Nordelli v. United States

• Decision Date: 05 March 1928
• Docket Number: No. 5246.,5246.
• Citation: 24 F.2d 665
• Parties: NORDELLI v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

24 F.2d 665 (1928)

NORDELLI v. UNITED STATES.

No. 5246.

Circuit Court of Appeals, Ninth Circuit.

March 5, 1928.

F. H. Bernard, of Tucson, Ariz., and H. G. Butts, King & Wood, and Wm. E. Loose, all of Houston, Tex., for plaintiffs in error.

John B. Wright, U. S. Atty., of Tucson, Ariz.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

Helen Nordelli was convicted on counts 3, 4, and 5 of an information charging her with the possession and sale of intoxicating liquors and the maintenance of a nuisance. Robert Nordelli, her husband, was convicted on an information charging him with a sale of intoxicating liquor. The two cases were consolidated for trial.

The defendants each filed a motion to suppress the evidence obtained in their dwelling house by the prohibition agents Navarre and Cosby, and alleged therein (1) that said agents entered and made their seizures before delivering to the defendants a copy of the search warrant and the affidavits; (2) that the warrant was void for want of a supporting affidavit to show that the dwelling house was being used for the unlawful sale of intoxicating liquor, and for failure to show probable cause for the issuance of the writ, and for failure to show that the property which the warrant directed the officers to seize was in the dwelling house at the time of making the affidavits or at the time of the issuance of the warrant; (3) that the warrant was based solely upon the affidavit of Cosby, and failed to mention the affidavit of Navarre; (4) that the officers' return on the warrant failed to show that a copy of the warrant was left, together with a receipt for the property taken as required by section 12 of title 11, of the Act of June 15, 1917 (18 US CA § 622); (5) that the warrant was not read or exhibited to either of the defendants until after the search and seizure had been made.

The affidavit of Navarre, made on February 21, 1927, for the issuance of the warrant, stated, in substance, that at 9 o'clock p. m., February 20, 1927, he went into the residence of the defendants and purchased from Helen Nordelli a bottle of gin for which he paid $6; that while making said purchase he saw men whose names were unknown to him make like purchases of intoxicating liquor from her, and saw glass containers full of gin; that the liquor which said other men purchased was taken from said containers; and "that said containers and their contents are now on said premises." The affidavit of Cosby, made February 21, 1927, stated that, basing his information on the affidavit of Navarre, the dwelling house of the Nordellis "is being used for the unlawful sale and concealment of intoxicating liquor, and that the said Leonce T. Navarre did on the 20th day of February, 1927, purchase from one Helen Nordelli one bottle of gin, for which he paid the sum of $6." Acting upon these affidavits, the United States commissioner adjudged that probable cause was shown "by said affidavit," and that search warrant issue as prayed for. The warrant directed seizure of all intoxicating liquor, "and any and all apparatus, materials, things, and containers used in the unlawful sale, concealment, or manufacture of intoxicating liquor." The motions to suppress were taken under advisement and were subsequently overruled, to which ruling the defendants noted an exception.

The defendants contend that their verified motions and the uncontradicted affidavits in support thereof import verity, and that the motions should have been sustained. The fact that the agents entered upon the premises and made their seizures before delivering to the defendants a copy of the warrant and the supporting affidavits is not ground for suppressing the evidence. The statute requires that the officer shall give a copy of the warrant and a receipt for the property to the person from whom taken, or in his absence leave it in the place. It does not require that this shall be done before making the seizure. There is no allegation that the statute was not complied with after the seizure was made. Nor do we find that the warrant was void for want of a supporting affidavit alleging that the dwelling house was being used for the sale of intoxicating liquor, or for its failure to show probable cause, or to show that the property which the warrant directed the officers to seize was in the dwelling house at the time of making the affidavits, or at the time of the issuance of the warrant as requisite to authorize a search in the nighttime. Fry v. United States (C. C. A.) 9 F.(2d) 36; Walters v. Commonwealth, 199 Ky. 182, 250 S. W. 839. The affidavit of Navarre states explicitly that the liquor which he saw others purchase on the premises the night before the issuance of the warrant was taken from containers and "that said containers and their contents are now on the said premises." The affidavit of Cosby, based upon Navarre's affidavit, states that on February 20, 1927, Navarre purchased a bottle of gin from Helen Nordelli,...