United States v. Cooper

Decision Date04 February 1924
Docket Number4677.
PartiesUNITED STATES v. COOPER.
CourtU.S. District Court — District of Massachusetts

Elihu D. Stone, U.S. Atty., of Boston, Mass.

Daniel A. Shea, of Boston, Mass., for defendant.

BREWSTER District Judge.

In this case federal prohibition agents entered upon premises of the defendant armed with a search warrant, which, I find, was a valid search warrant, properly issued by a United States commissioner. The agent searched the premises described in the warrant and there found and seized and destroyed a quantity of intoxicating liquor fit for beverage purposes.

A motion to quash the search warrant and to suppress the evidence obtained by the federal prohibition agents, who participated in the search and seizure and destruction of the property seized, was seasonably presented on the ground that such evidence was obtained as a result of an unlawful seizure, in violation of the rights of the defendant under the Constitution and Laws of the United States. The search and seizure are claimed to be unlawful because the prohibition agents wantonly and without right destroyed the liquor seized.

I find and rule that the search would have been in all respects lawful and reasonable, were it not for the fact that the agent serving the warrant and those assisting him proceeded summarily to destroy the liquor found on the premises of the defendant.

This motion presents a question of such importance that I have been led to give most careful consideration to the rights and duties in the premises of the federal agents who execute warrants for search and seizure.

In the first place, it may be well to consider whether the agents have any authority to destroy property seized on a valid search warrant. Under the statutes in force at the time of the enactment of the prohibition law, internal revenue officers had a very limited right to destroy property in case of seizure. This right was limited to the destruction of the still and certain other property, described in the statute designed for the manufacture of liquor having a less producing capacity than 150 gallons per day and which was less than $500 in value, provided the offense involved forfeiture of the property and that it was impracticable to remove the same to a place of safe storage, and the officer was authorized to destroy the same only so far as to prevent the use thereof for the purpose of distilling. But in all such cases the statute required certain formalities respecting report and appraisal under oath (none of which were complied with by the federal agents in the instant case), and the owner was entitled to reimbursement for the value unless it was made to appear to the satisfaction of the officials that the apparatus had been used in unlawful distillation. R.S. Sec. 3332 (Comp. St. Sec. 6129). I have after diligent search, been unable to find any statute which gives to internal revenue agents or officers the right to destroy liquor or any ingredients entering into the manufacture of liquor. It does not appear, therefore, that the agents derive authority to destroy from any provision of the internal revenue laws under section 28 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2o), or section 5 of the Act of November 23, 1921 (42 Stat. 222 (Comp. St Ann. Supp. 1923, Sec. 10138 4/5c)).

Nor are there any express provisions in the National Prohibition Act which confer upon those charged with the duty of enforcing the act the right to destroy either liquor or property designed for the manufacture of liquor. The only provisions of the Prohibition Act which could possibly be offered in justification for such acts are those contained in section 25 of title 2 (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2m), which provide that:

'It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property, * * * and such liquor, the containers thereof, and such property so seized' on search warrant 'shall be subject to such disposition as the court may make thereof. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor, and all property designed for the unlawful manufacture of liquor, shall be destroyed, unless the court shall otherwise order.'

In U.S. v. Intoxicating Liquors (D.C.) 291 F. 717, Judge Morris states that the words 'if it is found,' etc., 'imply that there must be notice and hearing before any disposition of the liquor or property seized can be disposed of by the court. ' If, upon hearing, it is found that the liquor was being 'unlawfully held, or possessed,' or the property had been 'unlawfully used,' it is then subject to destruction or such other order as the court may make. Section 25 does not outlaw all liquors, but only liquors containing one-half of 1 per cent. or more of alcohol by volume and fit for beverage purposes and which are unlawfully possessed. Only outlawed liquors unlawfully possessed and lawfully seized can be destroyed. Here again the matter calls for an adjudication.

It is inconceivable that Congress intended that an agent or officer appointed to enforce the prohibition laws should have the...

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5 cases
  • Guire v. United States
    • United States
    • United States Supreme Court
    • January 3, 1927
    ...the Fourth and Fifth Amendments to the Constitution. This conclusion has received some support in judicial decisions. United States v. Cooper (D. C.) 295 F. 709; cf. Godat v. McCarthy (D. C.) 283 F. 689. But the weight of authority is against it. Hurley v. United States (C. C. A.) 300 F. 75......
  • Empire Fuel Co. v. Hays
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 8, 1924
    ...295 F. 704 EMPIRE FUEL CO. v. HAYS, Internal Revenue Collector. United States District Court, N.D. West Virginia.February 8, 1924 . Arthur. S. Dayton, of ......
  • Bankers Fire & Marine Ins. Co. v. Bukacek, 7 Div. 371
    • United States
    • Supreme Court of Alabama
    • September 8, 1960
    ...of the officials that the apparatus had been used in unlawful distillation. R.S. § 3332 (Comp.St. § 6129). * * * .' United States v. Cooper, D.C., 295 F. 709, 710. The district court decided that 'the act of the agent in destroying the liquor was entirely without any warrant of law and cons......
  • United States v. Clark
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • April 25, 1924
    ...... amend the return. Hence the fact that it was held by the. court that the officer has the right to amend the return. shows that the failure to make the return does not make his. act done under the warrant void. . . The. other case cited to me is United States v. Cooper. (D.C.) 295 F. 709, where the court holds that, where an. officer acting under a search warrant seizes a lot of. prohibited liquors, and instead of bringing these liquors. into the court, and asking for an order of condemnation and. destruction, destroys them where seized, that this renders. ......
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