitutional rights of the defendants were violated by the seizure of the property and the subsequent taking possession thereof by the federal prohibition officer, in violation of the Fourth and Fifth Amendments to the Constitution of the United States.

The origin and purpose of these amendments have been so thoroughly considered by the Supreme Court in numerous cases that it would be superfluous to attempt to add anything to the discussion. Burdeau v. McDowell (decided June 1, 1921) 256 U.S. 465, 41 Sup.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159; Gould v. U.S. (decided Feb. 28, 1921) 255 U.S. 298, 41 Sup.Ct. 261, 65 L.Ed. 647; Silverthorne Lbr. Co. et al. v. U.S., 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319; Perlman v. U.S., 247 U.S. 7, 38 Sup.Ct. 417, 62 L.Ed. 950; Johnson v. U.S., 228 U.S. 457, 33 Sup.Ct. 572, 57 L.Ed. 919, 47 L.R.A. (N.S.) 263; Weeks v. U.S., 232 U.S. 383, 34 Sup. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177.

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