United States v. Bumbola
| Decision Date | 05 January 1928 |
| Citation | 23 F.2d 696 |
| Parties | UNITED STATES v. BUMBOLA et al. |
| Court | U.S. District Court — Northern District of New York |
O. D. Burden, U. S. Atty., of Syracuse, N. Y., and J. J. Crowley, Asst. U. S. Atty., of Elmira, N. Y.
Irving K. Baxter, of Utica, N. Y., for defendants.
This is an application made before trial upon affidavits to vacate a search and seizure made by members of the New York state constabulary, commonly called "state troopers," without a warrant, and to suppress as evidence the use of the property seized thereunder, and to obtain a return of the property seized.
The moving and answering affidavits do not, in all respects, agree regarding the circumstances and facts surrounding the seizure. These discrepancies or disputes cannot be passed upon by the court through the medium of affidavits, and, when the statements are irreconcilable, the witnesses not being before the court, the facts and circumstances surrounding the search and seizure, as related by the officers making such search and seizure, must control. Under this rule, in brief, the facts are:
That on November 12, 1927, State Trooper Spellicy was at the Oneida Barracks, N. Y., and by his superior officer was ordered to go out on the highway after a five-ton Mack truck bearing a New York license No. 736-646, which his superior officer informed him had just passed, going east toward Utica, N. Y. He was to check the driver of said truck, to ascertain whether or not he had a chauffeur's license and certificate of registration. In company with Trooper Wind he proceeded east and overtook said truck, and ordered the driver to stop. He asked the driver for his operator's license, which was produced. He asked for the certificate of registration, and the driver was unable to produce same. He then informed the driver that he would have to return to the barracks, in order to check up the ownership of the truck. The driver then asked the trooper, "Can't we fix this up?" and the trooper replied, "that he would have to return to the barracks." The driver then asked the trooper if he could get out of the truck and talk with him, and, having received an affirmative reply, he got off and went to the rear of the car with the trooper, and asked if he could not let him go, and the trooper replied that it was impossible. The trooper then asked the driver what he was hauling, and he replied that he had a load of beer, and, upon being asked what kind of beer, replied good beer, and again asked if it could not be fixed up. At about this time the other occupant of the truck got off and came back and held out his hand to the trooper. In his hand there was a quantity of paper money, and the trooper said, "Nothing doing." The trooper then went back to the front end of the truck, and asked the driver how to enter the truck, and the driver opened a door back of the cab seat, and there the trooper observed a number of bags and cases, and through a hole in one of the bags near the door he saw bottles, and the driver took one of the bottles out of the bag, which was a small pint bottle, and the trooper could see the label thereon, "Black Horse Canadian Ale." The trooper then ordered the driver to turn around and go back to the barracks, and the truck and load was thereafter turned over to United States prohibition officials, and the defendants arrested upon a charge of violation of the National Prohibition Act (27 USCA).
This motion is made by accused, relying almost wholly upon the holding in the case of Gambino et al. v. U. S., 275 U. S. ___, 48 S. Ct. 137, 72 L. Ed. ___ (opinion read December 12, 1927). That case holds that "any officer of the law," mentioned in section 26 of title 2 of the National Prohibition Act (27 USCA § 40), refers to federal officers only, and that New York state troopers are not thereby made agents of the United States. They therefore have no greater authority in the enforcement of the National Prohibition Act than in the enforcement of any other federal law. It always has been, and now is, their duty, equally with federal officers, to enforce all laws passed by Congress, in so far as they have authority so to do. There being no prohibitory law in this state, the possession and transportation of intoxicating liquor, while a federal offense, is not a state offense, and state officials have not the authority of federal prohibition officials, acting under federal law, upon probable cause, to search automobiles for contraband liquors. When, if at all, they stop and search an automobile for the sole purpose of aiding in the enforcement of the federal Prohibition Law they make an unauthorized and unwarranted search.
It is not, however, every unauthorized search and seizure that...
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