Salata v. United States

• Citation: 286 F. 125
• Decision Date: 09 January 1923
• Docket Number: 3714.
• Parties: SALATA v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

286 F. 125

SALATA v. UNITED STATES.

No. 3714.

United States Court of Appeals, Sixth Circuit.

January 9, 1923

Oscar E. Diser, of Youngstown, Ohio (Craver, Diser, Huey & Starrs of Youngstown, Ohio, on the brief), for plaintiff in error.

Berkely W. Henderson, Asst. U.S. Atty., of Cleveland, Ohio.

Before DENISON and DONAHUE, Circuit Judges, and PECK, District Judge.

PER CURIAM.

In the progress of the trial in the District Court of the plaintiff in error, John Salata, upon an indictment charging him with the unlawful possession of distilled liquor fit for beverage purposes, and intended for use in violation of title 2 of the National Prohibition Act (41 Stat. 307), C. F. Beilstein, a federal prohibition agent, located at Youngstown, Ohio, was called as a witness on behalf of the government, and testified in reference to procuring a search warrant, authorizing search of Salata's place of business and residence, as follows:

'The warrant was prepared and issued to me on the blank form issued by the municipal court of the city of Youngstown and Mr. Carney, the clerk of the municipal court of Youngstown, issued the warrant to me. * * * There had been a report came into the office that there was liquor being dispensed in his place of business. I had no knowledge as to who made that report, and I did not have any knowledge other than this report that liquor was being sold there. I had the clerk issue the warrant upon hearsay evidence that liquor was being sold there.'

Thereupon the defendant objected to the admission in evidence of any liquor found and seized by the searching officers upon authority of this search warrant. The objection was overruled and exceptions noted.

It is clear from the uncontradicted testimony of the federal prohibition agent, Beilstein, that this search warrant was not issued by any one having authority to issue the same nor, as required by statute, upon probable cause, supported by affidavit.

The objection to the introduction of this liquor in evidence was overruled by the trial court, for the reason that the objection to the validity of the search warrant and the application for redelivery of the liquor to Salata were not made within a reasonable time after the alleged illegal seizure, and that, therefore, the court was not required to halt the trial to determine the collateral issue of whether evidence, otherwise competent, had been unlawfully acquired. Adams v. New York, 192 U.S. 585, 24 Sup.Ct. 372, 48 L.Ed. 575; Weeks v. U.S., 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; U.S. v. O'Dowd (D.C.) 273 F. 600.

While there does not appear to be any conflict in the authorities in reference to this...