United States v. Nine 200-Barrel Tanks of Beer, 1633.

• Decision Date: 22 June 1925
• Docket Number: No. 1633.,1633.
• Citation: 6 F.2d 401
• Parties: UNITED STATES v. NINE 200-BARREL TANKS (APPROXIMATELY FULL) OF BEER.
• Court: U.S. District Court — District of Rhode Island

6 F.2d 401 (1925)

UNITED STATES v. NINE 200-BARREL TANKS (APPROXIMATELY FULL) OF BEER.

No. 1633.

District Court, D. Rhode Island.

June 22, 1925.

Norman S. Case, U. S. Atty., of Providence, R. I.

Daniel T. Hagan, Chas. A. Kiernan, and John J. Rosenfeld, all of Providence, R. I., for defendant.

MORTON, District Judge.

The claimant owned a brewery in Pawtucket, R. I. On the 31st of December, 1924, Powers, a federal prohibition agent, became aware that a truck had been loaded there with what proved to be beer of over 5 per cent. alcohol content. He seized the truck and contents, and applied for and obtained from a United States commissioner a warrant to search the brewery for intoxicating liquors, containers, and property designed and intended for the unlawful manufacture of intoxicating liquor illegally held and possessed there under the National Prohibition Act. Comp. St. Ann. Supp. 1923, § 10138¼ et seq.

On January 2, 1925, the officers went in under this warrant. They found nine 200-barrel tanks of strong beer and the usual machinery, apparatus, and equipment of a brewery. They thereupon took possession of the brewery. They stayed there four days, for the purpose, it is said, of making an inventory. On January 6th a libel for forfeiture was filed in this court against the entire contents (practically speaking) of the brewery, including steam boilers, steam turbine, and electric generator, refrigerating machines, steam pumps, various other machines, cookers, tanks, etc. The brewery had no permit from the collector of internal revenue. It was being operated, as the claimant asserts, for the manufacture of near beer. The parties agree that in that process beer of full strength is first made and then the alcohol is extracted from it. After the libel was filed, a warrant and monition were issued against the property seized, and it was all taken over by the United States marshal.

The questions now before the court arise on a motion to dismiss the libel, and on motions to quash the search warrant and for the return of the property seized under it.

As to the latter motion: Search warrants are governed by Espionage Act, art. 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼ et seq.). A basic assumption on which that act rests is that the property seized can be "taken" by the seizing officer "from" some person or place and brought "before the judge or commissioner." Sections 2 and 6. A receipt is to be given for the property "taken." The property, if not "restored to the person from whom it was taken," is "to be retained in the custody of the person seizing it," etc. Section 16. Section 25 of the National Prohibition Act is to be read in connection with the Espionage Act, which it incorporates. It relates to property which is movable, and can be disposed of as movable property by destruction or return, and which could be made the subject of replevin proceedings. Real estate and things annexed to real estate are not within its purview, but are to be dealt with under section 22 of that act, in connection with the use of the premises.

There is difficulty in applying these principles to the present case, because what constitutes a fixture is largely a question of fact, and no evidence has been submitted describing the various articles seized. It might perhaps be held that steam boilers, a steam turbine and generator, steam pumps, refrigerating machines, etc., are as a matter of common knowledge attached to the realty and constitute trade fixtures. If so, the search warrant was as to them improperly used; there was an illegal and substantial overstepping of the authority which it gave, and it should be quashed. Mellet & Nighter Brewing Co., Inc., v. U. S. (D. C.) 296 F. 765; U. S. v. 2,615 Barrels of Beer (D. C.) 1 F.(2d) 500; In re Crescent Beverage Co. (D. C.) 297 F. 1009.

As to the beer in the tanks and the loose personal property, e. g., barrels, which might legally have been taken on such a warrant, the question is whether the illegal scope of the warrant and the illegal way in which it was used,...