United States v. Goodhues

• Decision Date: 27 October 1931
• Citation: 53 F.2d 696
• Parties: UNITED STATES v. GOODHUES.
• Court: U.S. District Court — District of Maryland

53 F.2d 696 (1931)

UNITED STATES v. GOODHUES.

District Court, D. Maryland.

October 27, 1931.

R. Bayly Chapman and John R. Elly, both of Baltimore, Md., for petitioner.

Simon E. Sobeloff, U. S. Atty., and Cornelius Mundy, Asst. U. S. Atty., both of Baltimore, Md., for the United States.

CHESNUT, District Judge.

George S. Goodhues resides with his family at 1603 East Thirty-Third street, in Baltimore city. The house is his residence and dwelling house, and is used for no other purpose. On March _____, 1931, this dwelling house was visited by prohibition agents and searched without a search warrant. A large quantity of wines and whiskies was seized and removed by the agents. The petitioner was summoned to appear before the United States commissioner to answer a criminal charge for the unlawful possession of intoxicating liquors. Upon his appearance before the United States commissioner, his counsel announced their intention to file this petition, and thereupon the proceedings before the commissioner were adjourned to await the disposition of the matter by the court. The petition now asks that the evidence obtained by the agents as a result of the search and seizure shall be suppressed and the liquors shall be returned by order of court to the petitioner. The petitioner names as respondents several prohibition agents who seized the liquors and who now have the liquor in their custody, and also the district attorney. These respondents have answered, justifying, on their part, the original seizure of the liquors and protesting their return to the petitioner. Upon the hearing of the petition, testimony was submitted in support of the respective contentions.

At the outset, I had some question as to the propriety of the procedure adopted in this case. While the commissioner and district attorney are officers of this court, the prohibition agents are not; and, in the absence of the pendency of a criminal proceeding, summary procedure to obtain the return of liquor seized by prohibition agents has been held not proper, at least where there has been no unreasonable delay on their part in taking proceedings for forfeiture of the liquor. See In re Behrens, 39 F.(2d) 561 (C. C. A. 2d). But in this case there is a criminal charge now pending before the commissioner, and the jurisdiction of this court is therefore definitely established by Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374. While a case is pending before a commissioner, it would seem undesirable for the District Court to pass upon questions which primarily should be acted on by the commissioner; because it is entirely possible that at the hearing before him the criminal charge may be dismissed, and the practice of appealing to the court prior to a hearing before the commissioner is not to be approved save in exceptional cases. In this case, as it appears, the commissioner has adjourned the hearing before him pending the ruling on this petition, and, as all parties hereto have requested that the court now rule upon the matter on its merits, I have concluded to do so. It appears there has not been uniformity of procedure in such matters, but summary petitions of this nature have been quite common. See Goodman v. Lane (C. C. A.) 48 F.(2d) 32; United States v. Specified Quantities of Intoxicating Liquor et al. (C. C. A.) 7 F.(2d) 835.

