United States v. De Bousi

• Citation: 32 F.2d 902
• Decision Date: 20 May 1929
• Docket Number: No. 8749.,8749.
• Parties: UNITED STATES v. DE BOUSI.
• Court: U.S. District Court — District of Massachusetts

32 F.2d 902 (1929)

UNITED STATES v. DE BOUSI.

No. 8749.

District Court, D. Massachusetts.

May 20, 1929.

Frederick H. Tarr, U. S. Atty., and Elihu D. Stone, Asst. U. S. Atty., both of Boston, Mass.

Nunziato Fusaro and Fusaro & Fusaro, all of Worcester, Mass., for defendant.

BREWSTER, District Judge.

This is a motion to suppress evidence obtained by state and federal officials who searched a private dwelling house of one Ferro.

The essential facts are that without any search warrant state offials, acting at the instigation of federal prohibition agents and in co-operation with them, proceeded to a private dwelling house of one Ferro. Upon search of the premises they found a still and a quantity of intoxicating liquors, which were seized. The defendant was on the premises and claimed to be the owner of the still and of the liquors. No arrest was made at the time of the search. For the purposes of the motion, it must be assumed that he was on the premises with the consent of the owner, and that he asserted a right to occupy the premises and dominion over, and ownership in, the seized property.

A search of a dwelling house without a warrant cannot now be upheld under the circumstances here disclosed. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; McGuire v. United States, 273 U. S. 95, 47 S. Ct. 259, 71 L. Ed. 556.

An unlawful search and seizure by state officials co-operating with federal agents violates the Fourth Amendment to the Constitution and generally renders the evidence obtained as a result of such unlawful search and seizure inadmissible. Byars v. United States, 273 U. S. 28, 34, 47 S. Ct. 248, 71 L. Ed. 520; Gambino v. United States, 275 U. S. 310, 314, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381.

This much the government concedes, but contends that the defendant, not being the owner of the private dwelling that was unlawfully searched, cannot invoke the protection of the Fourth Amendment to compel the exclusion of testimony obtained as a result of the unlawful search and seizure. It has been held in this court that one who disclaims any interest in the premises searched and the property seized cannot take advantage of the illegality of the search and seizure. United States v. Mandel (D. C.) 17 F.(2d) 270; Klein v. United States (C. C. A.) 14 F. (2d) 35. The same result has been reached in other jurisdictions. McMillan v. United States (C. C. A.) 26 F.(2d) 58; Graham v. United States (C. C. A.) 15 F.(2d) 740; Chicco v. United States (C. C. A.) 284 F. 434.

The government now seeks to extend the doctrine announced in this court in the case of United States v. Mandel, supra, to a defendant who occupies, as lessee or licensee, a dwelling house and who claims to own the property unlawfully seized. I do not think the doctrine should be thus extended....