Shore v. United States

• Citation: 49 F.2d 519,60 App. DC 137
• Decision Date: 06 April 1931
• Docket Number: No. 5216.,5216.
• Parties: SHORE et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

60 App. DC 137, 49 F.2d 519 (1931)

SHORE et al. v. UNITED STATES.

No. 5216.

Court of Appeals of District of Columbia.

Argued March 3, 1931.

Decided April 6, 1931.

Rehearing Denied April 25, 1931.

Wm. E. Leahy and James F. Reilly, both of Washington, D. C., for appellants.

Leo A. Rover and Harold W. Orcutt, both of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ and GRONER, Associate Justices.

GRONER, Associate Justice.

The United States attorney on the 8th of May, 1929, filed a bill of complaint on the equity side of the Supreme Court of the District of Columbia against appellants, whom we shall hereafter call defendants, charging them, and one Mae Money, pursuant to sections 22 and 23 of title 2 of the National Prohibition Act (27 USCA §§ 34, 35), with maintaining a public and common nuisance in the premises No. 1223 New York Avenue N. W., Washington, D. C., and praying for the abatement thereof, and for a temporary, and at the final hearing a permanent, injunction restraining defendants from moving, storing, or having possession of contraband liquor thereon. The lower court issued an injunction pendente lite. In November, 1929, the United States attorney filed an information in contempt alleging that, after the issuance of the order and the service thereof, the defendants Frank Shore and Mae Money violated its terms, in that at various times, while it was in full force and effect, they had kept and possessed, on the premises named, large quantities of intoxicating liquors. The defendants, respectively, answered the bill of complaint, and filed motions to quash certain search warrants issued January 28, May 3, and November 16, 1929, and also to have returned certain quantities of liquor seized as the result of the issuance of the warrants, and to suppress the use of the same in evidence. There was a hearing in February, 1930, at which evidence was taken, and, as a result of which, the court entered a final decree padlocking the premises, continuing the injunction as against Shore and Hall, and adjudging defendant Shore in contempt, and committing him to prison for the period of one year.

The main grounds assigned as error go to the question of the validity and legality of the several search warrants, to the failure of the court to suppress the evidence, and to the refusal of the court to compel a government witness on cross-examination to disclose the source of confidential information which he had stated on direct examination he had as to the conduct of defendant Shore in selling liquor on the premises. The point made against the search warrants is that they failed particularly to describe the place that was to be searched, and were issued without probable cause.

The premises to be searched, as described in the three warrants, were "the premises of one Frank Shore, said premises being described as 1223 New York Avenue Northwest and being within the District of Columbia," and it is now insisted that this was not sufficient, because the premises thus described consisted, not only of defendant Shore's garage and tire shop, but also of a small lunch room occupied by some one else, but which also bore the same number on a separate front door or entrance. Some further point was made of the fact that the third story of the building was occupied as to two of the rooms, one by Shore and another by the defendant Money. It is admitted on the record that the defendant Shore owned the whole building, and it satisfactorily appears that neither the lunchroom nor the upstairs was searched.

We think the description in the warrant sufficiently identified the premises to be searched. The house which the warrant ordered searched was the property of the defendant Frank Shore, and was identified as No. 1223 New York Avenue Northwest, in the city of Washington. The house searched was the house of Frank Shore at the designated number in the designated street. To say now, as we are asked to say, that the warrant is defective because there was on the premises a lunchroom with the same street number, but which it was not intended to search and which was not searched, would be to indulge in behalf of an admitted lawbreaker those protective provisions of the amendment intended to be invoked only in behalf of one whose rights of person or property had been invaded contrary to its provisions. We think the defendant Shore cannot complain if, as the Supreme Court puts it, the description in the warrant is such that the officer can with reasonable effort ascertain and identify the place intended to be searched. Steele v. U. S., 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757. As we have already seen, the warrant in question declared that the place to be searched was the premises of Frank Shore at a given number in a given street, all of which correctly described Shore's place. That there happened to be a small restaurant in a corner of the same building, wholly separated from the balance of the premises and occupied and used by another, though similarly numbered, would not, we think, have created such confusion as would have led astray any officer in the exercise of reasonable care, but since, as we have also seen, the restaurant was not searched, even if it be conceded that the warrant gave the right of search, its inclusion in no wise prejudiced defendants, or violated their constitutional rights, and hence they may not complain. Chicco v. U. S. (C. C. A.) 284 F. 434; Shields v. U. S., 58 App. D. C. 215, 26 F.(2d) 993; U. S. v. Silverthorne (D. C.) 265 F. 853.

But it is also insisted that, even if the several warrants were sufficient in describing the premises, they were invalid because issued without probable cause. "Probable cause," as defined by the Supreme Court, is "reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged." Dumbra v. U. S., 268 U. S. at page 441, 45 S. Ct. 546, 548, 69 L. Ed. 1032.

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