United States v. Kozan, 25873.

• Decision Date: 13 February 1930
• Docket Number: No. 25873.,25873.
• Citation: 37 F.2d 415
• Parties: UNITED STATES v. KOZAN et al.
• Court: U.S. District Court — Eastern District of New York

37 F.2d 415 (1930)

UNITED STATES v. KOZAN et al.

No. 25873.

District Court, E. D. New York.

January 10, 1930.

Rehearing Denied February 13, 1930.

Howard W. Ameli, U. S. Atty., and Herbert H. Kellogg, Asst. U. S. Atty., both of Brooklyn, N. Y. (Henry G. Singer, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

Arthur A. Kestler, of Brooklyn, N. Y., for defendant Kozan.

BYERS, District Judge.

Motion to restrain the United States Attorney from using upon the trial of an indictment found against the defendant any of the evidence obtained directly or indirectly as the result of an alleged unlawful and illegal search.

The evidence objected to consists apparently of the proposed testimony of Patrolman August H. Schupp, a police officer of the city of New York; three marked bottles, containing gin as to two, and colored alcohol as to one, all of the forbidden characteristics; and possibly other bottles of liquor.

The search occurred on July 6, 1929, in the rear part of a drug store conducted by the defendant at No. 153 Norman Avenue, Brooklyn, in the Eastern District of New York.

It is undisputed that, on the day in question, Patrolman Schupp entered the defendant's store, spoke to the latter, and endeavored to buy a pint of whisky. He was asked if he had a prescription, and, upon giving a negative answer, was informed by the defendant that no sale could be made.

The police officer withdrew, and, in a few moments, returned with his superior officer, and asked the defendant if he had any whisky on the premises; the defendant answered in the affirmative; the officer then asked if the defendant had a permit, and again received an affirmative answer, and the defendant exhibited that document.

The officer asked where the liquor was kept, and a closet was indicated to him by the defendant.

The patrolman then proceeded to examine the contents of the closet, and to check up the defendant's prescriptions for liquor, and to compare the supply of liquor on hand with the prescriptions, and to search the premises. The result of that visitation is what the defendant believes should be excluded from evidence at his trial.

The police officer has twice testified under oath that he did not observe or note any violation of law, before he made the search and seizure in question.

The government contends that the motion should be denied, first, because the defendant, being a mere licensee, cannot complain of an illegal search and seizure; second, that the police officer had the right to inspect the records of the defendant relating to the sale of intoxicating liquors; and, third, that, no matter how the evidence was obtained, the government may use it upon the trial.

These contentions will be examined in the order in which they are advanced.

The government relies upon the language of the permit, to sustain its first contention; so far as pertinent, it is as follows: "3. That the permittee keep the files and records pertaining to the business conducted under this permit, on the premises covered by the permit, and will make all reports required of him by law or regulation, and will, upon proper request, promptly allow and permit inspection to be made by any officer of the Bureau of Prohibition, of such files and records and of all the premises and property used for and in connection with any operations under this permit, including the stocks of intoxicating liquors on hand and all vehicles passing into or out of said premises."

To decide that a patrolman who is a member of the police department of the city of New York is an "officer of the Bureau of Prohibition" would result in transferring a municipal employee into an agent of the federal government without the act or sanction of the National Legislature, something that this court has not the power to do.

The government also urges that one holding a permit waives his constitutional rights against illegal search and seizure. No authority is cited to sustain the contention.

The suggestion is novel, that, by obtaining a permit under section 6 of title 2 of the National Prohibition Act (27 USCA § 16), one is relegated to an inferior type of citizenship, and, during the life of the permit, he is subject to a disability not shared by his fellow citizens. The plain aspect of the matter is that, by obtaining such a permit, the holder engages to abide by the law and regulations under which it is issued, and no special power is conferred upon any governmental agency, whether national, state, or municipal, nor could it be by the licensee, which is in excess of the powers lawfully confided to public officials.

The second contention is but a repetition, in another form, of what is urged under the first; as the police officer has twice stated under oath that he did not observe or note any violations of law in the defendant's store on July 6, 1929, his subsequent activities were not sanctioned by law.

The third contention, that the evidence in question is available to the government, notwithstanding the manner in which it was procured, is at variance with the decision of the Supreme Court, in Gambino v. U. S., 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381.

The motion is granted; settle order on three days' notice.

On Motion for Reargument.

This is a motion for reargument of a motion heretofore decided on January 10, 1930, granting the motion of the defendant Kozan to restrain the United States Attorney from using upon the trial of this case, as against the said defendant, any of the evidence obtained directly or indirectly as the result of an unlawful and illegal search and seizure.

Reargument is sought upon the contention that, in making its decision, the court inadvertently overlooked title 2, section 34, of the National Prohibition Act (27 U. S. C. § 51 27 USCA § 51) which reads as follows:

"Sec. 34. All records and reports kept or filed under the provisions of this Act shall be subject to inspection at any reasonable hour by the commissioner or any of his agents or by any public prosecutor or by any person designated by him, or by any peace officer in the state where the record is kept, and copies of such records and reports duly certified by the person with whom kept or filed may be introduced in evidence with like effect as the originals thereof, and verified copies of such records shall be furnished to the commissioner when called for."

It is true that the foregoing was neither relied upon by the government, nor sought to be avoided by the defendant, upon the argument or in the briefs of counsel, when...