United States v. Friedman
| Decision Date | 28 September 1920 |
| Docket Number | 87,168. |
| Citation | 267 F. 856 |
| Parties | UNITED STATES v. FRIEDMAN. SAME v. NESBY. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Charles D. McAvoy, U.S. Atty., of Philadelphia, Pa.
Roy L Daily, of Philadelphia, Pa., for defendants.
The petitions in each case aver that the search warrants issued and the seizure thereunder are void and illegal, because the affidavit on which the warrant was issued does not set forth facts upon which the commissioner could find probable cause. The affidavits in each case are made by a federal prohibition agent and set out that the premises in each case are occupied as a saloon and dwelling, and that on a day and at an hour stated the affiant purchased intoxicating liquor, to wit whisky, in one case two drinks and in the other case one drink, containing one-half of 1 per centum or more of alcohol, and the sum paid for the liquor is set out. These are facts, and upon such facts the commissioner could find probable cause to believe that an offense against the National Prohibition Act (41 Stat. 305) had been committed upon the premises.
It is urged that the affidavit does not set forth with sufficient particularity a description of the property and the place to be searched. As the property is described by street and number, and it is stated that the premises are occupied as a saloon and dwelling, that is sufficient.
It is further contended that the search warrants are not in compliance with the provisions for issuing search warrants under the Espionage Act of June 15, 1917 (40 Stat. 217), made applicable to the National Prohibition Act. Section 2 of title 2 of the National Prohibition Act provides:
One effect of this section is to grant power to issue search warrants under the limitations provided in title 11 of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919 Secs. 10496 1/4a-10496 1/4v, 10212i) to other officers in addition to those named in title XI. It is contended that one of the limitations in title XI is that the property to be seized under the search warrant 'was used as the means of committing a felony.'
Section 25 of title 2 of the National Prohibition Act further...
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In re No. 32 East Sixty-Seventh Street
...301, 304, 15 S.Ct. 610, 39 L.Ed. 709. Therefore the warrant cannot be supported as issued under the Espionage Act. Cf. United States v. Friedman, D.C.E.D.Pa., 267 F. 856. It follows that the provisions of section 16, title 11, of the Espionage Act, 18 U.S.C.A. § 626, are inapplicable to a w......