United States v. Burnside
| Decision Date | 11 June 1921 |
| Citation | 273 F. 603 |
| Parties | UNITED STATES v. BURNSIDE. |
| Court | U.S. District Court — Western District of Wisconsin |
William H. Dougherty, U.S. Atty., of Janesville, Wis., and Arthur Mulberger, Asst. U.S. Atty., of Watertown, Wis.
John A Cadigan, of Superior, Wis., for defendant.
Prosecution by the government against the defendant under the National Prohibition Law (Act Oct. 28, 1919, c. 85, 41 Stat. 305) under an indictment containing three counts, the first of which charges the defendant with having in his possession for beverage purposes, certain intoxicating liquor on June 7 1920. The second count makes a similar charge against the defendant; the date thereof being alleged as March 4, 1920. The third count charges the defendant with maintaining a nuisance at premises known as 606 Tower avenue, Superior, Wis., on March 4, 1920, by keeping therein intoxicating liquor.
Before trial the defendant applied to the court for an order suppressing as evidence the liquor found in the premises in question on the dates above stated, on the ground that the police officers of the city of Superior, who seized the liquor, had no proper search warrants which would justify their entrance into the premises and the seizure of the liquor. It appears that on both occasions the police department made complaint to the municipal court of Douglas county, which court issued a search warrant directing the search of the premises of the defendant; but the defendant claims that both the complaints and the search warrants used were insufficient in that the affidavits and warrants both specifically recite violations of section 1550 of the Wisconsin Statutes and Ordinance No. 880 of the city of Superior.
Section 1550 of the Wisconsin Statutes was a part of the excise law during the time that trafficking in liquor under the license system was in force in this state, and was expressly suspended by the state Prohibition Act (chapter 556 of the Laws of 1919), which was passed by the Legislature pursuant to the concurrent jurisdiction therefor given by the Eighteenth Amendment to the United States Constitution. Defendant contends, also, that Ordinance No. 880 of the city of Superior likewise is an ordinance only applicable to licensed saloons, passed during the time when such licensed business was lawful, and was likewise repealed, or, at any rate, suspended, by the passage of the state Prohibition Act; also that such ordinance does not and could not legally provide for search warrants being issued for the purpose of discovering violations thereof, proceedings thereunder being merely of a quasi criminal character, and not such as to permit of the use of search warrants.
It must be conceded that section 1550 of the Wisconsin Statutes was not in effect at the time these search warrants were issued, and for the purpose of this discussion it may also be assumed (but without deciding the question) that the ordinance referred to furnished no authority for the issuance and execution of such warrants. The state Prohibition Act (chapter 556, Laws 1919), by section 3 thereof, expressly provides that it shall be the duty--
'of all peace officers of the state, to make complaints and institute prosecutions for a violation of the same, and all such officers * * * may, on information and belief make complaint before any magistrate or court to the effect that provisions of this act are being violated and that intoxicating liquors are being kept for purposes of unlawful sale at a particular place to be designated and praying that a warrant may be issued to search the premises where said intoxicating liquors are so being kept and seize the same, and upon filing any such complaint a warrant may issue commanding the officer to search the premises and seize any and all liquors believed to be intoxicating and bring the same before the court for further proceedings according to law.'
While it is true that both of the affidavits underlying the search warrants state that there is 'good reason to believe that an offense under section 1550 of the Wisconsin Statutes has been committed,' and the...
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...is asserted by the Circuit Court of Appeals in the Eighth Circuit in Youngblood v. United States, 266 F. 795. See, also, United States v. Burnside (D.C.) 273 F. 603. In instant case the search was made by federal agents. The general rule is well established that there is no right to search ......
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