United States v. Callahan

• Decision Date: 04 March 1927
• Docket Number: No. 4041.,4041.
• Citation: 17 F.2d 937
• Parties: UNITED STATES v. CALLAHAN et al.
• Court: U.S. District Court — Western District of Pennsylvania

17 F.2d 937 (1927)

UNITED STATES v. CALLAHAN et al.

No. 4041.

District Court, M. D. Pennsylvania.

March 4, 1927.

Andrew B. Dunsmore, U. S. Atty., of Wellsboro, Pa., and Herman F. Reich, Asst. U. S. Atty., of Sunbury, Pa., for the United States.

Joseph O'Brien and T. A. Donahoe, both of Scranton, Pa., for defendants.

JOHNSON, District Judge.

This is a petition and rule granted thereon "to show cause why the property seized under the search warrant should not be returned to the petitioners, and why the evidence obtained upon said search should not be suppressed, and the search warrant quashed, and the Standard Brewing Company's property and the possession of the real estate be surrendered to the said Standard Brewing Company."

The petition and answer of the government thereto raise the following questions, which will be considered in order: First, was there probable cause for the issuing of the search warrant? Secondly, did the search warrant describe the property with particularity? Thirdly, was the period of 13 days between the making of the affidavit and the issuing of the search warrant too great a lapse of time? Fourthly, was the search warrant void, and the search thereunder illegal, because the warrant authorized the officers to enter and search the premises "during the daytime or nighttime," since the affidavit was not positive that the goods to be seized were in the premises to be searched, but where the search is actually made in the daytime? Fifthly, was the failure of the officers to make return and an inventory forthwith fatal to the proceedings?

First, was there probable cause for the issuing of the search warrant? The United States commissioner found that there was probable cause for the issuance of the search warrant, and that the facts which establish the probable cause are contained in the affidavit of the prohibition agents, as follows:

"We, federal prohibition agents, James D. Moore, and C. P. M. Simpson, being duly sworn, depose and say: That on the morning of April 27, 1926, we, in company with Prohibition Agents Fetterman, Fawcett, and Feniello, visited the vicinity of the Standard Brewery Company, in Scranton, Pennsylvania, and while there we saw great volumes of steam issuing from the building, were able to detect a very distinct odor of brew around the brewery, and the railroad tracks leading into the brewery premises showed evidence of very recent use. The Standard Brewery Company is situated on property bounded on the north by the property of the Standard Realty Company, on the south by Walnut street, on the east by the Delaware & Hudson Railroad Company's right of way, and on the west by Penn avenue, and consists of a four-story brick brew house (brewery proper), joined by one-story brick building used as engine room, boiler room, and wash room; one-story frame cooperage house. The office is located on the first floor of a two-story frame building adjacent to the brewery and rented from the Standard Realty Company."

The court is of the opinion that the commissioner was justified in finding that there was probable cause for the issuance of the search warrant in this case, and this position is supported by the following authorities:

In United States v. Lepper (D. C.) 288 F. 136, it was held: "It is not required that the evidence should show that a crime was actually committed, or that the facts should be alleged strong enough to convict the defendant. It is enough if probable cause exists, or a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a discreet and prudent man in believing that a crime is being committed."

In Tritico et al. v. United States (C. C. A.) 4 F.(2d) 664, Bryan, Circuit Judge, said: "The search was not an unreasonable one. The officers, being made aware through one of their senses that the prohibition law was being violated, had the right to enter and make the search, although they did not have a warrant. McBride v. United States (C. C. A.) 284 F. 416."

In United States v. Gaitan (D. C.) 4 F. (2d) 848, on page 850, the following language of District Judge Bledsoe bears on the question involved: "In these days, with the all too widespread disposition to violate the provisions of the National Prohibition Law, made manifest by the congested condition of the calendars of our courts, I am not prepared to say that a person skilled in the subject-matter to the extent that he recognizes the unmistakable odor of fermenting mash is not justified in coming to the conclusion that such mash is being kept and retained for the purpose of distilling illicit liquor."