Testimony on behalf of the petitioner as to the facts and circumstances of the search and seizure is substantially as follows: Two prohibition agents called at the petitioner's house on March 23, 1931, at about 1:30 o'clock p. m. Petitioner's sister-in-law, then a visitor at the house, opened the door, but declined to admit the agents. Petitioner's wife then telephoned him at his place of business and requested him to come home immediately. He arrived shortly thereafter, found the agents on the front porch, and states that they told him they had information that he had a still in his cellar, and that they would like to search the place, and gave him to understand that they had a search warrant to search the premises. Petitioner denied that he had a still, but admitted that he had some pre-war (pre-prohibition) liquor. He admitted the agents to the house, and they proceeded to the dining room, from which a door leads to the cellar. Upon arriving in that room he demanded an inspection of the warrant, and the agents informed him they did not have a search warrant, but, as they were in the house, they intended to search anyhow. He then called his attorney, Mr. John R. Elly, and told him the situation by telephone, and thereupon Mr. Elly talked by telephone with Agent Duckworth and protested against a search of the dwelling without a warrant. The attorney also told the petitioner to call the police station and ask for police protection. This the petitioner did, and in a few minutes four police officers arrived. Up to that time no further action had been taken by the agents, but upon the arrival of the police officers the agents exhibited their credentials, and the officers then told the petitioner that they would have to support the agents. The door leading to the cellar was locked, and the agents stated they were prepared to break down the door unless the petitioner unlocked it. Yielding to this threat of force and in order to avoid damage to his property, the petitioner thereupon unlocked the door, and the agents, the petitioner, and the officers went to the cellar, and shortly thereafter petitioner's attorney, Mr. Elly, arrived on the scene. The agents demanded that the cellar closets containing the liquor should be opened and threatened to break them open if they were not voluntarily unlocked by the petitioner. Thereupon the petitioner yielded to the demands and unlocked the closets. Upon inspection of the closets, Agent Duckworth stated that all of the liquor could not be pre-war stuff, and announced his intention of destroying it. Against this Mr. Elly and the petitioner vigorously protested, and finally the liquors were removed from the dwelling by the agents and are now in the custody of the Prohibition Unit of Baltimore, an order of court having been signed on March 26, 1931, that the liquors should not be destroyed pending further hearing in the matter.

If this account of the circumstances of the search and seizure is correct, it is entirely clear as a matter of law that the search was unreasonable and illegal and constituted a clear violation of the Fourth Amendment to the Constitution of the United States. Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; GoBart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374. And the assistant district attorney so concedes.

The substance of the testimony on behalf of the agents is in effect as follows: They received an anonymous complaint that the petitioner had a still in his cellar with a tunnel leading therefrom to his garage, and that he frequently changed the color of his automobile (the implication being that petitioner was engaged in manufacturing and selling liquor contrary to law). Acting on this anonymous information only, they went to the petitioner's house, stationed two agents in the rear of the premises and two went to the front door. When petitioner arrived, they did not inform him they had a search warrant, but stated they had information that he had a still, and he replied that he did not have a still, but did have some pre-war liquor; and petitioner said he would show them his premises and the liquor. Thereupon, acting on his invitation and before the arrival of the police officers, they went into the house and were taken by the petitioner into the cellar, and one of the closets containing the liquor was opened voluntarily by petitioner and the contents exhibited. Upon inspection of the liquors, Agent Duckworth announced that he was satisfied that all the liquor could not be pre-war stuff, and thereupon he immediately placed petitioner under arrest and announced his intention to remove the liquors. Petitioner objected to this, and then for the first time demanded a search warrant, and then asked leave to communicate with his attorney. The agents assented to this, and, according to their statement, allowed petitioner to relock the closet, and all returned upstairs to the dining room, the door leading therefrom to the cellar being locked by the petitioner. And the agents assert that it was only after this voluntary exhibition to them of the liquors that the petitioner called his attorney by telephone and summoned the police. The contention of the agents in justifying the search and seizure was that the petitioner had voluntarily exhibited the liquors to them, that they then found evidence of violation of the law, immediately arrested petitioner, and that the subsequent search was justified as incidental to the arrest. See Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409.

The crucial point in the conflict of the testimony of the respective parties is on the point whether the agents were taken into the cellar and shown the liquor and thereupon placed the petitioner under arrest before the arrival of the police officers. Two agents testify positively that this occurred. A third agent (one of the two stationed in the rear and called into the cellar after the police officers had arrived) in part corroborates Agents Duckworth and Chandler. On the other hand, petitioner's account of the matter is positively and explicitly confirmed by the testimony of the sister-in-law, and in material respects by three of the police officers (the fourth not having testified in the case), and by Mr. Elly, his attorney. Agent Duckworth testified, in substance, that in his telephone conversation with Mr. Elly he stated that he had already been shown the liquors by the petitioner and on that...