United States v. Kelih

• Decision Date: 21 March 1921
• Docket Number: 16469.
• Citation: 272 F. 484
• Parties: UNITED STATES v. KELIH.
• Court: U.S. District Court — Southern District of Illinois

272 F. 484

UNITED STATES v. KELIH.

No. 16469.

United States District Court, S.D. Illinois, Southern Division.

March 21, 1921

Edward C. Knotts, U.S. Atty., and Clark B. Montgomery, Asst. U.S Atty., both of Springfield, Ill.

James M. Bandy, of Granite City, Ill., for defendant.

FITZHENRY District Judge.

Defendant was indicted by the June (1920) grand jury. The indictment contains five counts, charging him with manufacturing spirituous liquor; having possession of liquor; having possession of and under his control an unregistered distilling apparatus; that he did unlawfully make and ferment a certain mash fit for distillation, in a building not a registered distillery; and that he had possession of property designed for use in the unlawful manufacture of liquor, in violation of the National Prohibition Act (41 Stat. 305), on the 18th day of March, 1920. The defendant pleaded not guilty, and made his motion for the restoration of property, charging it was illegally and unlawfully seized by officers of the government, for the reason that the search warrant under which the search and seizure was made was void as being in violation of the Fourth and Fifth Amendments to the Constitution of the United States, in that it was issued to search a private dwelling, in violation of the provisions of title 2, Sec. 25, of the National Prohibition Act, and for the reason that the evidence upon which the government procured the indictment and seeks a conviction was gained by reason of the unlawful and illegal search. The government denied the facts upon which the motion was based. The court heard the evidence without the intervention of the jury.

The evidence disclosed that a number of officers under the direction of M. T. kiggins, prohibition group chief for the then East St. Louis district, armed with a search warrant went to the private dwelling of the defendant, on the 18th day of March, searched his premises, and took therefrom one milk can, 12 gallons of distilled whisky, one copper coil, and 3 gallons of raisin mash. The group chief was accompanied by five officers, some of whom were prohibition officers, two being deputy collectors of internal revenue, one a deputy sheriff, and a constable. They went to his home about 3 o'clock in the afternoon. The defendant was sitting at a table when Mr. Kiggins appeared at the door. Defendant testified that Mr. Kiggins said he was a government officer, was going to search the premises, showed his badge of authority, pushed the defendant aside, and said, 'Come on to the basement;' while Mr. Kiggins testified that he had a search warrant issued by a justice of the peace of Madison county, that he read the most of the warrant to the defendant, except the fine print, and then proceeded to search the house. While Mr. Kiggins was getting in the door, other officers went into the basement, where they found defendant's wife, who protested against their entrance. She was informed that they were government officers, going to search the premises, and they did so, procuring the articles the return of which is sought by the motion.

The officers found a small still in operation in the basement, being operated by defendant's wife, who gave the officers a taste of her product. Defendant said the search and seizure were made without his consent and against his will, and was firm in his testimony that no search warrant was produced, and denies that he was told by anybody that the officers had a search warrant, or a warrant for his arrest. It was admitted by the government that the evidence and the information gained by reason of this raid was the evidence upon which the government expected to ask for defendant's conviction, except the evidence of the internal revenue chemist as to the alcoholic content of the liquor taken.

The search warrant was issued by Charles Sowell, and recites that 'a violation of the National Prohibition Act has been committed, and that an illicit still is in operation and is now concealed in the premises of Joe Kelich at 1735 Walnut street in the town of Granite City, in said county,' etc., and was issued to N. F. kiggins. After the taking of the evidence and at the conclusion of the arguments, an affidavit for a search warrant was produced by the government, and the court informed that the search warrant in question was issued upon this affidavit, which was not denied by the defendant. The affidavit is that of M. T. Kiggins, under date of March 15, 1920, and recites:

'A violation of the National Prohibition Act has been committed, and affiant further states that he has reason to believe that there are illegally manufactured liquors and an illicit still are now concealed in or on the premises at 1735 Walnut street in Granite City and now occupied by Joe Kelich. This affidavit is made to obtain a search for said stolen goods.'

Two of the members of Mr. Kiggins' party were deputy collectors of internal revenue, and testified that when they arrived upon the premises they noticed the odor of the still in operation. Kelih is a laboring man, a Crotian, and does not talk the English language fluently or understand it readily. The house is a small house with a basement under it, and the premises had been their private dwelling for a number of years.

On behalf of the government it is not seriously contended that the search warrant is valid, but it is claimed the defendant has waived his constitutional right by inviting the prohibition officer, Kiggins, and his party into his home and permitting them to search and seize the property in question without objection; that there being two deputy collectors of internal revenue in the party, and, having reason to believe a still was in operation by the odors that they observed when they arrived on the premises, that therefore they had a right to search the premises and seize the property without a search warrant; and upon the theory that the mere fact that an illegal still was in operation in the cellar of the building changed the character of the premises from a dwelling to a distillery.

Important constitutional rights are involved in this case. The experiences of the people of Massachusetts, which resulted in section 14 of the Declaration of Rights 10 years before the Revolution, prohibiting general warrants and the exercise by the government of the power to search places or seize persons, with no specific charge and without a sworn warrant specifying an offense, the persons to be seized, and the objects of the seizure, which said declaration of principles also found lodgment in the Bill of Rights of Virginia, Sec. 10, found crystallization in the Fourth Amendment to the Constitution. This case was largely argued upon the theory that the warrant in question was issued without any oath or affirmation as a basis, but was finally submitted to the court upon the theory that the affidavit above quoted was the basis upon which the warrant was issued.

The language of the Fourth Amendment to the federal Constitution discloses that the purpose of that amendment was to cover the contingencies and the guaranty, the security that was guaranteed to the people by both the Massachusetts and Virginia Bills of Rights, although stated in more apt language:

'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.'

At the time of the submission of the Fourth Amendment, Congress submitted the Fifth, which must be considered and applied in connection with the Fourth....