United States v. Hilsinger, 2205

• Decision Date: 26 October 1922
• Docket Number: 2205,2206.
• Citation: 284 F. 585
• Parties: UNITED STATES v. HILSINGER et al.
• Court: U.S. District Court — Southern District of Ohio

284 F. 585

UNITED STATES v. HILSINGER et al.

Nos. 2205, 2206.

United States District Court, S.D. Ohio, Western Division.

October 26, 1922

Thomas H. Morrow, U.S. Atty., and R. T. Dickerson, Asst. U.S. Atty both of Cincinnati, Ohio.

Allen C. Roudebush and Edward M. Hurley, both of Cincinnati, Ohio for defendants.

PECK District Judge.

This is an application for the return of property. The property of which return is sought proves to be six bottles and four barrels of beer, of alcoholic content varying from 1 to 4 per cent. by volume. The following facts are admitted: The petitioner, Hilsinger, has been the receiver of the Schaller Brewing Company, a corporation under the laws of Ohio, for a period of approximately 18 months, and is operating the brewery under an order of the court of insolvency authorizing him so to do. The business that he is so authorized to carry on and conduct is the manufacture and sale of the product commonly known as 'near beer'-- that is to say, beer the alcoholic content of which has been reduced to less than one-half of 1 per cent. by volume. The receiver, as such, is a permittee of the government of the United States, by the collector of internal revenue, under the regulations promulgated under the Volstead Act, for the development of such near beer from beer containing a higher alcoholic content. The court of insolvency has not authorized him to produce as a finished product, or manufacture for sale, beer containing one-half of 1 per cent., or in excess thereof, of alcohol by volume. He has not been directed by the court of insolvency to make application for the return of the property here seized. The searches and seizures had in this case were not upon any search warrant or under color of any search warrant.

It further appears from the evidence taken on this application that prior to September 9, 1922, the general prohibition agents, acting under the Commissioner of Internal Revenue had direct knowledge of facts leading reasonably to no other conclusion than that the Schaller Brewing Company was supplying customers with real beer. On that day the general agent, together with subordinates, saw a truck being loaded with kegs at the Schaller Brewing Company, while Hilsinger one of the applicants, being the receiver of the brewery, apparently stood lookout at the door, and, by gesture, directed the truck to start. The agents followed and detained the truck, which was making deliveries, and, having displayed their badges of authority, ordered the driver to drive to a place in the city where it seems the agents were in the habit of testing beer for alcoholic content. Upon being interrogated, the driver stated that he had, among others, four barrels which contained real beer, upon the truck, and pointed them out. The evidence upon this point is in some dispute. The driver has here testified to the contrary. Having regard to the way in which his testimony was given, the contradictory statements, the answers that he had no remembrance of things which obviously would lie within his memory, his general manner of testifying and appearance were such as to leave no doubt in my mind that i ought not to accept his testimony as against that of the agent in charge, who testified with apparent candor and directness.

They seized the four barrels so pointed out, which are those in question. All of those, upon analysis, turned out to contain beer of an alcoholic content of about 3.91 per cent. by volume. They detained the driver for a while, but later released him. Then they went to the brewery, where apparently they were admitted without controversy, made a similar display of authority to Hilsinger, the receiver in charge, called for the brewmaster, then forcibly prevented the turning out of certain beer in the taproom, and thereafter proceeded to inspect, investigate, and take samples from the beer contained in the various vats, barrels, and bottles in various parts of the building. The keg on draught in the taproom, which the employees were hurrying to turn into a sewer upon the appearance of the agents, was of alcoholic content of about 4 per cent. by volume. The agents found other kegs of similar content in the rackroom, ready for delivery. They also found bottled beer of alcoholic content from 1 to 1 1/2 per cent. by volume.

The dealcoholization process in use at the brewery was simply the boiling out of ordinary beer, allowing the alcohol to escape, when transformed into a gas, into the air. The agents took samples from these various bottles and kegs. These samples, together with the four barrels seized from the truck, are the property of which the applicants, who are now under indictment for conspiracy to violate the Prohibition Act, seek the return, upon the ground that their constitutional rights have been invaded by the search and seizure aforesaid.

The questions involved are approached in the light of the instruction of the Supreme Court in the recent cases of Gouled, Amos, and Silverthorne (Touled v. United States, 255 U.S. 298, 41 Sup.Ct. 261, 65 L.Ed. 647; Amos v. United States, 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319) that the Fourth Amendment to the Constitution of the United States, guaranteeing the people immunity from unreasonable searches and seizures, is one that deals with a fundamental right, similar to the rights to trial by jury, due process of law, and habeas corpus. It is not to be frittered away by exceptions, or whittled down by judicial interpretation.

The questions here presented involve the right to seize contraband articles in transit, in motion, when no reasonable opportunity to obtain a search warrant is afforded, and the right to inspect industries where excisable articles are being produced. I know of no pronouncement of the Supreme Court dealing directly with either of these subjects in the light of the Fourth Amendment to the Constitution. I recognize the subject as being one of the utmost practical importance. On the one side stand the fundamental rights of which I speak, upon the other side stands the impossibility of enforcing the Eighteenth Amendment and the law, unless there is, under some circumstances, some opportunity for some such inspection as that in question.

Upon the evidence, there is no doubt in this case that the beer on the truck and in the rackroom and the taproom at the brewery was intended for sale for beverage purposes, in violation of the National Prohibition Act (41 Stat. 305). It would be simply to close our eyes to the patent facts to say otherwise. Therefore no property right existed in this beer. It was contraband. It was subject to seizure by the government of the United States wherever and whenever it could be lawfully got at by the officers. National Prohibition Act, Secs. 25, 26. It therefore follows with certainty that there was nothing unlawful in the seizures provided the searches were lawful, and so the question to be considered is the right of the national prohibition agents to search, first, the truck, and, second, the brewery.

Inasmuch as the truck was being used in the unlawful transportation of intoxicating liquors, an offense against the United States was being committed in the actual presence of the officers, and was then and there admitted by the driver. This not only subjected the driver to arrest and prosecution, but the truck and its contents to forfeiture. Furthermore, it was perfectly apparent that the driver was acting in concert with others. Under the circumstances, it is thought that, if the federal officers, from the exercise of their own senses, coupled with information from sources so reliable that a prudent and careful person, having due regard for the rights of others, would act thereon, have reasonable and probable cause to believe that an offense of unlawful transportation is being committed in their presence, and have no opportunity to obtain a warrant, they may arrest, search, and seize.

The right to search one lawfully arrested is recognized in the case of Weeks v. United States, 232 U.S.at page 392 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177. There is no doubt of the right to arrest without warrant in case of reasonable ground to believe that a felony has been committed and that the person present has committed it, or, when a misdemeanor is in process of being committed, in the presence of the arresting officer. And, under the authorities, in those sets of circumstances, the arresting officer may search and seize. 5 Corpus Juris, 401, 405, 416, 434; In re Morrill (C.C.) 35 F. 267. It is to be borne in mind that here the seizure was not merely of evidence. Such a seizure was condemned in the Gouled Case. The seizure here was of contraband, and, as I have said, properly subject...