United States v. Lepper
| Decision Date | 05 April 1923 |
| Docket Number | 3336. |
| Citation | 288 F. 136 |
| Parties | UNITED STATES v. LEPPER et al. |
| Court | U.S. District Court — Western District of New York |
Ganson G. Depew, Asst. U.S. Atty., of Buffalo, N.Y.
O'Connor Newton & Doyle, of Buffalo, N.Y., for defendant Lepper.
The search and seizure warrant against the dwelling of the defendant Lepper is attacked on various grounds. The first is that the facts before the District Judge were insufficient to authorize a search warrant in the nighttime; the second, that the premises consisted of two separate flats occupied by separate families, and that the warrant lacked specificness as to the particular place to be searched; and, third, that the facts set forth were wholly insufficient to authorize the issuance of the warrant to search any private dwelling.
The premises were entered, as defendant Lepper claims, at 5:45 p.m., December 13, 1922, in the nighttime, and searched, with the result that intoxicating liquor was discovered in the lower apartment occupied by him, and then and there seized. The evidence is in dispute as to whether the warrant was executed in the nighttime. Two affidavits have been submitted by which it satisfactorily appears that the prohibition agents entered upon the premises at about 4:30 o'clock more than an hour before the time specified in the moving papers. On that day the sun set at 4:42 o'clock p.m., and hence the search and seizure was actually carried out in the daytime, or during that period immediately preceding the setting of the sun below the horizon. See definition of 'night,' Bouvier's Law Dictionary, Rawle's Revision, vol. 2 p. 502.
It is next objected that the affidavits upon which the warrant was obtained did not show an unlawful sale of intoxicating liquor on the premises, or that the premises were in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. Section 25, National Prohibition Act (41 Stat. 305). It is true that a sale is an agreement for the exchange of property from one person to another at a specified sum, and in a case where an alleged sale of intoxicating beverage is involved in violation of law, a presumption arises that the accused did not make the sale, as the violation must be proven beyond a reasonable doubt. But this strict rule of proof relating to a trial does not apply to the oath or affirmation upon which a search warrant must be based. It is not required that the evidence should show that a crime was actually committed or that the facts should be alleged strong enough to convict the defendant. It is enough if probable cause exists, or a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves, to warrant a discreet and prudent man in believing that a crime is being committed.
The apparent facts in the case at bar in my opinion are sufficient to afford justification for the issuance of the search warrant if they reasonably lead one to the belief that a crime has been committed or is being committed by the person charged. In this view any direct evidence of a sale at the dwelling house of Lepper was not required. True, the...
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In re Dissenting
... ... rules laid down by courts in other states where statutes ... defining search warrant procedure are entirely different from ... our own, and ... 411; Frihart v. State (1926), 189 Wis. 622, ... 208 N.W. 469; Bookbinder v. United States ... (1923), 287 F. 790; Hawker v. Queck (1924), ... 1 F.2d 77, 79, certiorari ... Bookbinder (1922), 278 F. 216; In United ... States v. Lepper (1923), 288 F. 136, the court, ... in holding that probable cause was shown to justify the ... ...
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