United States v. O'Dowd

• Citation: 273 F. 600
• Decision Date: 07 June 1921
• Docket Number: 6413.
• Parties: UNITED STATES v. O'DOWD.
• Court: U.S. District Court — Northern District of Ohio

273 F. 600

UNITED STATES v. O'DOWD.

No. 6413.

United States District Court, N.D. Ohio, Eastern Division.

June 7, 1921

H. L Eastman, Asst. U.S. Atty., of Cleveland, Ohio.

W. J Hawley, of Cleveland, Ohio, for defendant.

WESTENHAVER District Judge.

Defendant was by information charged with having unlawfully in his possession 114 quarts of Old Tucker whisky. Upon trial to a jury he was found guilty, and now moves for a new trial. The only error urged in support of this motion is the admission in evidence of some bottles of this whisky and of the circumstances under which it was obtained, which, it is asserted, were seized and removed from defendant's private dwelling without a lawful search warrant.

The whisky in question was found in a one-story frame building used exclusively for lodging or dwelling purposes. The defendant was the lessee of the premises. It will be assumed that it was his dwelling, although he was unmarried, and his brother and father lived there with him. Two police officers of the city of Cleveland, acting without a search warrant and without any direction from any federal officer, entered these premises and found this whisky. At the time of such entry the defendant was absent, and the officers were admitted and permitted to make the search by his brother. The whisky bore labels showing that it had been bottled in bond for medicinal purposes, and when found was wrapped in Pittsburgh newspapers of a date only two or three days prior thereto. Upon finding the whisky, the police officers telephoned the federal prohibition agent and requested him to come and examine it. The latter, upon so doing, informed the officers that, under the National Prohibition Enforcement Act and the regulations with respect to the withdrawal and sale of whisky for medicinal purposes, it could not have been lawfully acquired or possessed by the owners, and thereupon the officers without any instructions from the prohibition agent, and without other warrant or authority, seized the whisky, took it to the police station, and at some later date surrendered it to the federal authorities.

This seizure was made August 3, 1920. The criminal information against the defendant was filed February 3, 1921. A petition was filed herein by him March 23, 1921, requesting its redelivery on the ground that the seizure had been made without a search warrant and in violation of the Fourth and Fifth Amendments to the Constitution of the United States. The court, when the petition was thus presented, declined to consider it, and ordered the trial to proceed, announcing that the question would be reviewed upon objections to the admissibility of evidence. A trial was had the same day, with the result above stated.

The motion for a new trial will be overruled. I am of opinion that, under all the circumstances, no error was committed in admitting this evidence. The application for redelivery was not made within a reasonable time after the alleged illegal seizure. According to Weeks v. U.S., 232 U.S. 384, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, a defendant in a criminal case is entitled to the redelivery of evidence procured by an unreasonable search and seizure only when he makes a timely application; that is, an application within a reasonable time after the alleged seizure. It is also settled law that a court will not delay or halt a trial to inquire whether evidence, otherwise competent, has been unlawfully acquired. Adams v. New York, 192 U.S. 585, 24 Sup.Ct. 372, 48 L.Ed. 575; Lyman v. U.S. (9 C.C.A.) 241 F. 945, 154 C.C.A. 581. Within what time defendant should have made his application, in order to be timely, need not be determined, because, upon any view of the facts, it was made at an unreasonably late day.

This evidence should not have been excluded for another reason. The alleged unlawful search and seizure was not made by or under the direction of any officer of this court or of the United States. It was made by state police officers, acting upon their own initiative. The Fourth Amendment, it is settled law, is a limitation only upon the action of officers of the United States, and not upon the action of private persons or state officials. The object of the amendment was to restrain and prevent arbitrary and despotic action on the part of the national sovereignty, or persons acting under its authority. This is clearly stated in the Weeks and other cases which have followed it. The amendment, while forbidding...