United States v. Casino

Decision Date14 February 1923
Citation286 F. 976
CourtU.S. District Court — Southern District of New York

This is a motion made upon affidavit and notice to the United States attorney for the Southern district of New York, praying that all liquors be returned to the petitioner which were taken by prohibition agents or other officers of the government in violation of his constitutional rights. It is made in a criminal proceeding begun by an information against the petitioner for violation of the Volstead Act (41 Stat. 305) by the illegal possession of liquors. The affidavits state that on April 17, 1922, a prohibition agent armed with a search warrant appeared at the petitioner's place of business and searched and carried away liquors found on the premises; that the petitioner believed the warrant was illegal, issued without probable cause, and that the liquor was illegally taken; that it was the purpose of the United States attorney to use the liquor as evidence against the petitioner in the trial of 'this action,' meaning the prosecution for violation of the Volstead Act, in which the motion was made. Neither the search warrant nor affidavits were annexed to the moving papers.

The United States attorney did not rest upon any insufficiency of the papers, nor, on the other hand, did he submit any answering affidavits. He made his case upon a submission of the search warrant itself, the affidavits on which it was granted, and the return. The only material allegations in these papers read as follows: 'On April 15, 1922, at about 5 p.m., I (the federal prohibition agent) saw an automobile driven into a garage * * * over the entrance of which is a sign 'Casino & Co.' Said automobile contained several cases resembling whisky cases, the size and shape of which I am familiar with, and upon the outside of said cases in said automobile were the words 'whisky.' Said automobile was driven into the garage and disappeared from my view. ' This was sworn to, and the warrant was issued on April 17, 1922.

It was agreed upon the hearing that the commissioner, after a hearing under section 16 of title XI of the Espionage Act (U.S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, Sec 10496 1/4p), had refused to quash the warrant and refused to return the liquor to the petitioner, who appeared before him claiming the liquors as owner, just as he does now.

Edward W. McDonald, of New York City, for the motion.

Elmer H. Lemon, opposed.

LEARNED HAND, District Judge (after stating the facts as above).

The affidavit on which the warrant was granted did not allege that on April 17, 1922, the liquor was still in the garage though the return and this motion both show that this was the fact. The question is, then, whether it was enough, to justify a search two days later, that a truck had gone into the petitioner's garage loaded with liquor. Had the agent seen the liquor unloaded from the truck, that would be some evidence of illegal possession by the owner of the garage. Had he waited, and the truck come out empty, that, too, would have been some evidence, or, if the whisky cases had borne any evidence of ownership by Casino, it would have been quite different. The affidavit shows none of these things. On the contrary, it only says that a truck loaded with whisky drove into the petitioner's garage, which for all that appears may have been doing business as a public garage. That, it seems to me, is not enough to give a right forcibly to search the premises two days later. It is equally consistent with a stop by the truck at the garage for repairs, oil, gas, air, or water, or even to pay a visit. It will not, therefore, serve as prima facie evidence that the liquors were illegally retained upon the premises when the warrant issued.

The respondent argues that the petitioner's present assertion of ownership makes up any deficiency in the proof. So it does, but it cannot be used. If the petitioner had suffered a wrong, because his close has been violated and his chattels seized, it is not material that, to obtain redress, he is forced to disclose that he was guilty of a crime. Nor does it make any difference that the facts so disclosed, if known to and stated by the prohibition agents, would have made the search and seizure legal. The Constitution protects the guilty along with the innocent, for reasons deemed sufficient, into which I need not inquire. It means to prevent violent entries till evidence is obtained independently of the entries themselves, or of the admissions involved in seeking redress for the wrong done. Were it not so, all seizures would be legal which turned out successful.

For a similar reason it is not material that the other evidence is absent, which was before the commissioner and which may have induced him to deny quashal of the warrant. While under section 16 he must decide after hearing whether on all the facts there were reasonable grounds for the warrant, that does not dispense with the necessity for allegations in the affidavits themselves, which, if true, show a self-subsisting ground for the issuance of the warrant. It is not enough that on the hearing other grounds may appear, even though not upon evidence extracted by the search itself. The showing for the issue must be enough to stand alone, and must be proved upon the hearing, if challenged. It will not do to abandon the 'reasonable cause' first asserted, and support the search upon a new charge. In this respect the affidavits are like pleadings. Other corroborative evidence, no doubt, is admissible for the United States, but the original allegations must in the end be supported. Hence, if those allegations on their face be inadequate, the warrant can by no possibility be legal. The Constitution means, and section 5 of title XI of the Espionage Act (section 10496 1/4f) contemplates, that the grounds of issuance shall be disclosed at the time of issue. Hence, as it seems to me, the petitioner, however guilty in fact, was the subject of an illegal search, and is entitled to a return of the property seized.

The remaining question is more difficult, and relates to the propriety of the procedure. This is a motion in the criminal proceedings themselves, barely asking for the return of the liquors upon allegations of legal conclusions alone. The only allegation of fact which can be culled from the affidavits is that the petitioner is the owner of the property seized. Perhaps the United States might have rested upon their obvious insufficiency as they stood, though it must be remembered that all the proceedings before the commissioner are in this court, and that I might take judicial notice of them, without proof. However that may be, the district attorney has submitted the warrant, affidavits, and return, and both sides agree that the commissioner has after a hearing denied a quashal of the warrant.

It is clear that the owner of property unlawfully seized has without statute no summary remedy for a return of his property. U.S. v. Maresca (D.C.) 266 F. 713; In re Chin K. Shue (D.C.) 199 F. 282. He may have trespass, or, if there be no statute to the contrary, replevin; but, just as in our law no public officer has any official protection, so no individual has exceptional remedies for abuse of power by such officers. We know no 'administrative law' like that of the Civilians.

The only summary remedy anywhere suggested is section 25 of the National Prohibition Law (41 Stat. 315) and section 16 of title XI of the Espionage Act. In some way the petitioner must bring himself within one of these, or he must sue the prohibition agents for their trespass. When the warrant is quashed, section 16 of title XI provides for the return of the property by the 'judge or commissioner' who issued the warrant and directs the quashal; but section 25 of the National Prohibition Act gives the 'disposition' of all such liquors into the hands of the 'court.' Doubts have therefore arisen (Francis Drug Co. v. Potter (D.C.) 275 F. 615; In re Alpern (D.C.) 280 F. 432) whether, when the warrant is quashed, application for a return should not be to the court, and that has been our practice in this district to avoid any question. Had the commissioner quashed the warrant, the petitioner's practice would have been unquestionably right, even if it be not necessary. Indeed, as there are cases when the liquor may be retained, though the warrant be improper (Vachina v. U.S. 283 F. 35 (C.C.A. 9th); Lambert v. U.S., 282 F. 413 (C.C.A. 9th); McBride v. U.S., 284 F. 416 (C.C.A. 5); O'Connor v. U.S. (D.C.) 281 F. 396), the reason for such a practice is apparent.

The case at bar is, however, one where the commissioner has denied the relief accorded by the statute, and where therefore, there can be no return except that decision be in some way reviewed, because the statute gives a remedy only under the conditions prescribed in sections 15 and 16 of title XI. There are indeed cases where apparently the inquiry under sections 15 and 16 of title XI was made by a judge, though the warrant was issued by a commissioner. Francis Drug Co....

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