In Nicholson v. United States (C. C. A.) 6 F.(2d) 569, Evans, Circuit Judge, said: "The information upon which search warrants are secured may come from any source. The olfactory as well as the optic nerves are a dependable source of such information. It is not necessary that written documentary evidence be obtained, nor confessions secured. Plaintiffs in error were obviously conducting a brewery, and the prohibition agents were trained to detect the presence of intoxicating liquor, particularly that known as beer. They were qualified to state what they observed, from which the commissioner was required to find, and did find, probable cause to believe that intoxicating liquor was being manufactured upon the premises described in the warrant."

In Gracie v. United States (C. C. A.) 15 F.(2d) 644, it was held that, "upon the determination by the commissioner of whether probable cause existed for the issuance of a warrant, he is to exercise his own judgment whether the facts alleged in the affidavit constitute probable cause, and, unless this judgment is arbitrarily exercised, his determination that probable cause exists is conclusive."

In Carroll et al. v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, it was held that, "if the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient."

Other authorities sustaining the position of the court in this case are as follows: United States v. Huff (D. C.) 1 F.(2d) 493; Garske v. United States (C. C. A.) 1 F.(2d) 620; Vaught v. United States (C. C. A.) 7 F. (2d) 370; United States v. Old Dominion Warehouse (C. C. A.) 10 F.(2d) 736; United States v. Kasprowitz (D. C.) 14 F.(2d) 193; Weeke v. United States (C. C. A.) 14 F.(2d) 398; United States v. Borkowski (D. C.) 268 F. 408; McBride v. United States (C. C. A.) 284 F. 416; United States v. McGuire (D. C.) 300 F. 98; Steele v. United States, 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757; Cornelius on Search and Seizure, p. 283, § 91; Blakemore on Prohibition (1925 Ed.) 419.

Secondly, did the search warrant describe the property with particularity? Following is the description of the property to be searched as contained in the affidavit for the search warrant:

"The Standard Brewery Company is situated on property bounded on the north by the property of the Standard Realty Company, on the south by Walnut street, on the east by the Delaware & Hudson Railroad Company's right of way, and on the west by Penn avenue, and consists of a four-story brick brew house (brewery proper) joined by one-story brick building used as engine room, boiler room, and wash room; one-story frame cooperage house. The office is located on the first floor of a two-story frame building adjacent to the brewery and rented from the Standard Realty Company."

In the description in the affidavit, and also in the warrant, the property to be searched was "bounded on the east by the Delaware & Hudson Railroad Company's right of way, and on the west by Penn avenue." The reverse of this is the correct description as to these two boundaries; the property to be searched being bounded on the east by Penn avenue and on the west by the Delaware & Hudson Railroad Company's right of way. In all other respects, the description of the property to be searched, the brewery property, is correct, and the description is sufficient to lead the officers to the property to be searched. There was no other brewery property in the neighborhood, and the description in the affidavit and in the warrant would lead the officers, with reasonable effort, to ascertain and identify the place intended to be searched. The description in this case was sufficient. The position taken here is supported by the following authorities.

In Steele v. United States, 267 U. S. 498, on page 503, 45 S. Ct. 414, 416 (69 L. Ed. 757), Chief Justice Taft, in delivering the opinion, said: "The description of the building as a garage and for business purposes at 611 West Forty-Sixth street clearly indicated the whole building as the place intended to be searched. It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended. Rothlisberger v. United States C. C. A. 289 F. 72; United States v. Borkowski D. C. 268 F. 408, 411; Commonwealth v. Dana, 2 Metc. Mass. 329, 336; Metcalf v. Weed, 66 N. H. 176 19 A. 1091; Rose v. State, 171 Ind. 662 87 N. E. 103, 17 Ann. Cas. 228; McSherry v. Heimer, 132 Minn. 260 156 N. W. 130."

In State v. Hesse, 154 Minn. 89, 191 N. W. 267, it was held: "An elaborate description of a rural place by section numbers, etc., and further by a detailed description of the house in its location with reference to a city and highway, was held sufficiently definite, even though the section number was wrong, being 26 instead of 27, the identity of the premises being apparent from the description as a whole."

Other authorities in point are the following: United States v. Harvey (D. C.) 298 F. 106; United States v. McGuire (D. C.) 300 F. 98; Giacolone v. United States (C. C. A.) 13 F.(2d) 108.

Thirdly, was the period of 13 days between the making of the affidavit and the issuing of the search warrant too great a...