United States v. Daison

• Decision Date: 31 March 1923
• Docket Number: 8318.
• Citation: 288 F. 199
• Parties: UNITED STATES v. DAISON.
• Court: U.S. District Court — Eastern District of Michigan

288 F. 199

UNITED STATES v. DAISON.

No. 8318.

United States District Court, E.D. Michigan, Southern Division.

March 31, 1923

Earl J Davis, U.S. Atty., and Leonard S. Coyne, Asst. U.S. Atty both of Detroit, Mich.

Grover L. Morden, of Detroit, Mich., for defendant.

TUTTLE District Judge.

This cause is before the court on a petition for the return of certain intoxicating liquor alleged to have been unlawfully seized by federal prohibition agents, and on a motion to quash the indictment herein.

The amended petition, which is sworn to by the defendant, is in full as follows:

'That at daybreak on the 19th day of August, A.D. 1922, he was possessed of a power boat and was operating the same on the navigable waters of the Detroit river. That said power boat had no cabin, but that the contents of the same were covered with tarpaulin and life preservers. That on and at the aforementioned date and time, while operating the said power boat, said petitioner was ordered to stop by persons in another power boat. That petitioner did stop. That said other power boat came alongside of petitioner's boat, and a man, whose name is unknown to this petitioner, leaped aboard this petitioner's boat, searched the said boat, and placed petitioner under arrest. That said person, after search and arrest told this petitioner that he was a prohibition agent. That on and at the aforementioned date and time the said prohibition agent seized the said boat and contents thereof, and directed this petitioner to the pier at the village of Ford. That the contents of said boat consisted as follows: Forty-eight cases of beer; 8 cases of Imperial whisky; 6 quarts of White Horse Scotch. That the said prohibition agents were cruising around the river in a speed boat prior to the illegal arrest of this petitioner. That said prohibition agents possessed no warrant nor process of any kind or nature for the arrest of this petitioner. That the said search and seizure and arrest on the part of the prohibition agents were in violation of the Constitution of the state of Michigan, and the Fourth and Fifth amendments to the Constitution of the United States. That said property taken from the possession of this petitioner is now in the possession of prohibition agents and of the United States district attorney for the Eastern district of Michigan, and that the said district attorney and federal prohibition agents have failed to return to this petitioner the said property seized or any portion thereof. That the said district attorney proposes to use said evidence at a trial of the above-entitled cause, and by reason thereof and the facts set forth the petitioner's rights herein have been and will be violated, unless the court orders the said property returned to this petitioner. Wherefore the petitioner prays: (a) That the said court will find that the said search and seizure was made without any search warrant and is illegal; (b) that the arrest of the said petitioner be declared illegal, as the same was made on the high seas; (c) that the court will find that no authority exists in a prohibition agent to make an arrest, and therefore the arrest was illegal; (d) that the court will order the property returned to this petitioner.'

An answer to said petition has been filed by the federal prohibition director of Michigan, in which the latter alleges:

That the contents of the said power boat were not covered, and that 'a number of cartons were visible and distinguishable'; that 'the prohibition agent who made the search and arrest * * * informed petitioner that he was such a prohibition agent and requested him to stop his launch, and that petitioner did stop, and that said intoxicating liquor was seen by said agent, and petitioner thereupon informed him that he had whisky and beer in said launch, and thereupon the agent took possession of said launch and cargo, and took petitioner into custody as a violator of the National Prohibition Act'; that the prohibition agents referred to by the defendant 'were on duty in a launch in the Detroit river for the purpose of preventing the importation of intoxicating liquor into the United States, and for the purpose of enforcing the National Prohibition Act, and preventing the transportation of intoxicating liquor and apprehending persons engaged in violating said National Prohibition Act'; that 'the property referred to in said petition is now in the possession of prohibition agents and of the United States attorney, and under their control, and that it is not his intention to return said property to the petitioner,' and that 'said intoxicating liquor was intended and designated for beverage purposes and was at the time of said seizure being transported unlawfully, and was not the subject of private ownership, and was therefore not the property of petitioner, and said liquor and said launch used in the transportation thereof are subject to forfeiture and condemnation to the United States, and said petitioner subject to arrest without process'; and that 'the United States attorney proposes to use said evidence on the trial of said petitioner,' and that 'the petitioner was indicted by the grand jury for the Eastern district of Michigan on November 22, 1922, for the importation, transportation, and possession of intoxicating liquors as aforesaid.'

The indictment referred to charges the defendant, in separate counts, with the unlawful importation, transportation, and possession, respectively, of the said intoxicating liquors in an open motorboat on the American side of the Detroit river within this district, in violation of the National Prohibition Act (41 Stat. 305). The motion to quash said indictment is based upon the facts alleged in the aforesaid petition and merely avers (after reciting said facts):

That 'the said district attorney proposes to use said evidence at a trial of the above-entitled cause and that by reason thereof and the facts set forth the respondent's rights herein have been and will be violated, unless the property is returned to the respondent and the indictment quashed.'

No other reason is presented as a ground for granting such motion.

That no grounds have been stated for quashing the indictment is too plain to require discussion, and the motion to quash, obviously, must be denied.

The three reasons advanced in support of the petition, already quoted, will be considered in the order in which they are there mentioned.

1. It is clear that, if the defendant was legally arrested as claimed by the government, the subsequent search and seizure of the motorboat and liquor in question would be lawful without a search warrant. Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177. It is settled law that a person who is committing a misdemeanor, at least if it be also a breach of the peace, in the presence of a peace officer authorized to make arrests, may be arrested by such officer without a warrant for such arrest, and it must now, in my opinion, be regarded as equally well settled that a violation of the National Prohibition Act is such a misdemeanor as justifies the arrest, without a warrant, of a person apprehended while so engaged in such violation, with the resultant right to search for and seize intoxicating liquor found in the possession of the offender at the time of such arrest; the commission of such crime being deemed to be in the presence of such officer when the latter is apprised thereof by his own senses. United States v. Murphy, 264 F. 842 (D.C.); Ex parte Harvell, 267 F. 997 (D.C.); United States v. Borkowski, 268 F. 408 (D.C.); Kathriner v. United States, 276 F. 808 (C.C.A. 9); Elrod v. Moss, 278 F. 123 (C.C.A. 4); In re Mobile, 278 F. 949 (D.C.); O'Connor v. United States, 281 F. 396 (D.C.); Lambert v. United States, 282 F. 413 (C.C.A. 9); Vachina v. United States, 283 F. 35 (C.C.A. 9); McBride v. United States, 284 F. 416 (C.C.A. 5); United States v. Hilsinger, 284 F. 585 (D.C.); United States v. Rembert, 284 F. 996 (D.C.); Bell v. United States, 285 F. 145 (C.C.A. 5). If, then, the 'prohibition agent' in question reasonably believed, on the evidence of his own senses, that the defendant was engaged in the violation of the National Prohibition Act in his presence, he had the legal right and it was his duty to arrest said defendant, and to seize the intoxicating liquor and motorboat being used in the commission of such crime, provided, of course, that he had power to make any arrest. Lambert v. United States, supra; McBride v. United States, supra; United States v. Hilsinger, supra; Bell v. United States, supra.

Furthermore such an arrest is expressly authorized by sections...