United States v. Gass

• Citation: 14 F.2d 229
• Decision Date: 21 August 1926
• Docket Number: No. 3535.,3535.
• Parties: UNITED STATES v. GASS.
• Court: U.S. District Court — Western District of Pennsylvania

14 F.2d 229 (1926)

UNITED STATES v. GASS.

No. 3535.

District Court, M. D. Pennsylvania.

August 21, 1926.

Andrew Hourigan, of Wilkes-Barre, Pa., for petitioner.

Andrew B. Dunsmore, U. S. Atty., of Wellsboro, Pa., and Herman F. Reich, Asst. U. S. Atty., of Sunbury, Pa.

JOHNSON, District Judge.

This is a petition and rule granted thereon to show cause why a search warrant should not be quashed.

James A. Moran, the petitioner herein, who was arrested on the charge of illegal manufacture of intoxicating liquor, alleges that the search warrant, which led to the discovery of the illegal manufacture of intoxicating liquor and the subsequent arrest of the petitioner, was invalid and void, and sets out eighteen reasons, among which are the following, which will be considered:

"(1) The said search warrant was issued in violation of the rights and privileges granted to your petitioner by the Constitution of the United States.

"(2) That the said search warrant is an attempt to take, confiscate, and destroy property without due process of law."

The petition does not allege that Moran was the owner or had any interest in the property searched. He prays that the search warrant be quashed, all property taken under the same be returned, and that the United States government and its officers be precluded from using in evidence any of the property so seized or any clues or leads obtained therefrom.

Thereupon Herman F. Reich, assistant United States attorney, petitioned the court to dismiss the said petition and rule granted thereon for the following reasons:

"(1) The said Joseph Moran is not a person mentioned in the search warrant to which the said petition relates.

"(2) That the said Joseph Moran is not the owner of the said premises, and has alleged no interest therein.

"(3) The said Joseph Moran in his said petition does not claim to be the owner of the property seized under the said search warrant.

"(4) That the said Joseph Moran has not set forth in his petition any interest in the said search warrant or any facts entitling him to the consideration of the prayers set forth in his petition."

The question raised by the petition and rule and the petition to dismiss is whether Moran, who, in so far as the petition shows, was not the owner of the premises searched and had no interest therein nor in any property seized, can raise the question of illegality of the search warrant.

This question was decided adversely to the contention of Moran by Judge Woolley in A. Guckenheimer & Bros. Co. et al. v. United States (C. C. A.) 3 F.(2d) 786, where the following rule was laid down:

"Next, it is clear that a question of the lawfulness of a seizure can be...