United States v. Messina

• Decision Date: 02 December 1929
• Docket Number: No. 165.,165.
• Citation: 36 F.2d 699
• Parties: UNITED STATES v. MESSINA et al.
• Court: U.S. Court of Appeals — Second Circuit

36 F.2d 699 (1929)

UNITED STATES v. MESSINA et al.

No. 165.

Circuit Court of Appeals, Second Circuit.

December 2, 1929.

Harold Turk, of Brooklyn, N. Y. (William Berg, of New York City, of counsel), for appellant.

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

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

The defendant appeals from the judgment of conviction on the ground that (1) the evidence introduced by the government was obtained as a result of an illegal search; (2) there was no evidence that Messina was in possession, custody or control of the still; (3) the charge of the trial judge was erroneous and prejudicial.

There was evidence indicating that the officers went to the place because of a complaint of a fire violation. This violation, if it existed, was an offense under a state law or a municipal ordinance adopted under state authority. It is argued that the nature of it was not pointed out by the witnesses, but a general statement that it existed ought to be sufficient, in the absence of any attempt by cross-examination, or otherwise, to question the testimony given at the trial. Marsh v. United States (C. C. A.) 29 F.(2d) 172.

But, if the evidence of a complaint based on an alleged violation of state law was too thin, there was nevertheless no basis for an objection on the part of Messina to the search. He was not the owner of the premises, or a tenant under a lease, nor did he dwell there as an employé or guest. He was a mere casual workman, disclaiming any interest in the premises or the still. The Fourth Amendment to the Constitution safeguards "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, * * *."

Messina denied all interest in the premises and property searched, and there was no invasion of his person. A motion to suppress the evidence offered could not prevail by one with no interest in the premises searched or the property seized. He should at least be dwelling there. Haywood v. United States (C. C. A.) 268 F. 795, at page 803, 804; Lusco v. United States (C. C. A.) 287 F. 69; Remus v. United States (C. C. A.) 291 F. 501 at page 510, 511; Schwartz v. United States (C. C. A.) 294 F. 528; Goldberg v. United States (C. C. A.) 297 F. 98, at page 101; Lewis v. United States (C. C. A.) 6 F.(2d) 222, at page 223; Rosenberg v. United States (C. C. A.) 15 F.(2d) 179; Graham v. United States (C. C. A.) 15 F. (2d) 740; Cantrell v. United States (C. C. A.) 15 F.(2d) 953.

The facts in Cantrell v. United States, supra, decided by the Circuit Court of Appeals of the Ninth Circuit, seem to have involved the identical question of law before us. There one of the defendants was found in immediate charge of a still, but it was held that he could not object to an unlawful search, as he neither owned nor occupied the premises.

We are referred by appellant's counsel to the recent opinion of Judge Dietrich in Alvau v. United States (C. C. A.) 33 F.(2d) 467. There one Rossi, who was apparently a "guest or employee" of Alvau, the owner of a dwelling house in which the latter lived, claimed immunity against a search in the nighttime whereby an illicit still was discovered. The court held that Rossi was entitled to immunity, though he did not own the dwelling house or claim an interest in the still, on the ground that he "for the time being was domiciled in the premises." In the case at bar, Messina was in no sense "domiciled in the premises," "for the time being" or otherwise. Neither the room nor the apartment where the still was found had any appearance of being for living quarters, for they contained no bed, and nothing but a table, two chairs, a water cooler, and the still. No one was there but Messina.

The contention that there was no evidence that Messina was in "custody" or "control" of the still, so as to bring him within the provisions of Rev. St. § 3258 (26 USCA § 281) is without foundation. Officer Armster testified that, when he saw him in the room where the still was in operation, "he was in the act of pouring from a measure some white liquid...